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Campbell, C. J.
Yan Yranken brought this suit and recovered judgment below against Tabor, for a claim of $50 assigned to him by one Thomas Lawrence. The claim was a balance due on a horse trade, and was assigned to Van Vranken in July, 1877. At the time of the assignment Lawrence gave Van Vranken an order on Tabor for $50 payable to bearer. Tabor was notified of the transfer as admitted, early in August, on the 7th or 8th.
On the 2d day of August, suit was brought by one Charles B. Worth against Lawrence, and a garnishee summons was issued against Tabor as a debtor of Lawrence, returnable August 13th. On the return day Tabor appeared and admitted that when the summons was served on him he owed Lawrence fifty dollars payable September 1, on the horse trade. After judgment had been rendered against Lawrence in the principal suit, Tabofpaid over the fifty dollars to the justice.
In the present suit Tabor pleaded the general issue without any notice of special defense. On the trial the defense set up was first, failure to prove plaintiffs case, and second, payment under the garnishee process.
The special count in the declaration very clearly covered the cause of action relied on. The order, being a bill of exchange not accepted created no liability, but it for that very reason did not extinguish or change the character of the original liability, and was not inconsistent with a transfer or assignment of it. And the circuit court very properly held that on a trial there on the merits it was not important what the plaintiff may have relied on in the justice’s court, inasmuch as the assigned claim was declared on, and was the basis of recovery, and the only one apparent. If an assignment was really intended the order was a proper auxiliary to aid in completing it.
The defense resting on the garnishee proceedings was properly excluded. It was not set up under the plea, and inasmuch as it was in the nature of a defense of former recovery for the same subject matter, it could not be shown under the general issue alone. But- there was no ground for such a defense. The assignment was known to Tabor before he made his disclosure. He did not see fit to mention it but made an unequivocal admission of his indebtedness to Lawrence as if no such assignment had been made or heard of. Had he mentioned it he would have escaped liability, as he no longer owed the debt to Lawrence. It was his own fault that he was made liable on a debt that he did not owe. Newell v. Blair, 7 Mich., 103. The rights of an assignee cannot be forfeited by the action of a garnishee in the assignee’s wrong. Johnson v. Dexter, 38 Mich., 695.
These are the only questions properly raised on the record.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
On the 6th of June, 1873, Wilcox was owner of lot 18 [of Walker’s subdivision of park lots 49, 50, 51 and 52] in. Detroit, extending from Woodward avenue to Cass avenue, a distance of some five hundred feet, and on that day he borrowed $6500 for three years, and as security gave his personal bond and also a mortgage on the whole of this lot. May 2d, 1875, he sold defendant in error a small part of the lot, being fifty feet front on Cass avenue and about one hundred and eighty feet deep, and equal in value to about one-eighth of the value of the entire lot.
He gave a deed in which his wife joined, of the piece sold, and inserted the following covenants:
“And the said parties of the first part, for themselves, their heirs, executors and administrators, do covenant, grant, bargain and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents they are well seized of the above granted premises in fee simple. That they are free from all incumbrances whatever except a mortgage of $6500 on this and the remainder of said lot 18, which they agree to pay and remove when due, and that they will, and their heirs, executors and administrators, for them shall warrant and defend the same against all lawful claims whatsoever.”
The premises have been enjoyed by the defendant in error without any disturbance and he has never paid or been called on to pay anything in consequence of the mortgage. But as the mortgage was not paid when it became due, the defendant in error instituted this suit on the covenant relating to it in the deed. There was neither an averment of special damage nor any offer to prove such damage. It appeared that the plaintiff in error remained owner of the rest of the lot and that although the consideration was described as being $2000, it was actually less.
The court instructed the jury to find for defendant in error the full amount called for by the mortgage together with the interest thereon, and they accordingly returned a verdict for $7095.
The main contention is upon this allowance of damage: the plaintiff in error insisting that only nominal damages were authorized, and the defendant in error defending the allowance made.
The real question is one of interpretation to ascertain the true intention of the parties, and a proper solution requires that attention should be given to the whole instrument and also to the surrounding circumstances.
The mere letter of the deed is not positively controlling. Broom’s Max., 611; Wharton, 167. We may fairly suppose the parties were seeking reasonable and just ends, and that neither contemplated any harsh or oppressive result or any result not agreeable to prudence or natural equity. The defendant in error was buying only a small portion of the mortgaged premises, and there was no ground for apprehending that the mortgage debt or any part of it might ever be for him to pay. In case the debt should not be obtained on the bond and recourse should be had to the mortgage the residue of the land, worth many times the amount of the debt, would be subject .to be first sold. The title of the purchaser was guarded by covenant of warranty, and the general covenant protected against other incumbrances.
The debt was owing by plaintiff in error to a stranger and not to defendant in error or to any third person in his interest or for his relief, and his sole interest in its being paid was the fact of its being a subsisting incumbrance, and payment to bim of the amount would not diminish the liability of plaintiff in error a single dollar on the mortgage. It could only enrich the defendant in error without the least corresponding benefit to the plaintiff in error, and we have only to suppose the residue of the lot to have been sold in several parcels in the same way to perceive to what extravagance the sense put upon the transaction would lead. The debt owing by plaintiff in error to his mortgagee would be still unpaid after having paid to his grantees several times the amount of it and more than the whole consideration received and more than the, entire actual value of the lot.
We think the parties did not intend to make failure of plaintiff in error to pay his mortgage debt to the' owner of it on the day and hour of its becoming due, the final and conclusive ground of a forfeiture to defendant in error of an equal amount and more than three times the consideration or value of his purchase.
The design was protection and indemnity, not penal consequence or any liquidation of damage. By the specific covenant, which is the undertaking on which the defendant in error relies, the engagement is to pay a third person the mortgage debt, and not defendant in error, and the latter can only claim what in justice and equity he ought to have on account of failure to pay at the specific time, that debt to such third person, and according to the present record he was not entitled to more than nominal damages.
Counsel for defendant in error made a strong argument upon authorities to bring the covenant within a class of cases holding that when an agreement stipulates for the payment on a named day by one of the parties to it of a fixed sum to the other, or for his benefit, the prima facie measure of damages is the exact sum stipulated, with interest when interest is recoverable. As we construe the covenant differently, an examination of the authorities cited by the counsel does not appear to be necessary.
The judgment should be reversed with costs and a new trial ordered.
The'other Justices concurred. | [
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Souris, J.
On September 21, 1946, costs in the amount of $118.50 were taxed against Dewey M. Spears, plaintiff and appellant herein, in favor of Eva Mae Spears, the defendant herein, in the Oakland county circuit court, at law, in a will contest case. On January 2,1948, a writ of execution issued out of said court, and on January 5th levy was made upon a residence owned by plaintiff and occupied by a tenant. In May, 1948, defendant purchased the property at the sheriff’s sale for $165.84. In the following year, on August 30,1949, after the statutory period of redemption had expired, defendant recorded the sheriff’s deed to the property. Suit in chancery was instituted within the following month, on September 26, 1949, for an order permitting plaintiff to redeem the property from the sheriff’s sale.
At the conclusion of proofs, the trial judge took the case under advisement and subsequently filed his opinion directing that an order of dismissal of the bill of complaint be presented for entry. Prior to the entry of the order of dismissal, however, plaintiff returned to the law side of his controversy with Mrs. Spears, the will contest case, and moved to quash the levy made upon his property. In due course, an order of dismissal was entered in the chancery case, and an order denying plaintiff’s motion to quash was entered in the will contest case on the law side of the court. Both orders are here on appeal, the cases having been presented simultaneously to this Court.
These parties have been before this Court previously in litigation concerning the same property. Spears v. James, 319 Mich 341. Indeed, the record discloses that they have frequently litigated their differences in the State and Federal courts, 5 appeals having been taken to the United States supreme court. Plaintiff is Mrs. Spears’ brother-in-law. She lives next door to the property sold by the sheriff. That property was purchased by her now deceased husband, title having been taken in the names of plaintiff and 2 sisters, a life estate only having been obtained by defendant’s husband, thereby • barring any claim of dower defendant otherwise may have had in the property. Mrs. Spears’ seemingly inevitable claim of dower was rejected by this Court in Spears v. James, supra. Within one month following the decision of this Court in that case, Mrs. Spears caused the writ of execution to be issued and levy made upon the very property in which she had claimed, unsuccessfully, a dower interest.
The property is located in Pontiac, on Murray street. No testimony whatever was offered in the chancery action regarding its value, although such value was alleged by plaintiff’s bill of complaint to be worth $6,000 and by defendant’s amended answer to be worth $4,500. In the hearing held on the motion to quash the levy in the will contest action, however, plaintiff testified the cash value of the house was then (1951) about $4,500. Plaintiff relies heavily upon the fact that the $165.84 paid by Mrs. Spears at the sheriff’s sale was substantially below the value of the property. No claim is made by plaintiff that the levy and subsequent sale were not procedurally regular. Instead, he claims that under the peculiar facts of this case Mrs. Spears should have given him personal notice of the events leading up to the loss of his property by levy and sale, and that had she done so, he would have paid the taxed costs before levy or he would have redeemed from the sheriff’s sale.
The trial chancellor ruled that plaintiff’s bill of complaint should be dismissed because plaintiff failed to show that Mrs. Spears committed or prac ticed any fraud upon’plaintiff in connection with the statutory proceedings to collect her costs taxed in the will contest case. According to our practice, we proceed to review de novo, on the whole record to determine whether or not plaintiff is entitled to the relief he seeks.
In the will contest case, plaintiff was originally represented by an attorney, who also was his nephew. Following the taxation of costs against plaintiff in that case, his attorney was disbarred on October 28, 1946. Defendant’s attorney requested plaintiff to advise him of the name and address of another attorney to be substituted in the place of the disbarred attorney. An examination of the original record in the will contest case discloses that Mr. Hampton, Dewey Spears’ present attorney, first appeared in that case in January of 1951, but testimony offered below discloses that Mrs. Spears knew that Mr. Hampton was representing her brother-in-law at least as early as November 19, 1948 (long before the expiration of the redemption period), on which date Mr. Hampton paid her approximately $900 in plaintiff’s behalf in settlement of a mortgage transaction not otherwise material herein. During her dealings with Mr. Hampton, Mrs. Spears said nothing to him about the purchase of plaintiff’s property at the sheriff’s sale. Notwithstanding that testimony in the record below, the trial chancellor said in his opinion, “the plaintiff Dewey Spears has only himself to blame for his present predicament for refusing to be represented by anyone other than his kinsman and friend,” the disbarred lawyer. We can find nothing in the record before us which supports this finding of the trial court, the importance of which finding to the decision below is reflected in the following statements from the trial court’s opinion:
“Due to family strife and bitterness incidental to litigation no opportunity presented itself for the parties to discuss and adjust their differences on a friendly basis. Due to the fact that plaintiff herein insisted upon being represented by (his disbarred attorney), defendant was entirely justified in dealing in a most precise and technically correct fashion with the plaintiff and then only through her attorney. * * *
“In other words, it is the feeling of this court that the plaintiff is not in a position in a court of equity to predicate the relief which he seeks upon his own stubborness and upon his own refusal to recognize this court’s order of disbarment of his attorney.”
The record discloses that Mrs. Spears encountered plaintiff, fortuitously, on the same date she received the above-described mortgage payment from Mr. Hampton, but said nothing to him either about her purchase of his property at the sheriff’s sale or about the impending expiration of his redemption period. The record is silent concerning other encounters between the parties, but Mrs. Spears knew where plaintiff lived and she knew his attorney. She lived next door to plaintiff’s property which she seeks thus to acquire, other attempts having failed. But Mrs. Spears stood silently by, without making ■any demand upon plaintiff or giving any actual notice to him, and permitted him to pay $114.79 in taxes upon the property after the date of levy, $65.91 of which he paid after the date of sale, and to pay $57.50 for a new hot water heater, furnace grates and paint for the house located on the property.
Her silence, under these circumstances, becomes even more significant when there is added to this recitation the fact that plaintiff’s property had long been occupied by a rent-paying tenant, which fact Mrs. Spears knew, her own residence adjoining the property here involved. The tenant paid plaintiff $30 per month in rent.' He paid the same rent during Mrs. Spears’ husband’s lifetime and, on 1 or 2 occasions during the husband’s lifetime, paid the rent to Mrs. Spears herself in her husband’s absence. Her judgment for costs against plaintiff was in the sum of $118.50. She knew that plaintiff collected at least $30 per month from his tenant for rental of the premises. Four garnishment proceedings against the tenant, 5 at the most, would have provided sufficient funds to satisfy her claim against plaintiff, including any additional costs. But, Mrs. Spears chose the course of inaction, as well as of silence.
The only question to be decided in this case is: Shall one in whose favor costs have been taxed for the collection of which a writ of execution has been issued, levy made upon real property of the debtor, and sheriff’s sale thereof held, be permitted to bid in said property for a shockingly inadequate price without requiring more than just a technically correct compliance with the procedural requirements of the statutory provisions for sale of real estate on execution? We think not where circumstances, such as recited herein, disclose unfairness bordering, at the very least, on fraud.
A very similar factual situation can be found in the reports of the supreme court of Washington, Lovejoy v. Americus, 111 Wash 571 (191 P 790), cited with approval in Greenberg v. Kaplan, 277 Mich 1. Defendant attempts to distinguish Lovejoy v. Americus on the ground that the trial chancellor here found that plaintiff knew of the levy prior to the expiration of the redemption period. A very careful reading of the record presented to this Court fails to disclose any evidence whatever that plaintiff had such prior knowledge. As a matter of fact,-the only evidence disclosed by tbe record is directly to tbe contrary. He bad no knowledge of tbe writ of execution, levy or sale until after tbe expiration of tbe redemption period, and we so find, this review being ele novo, as previously stated. Tbe similarity between tbe facts in Lovejoy v. Americus, supra, and tbe facts of tbe case at bar, can best be shown by tbe following statement from tbe opinion of tbe Washington court (pp 574, 575):
“After tbe issuance of tbe execution, followed by tbe sheriff’s sale, and while tbe rights of respondents were passing away by tbe lapse of time into tbe bands of appellant Americus, the continuous dunning theretofore engaged in was changed into an apparently wary and crafty silence, highly calculated to, and actually succeeded in, lulling the respondents into a sense of security until tbe year for redemption passed by. Graffam v. Burgess, 117 US 180 (6 S Ct 686, 29 L ed 839). Tbe judgment, with interest and costs, could have been satisfied, prior to tbe execution, by garnishment proceedings against tbe tenant of respondents for less than 5 months’ rental, while during tbe period of redemption from tbe sheriff’s, sale the amount of tbe judgment, interest, and costs,, and increased costs, of $87.92, could have been satisfied by less than 6 months’ rental from tbe same tenant.”
Tbe conclusion of tbe Washington court is likewise peculiarly applicable here:
“Tbe obviously studied course of tbe judgment creditor in refusing or failing to pursue those plain, simple, and adequate ways to collect, constitute in part that unfairness which, coupled with tbe shockingly inadequate price for which they purchased at tbe execution sale, fully warranted- respondents in their appeal to a court of equity for relief.”
For similar rulings on similar facts by. other courts, see Graffam v. Burgess, 117 US 180 (6 S Ct 686, 29 L ed 839), and Pender v. Dowse, 1 Utah 2d 283 (265 P2d 644, 42 ALR2d 1078).
The relief sought by plaintiff from this Court of chancery is an additional period of redemption, his statutory right of redemption having been denied him by defendant’s unfair conduct. This relief he shall have. The decree of the circuit court dismissing plaintiff’s bill of complaint is reversed and the case remanded for entry of a decree granting plaintiff the right to redeem within 1 year from the entry of said decree.
In light of the foregoing disposition of the chancery action, the order of the circuit court denying plaintiff’s motion to quash the levy in the will contest .action is affirmed.
Costs to appellant.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh JJ., concurred.
CL 1948, § 623.96 (Stat Ann § 27.1595).
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Graves. J.
Goldberg was convicted on a charge of receiving stolen goods knowing they were stolen. The information was in the usual form and did not allege the time or place of the theft.
The evidence for the people, admitted against objection, was directed to make out that the stealing was in Canada. The defense first argued against the admission of this evidence, and secondly in favor of an instruction in relation to it, that the charge made in the information imported no more than that the theft was a domestic one, and not a larceny committed in a foreign country, and hence that proof that the goods were stolen in Canada was not pertinent to the charge and would not support it. The court ruled adversely and this presents the first exception.
In prosecuting for the act imputed to Goldberg, the People count on the second section of the law of 1850, being § 7607 of the compilation of 1871. It is as follows:
“ Every receiver of personal property that shall have been feloniously stolen, knowing the same to have been stolen, may be indicted, convicted, and punished in any county where he received or had such property, in the same manner that receivers of personal property stolen in this State are indicted, convicted, and punished, notwithstanding such theft was committed in airy other state or country.”
The learned counsel for defendant argues that in order to convict under this provision, where the theft has been committed in “another state or country,” it is indispensable that the information set forth the place, and if his position depended on general reasoning, it would be difficult perhaps to overcome it.
But the question does not turn upon notions of expediency or any abstract ideas as to what would be most felicitous in pleading or theoretically wise.. The provision first directs attention to the “manner” in which receivers of property stolen in the State may be “indicted,”-convicted and punished, and then in the most express terms declares that in case the property has been stolen “in any other state or country,” the “manner” of indicting may be the same. The provision applies of course to informations, and hence it follows that the right is given positively to inform in the same “manner” where the goods have been stolen “in any other state or country” as where they have been stolen in this State. The matter is not left to be decided on any judicial views of what would be best. The statute has determined, and the validity of the regulation is not questioned.
The only inquiry is as to whether it was or is necessary to set forth the place of the theft if committed in this State. No one contends that any such averment is or has been necessary. The authorities without exception hold that no such allegation is required; Holford v. The State, 2 Blackf., 103; 2 Bishop’s Crim. Pro., § 984. See also Com. v. White, 123 Mass., 430, and United States v. Cook, 17 Wall., 168. The Michigan cases ' cited to support the position of defendant’s counsel do not apply.
Two witnesses, Sturgeon and Shepard, testified for the People that they, in company with one McCoy, stole the goods, and in the evening of the day on which the theft was committed, brought them to Detroit and there immediately delivered one parcel, and the next night the rest, to the defendant; that the delivery was to him alone, and that he paid them for the goods. One Girardin also swore to conversations with defendant which went to corroborate the testimony given by the thieves about defendant’s reception of the property. The testimony of two other witnesses tended to show that the goods were found at the house of one Goldsmith, who was defendant’s brother-in-law. Goldsmith was in court, but not being called by the People, defendant’s counsel, after defendant had made his statement, asked the court to require the prosecution to call Goldsmith as a witness for the People and the court refused, and this presents the remaining exception.
• The objection cannot be maintained. The offense consisted in the guilty receiving of the property, and the evidence for the People was aimed to make out that this was a distinct personal act identified by direct proof; that it was accomplished and complete apart from any subsequent deposit at Goldsmith’s, and it is not pretended that Goldsmith was present at the fact. Indeed the evidence imports that he was not. The case did not, therefore, impose any duty upon the prosecution to call him as a witness. He was in court and might have been called by the defense, but was not* The exception has no merit.
The exceptions should be overruled and it should be certified to the court below to proceed to judgment.
Campbell, C. J., and Cooley, J., concurred.
Marston, J.
I am unable to agree with my brethren, as to the sufficiency of the information in this case. I think this question has not heretofore been distinctly passed upon in this State. I do not overlook the-decision of this court in People v. Williams, 24 Mich., 156, which holds that where a larceny has been committed in another state of our Union, and the wrong is-continued within our own State, the party may be here indicted and tried, -under the statute, in the same manner as if the larceny had been committed in this State* I am not willing, however, to gradually keep extending the doctrine there laid down. I understand- one of the fundamental rules of criminal pleading to be, that the offense charged must be set forth in the information with sufficient fullness and accuracy, so that the accused may be informed of the nature of the accusation, and that he may know what he is to meet, and prepare for trial. The original larceny in this case, if any, was committed in a foreign country. If no larceny was there committed, the respondent in this case was not guilty of the offense charged, of receiving stolen property. Upon the trial the first and most essential step would be for the prosecution to show that a foreign crime had been committed, an essential matter, of which the information gave not the slightest intimation; but upon its face, in so far as it alleged anything, alleged a larceny in Wayne county in this State. Such evidence of a foreign crime when first introduced must necessarily be a surprise to the accused, -if innocent, and must almost inevitably find him unprepared to meet it.
The principles laid down in several important cases in this State, which were fully considered, in my opinion condemn the method of pleading resorted to in this case, and in my opinion they should be followed. Brown v. People, 29 Mich., 232; People v. Olmstead, 30 Mich., 431; Meister v. People, 31 Mich., 99. | [
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Campbell, C. J.
Jeudevine was agent for the Weed Sewing Machine Company at Mt. Pleasant, and had become somewhat in debt to- them. He had given bonds originally, and in October, 1875, .one Pierson, acting for the company, applied for a further bond, taking possession of the machines on hand, and promising that on receipt of a satisfactory bond they should be returned, and he should be continued as agent. On this understanding Jeudevine and Taylor gave bond to the company conditioned to secure past and future indebtedness to the continuing amount of $1000. After receiving the bond, the agency,was not continued and the machines were not restored, and this fraudulent conduct was found by the jury, as the issue stood before them, to have been intended in the first place, and the bond secured by that means.
This defense was set up in a suit upon the bond for old indebtedness. Objection to its reception under the general issue was overruled, and evidence was also received under objection, of a subsequent statement by Pierson that the bond was of no use to the company and he would return it.
This testimony of Pierson’s statements was objected to as beyond his authority. As he appears to have been the person having complete control of the arrangements, so far as they are brought home to any one, we think it might fairly be inferred that he fully represented the company. If so, his statement negatived any acceptance of the bond.
From the testimony in the case on the main transaction, it was fairly to be inferred that the return of the machines and the continuance of the agency formed the only consideration for the signature of Taylor, and that the bond was not to be delivered except on the conditions referred to. Pierson therefore had no right •when it was sent to him for approval to deliver it to the company except on those terms, and if he did so it was no legal delivery.
Whether, therefore, the defense is called a defense of fraud or not, is of no special importance, as such a defense as was here made goes directly to the delivery and acceptance of the bond, and therefore to its legal existence as an obligation. If the defense was true, there never was any lawful delivery and acceptance, and Pierson’s subsequent statements showed that this was his own original understanding.
There is no error in the record inasmuch as the rulings on the legal consequences of the facts shown were correct, and the evidence admissible.
Judgment must be affirmed with' costs.
Graves and Cooley, JJ. concurred; Maeston, J., did not sit in this case. | [
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] |
Graves, J.
This case is of the same nature exactly as that between the same parties reported in 34 .Mich., 78, and the railway company contends that there is nothing to exempt this case from the determination made there.
The city, however, claims that this case differs from that in two particulars, and that they are sufficient to require a different result.
First, it is claimed that it does not appear that the necessity for repaving was not caused or at least accelerated by the failure of the company in its duty there tofore to make timely and proper repairs; and second, that the company in proceeding to repave assumed — and without the assent of the city — to change the pavement from Sandusky limestone to cobble-stone. The finding is distinct that repaving had become necessary, but it states also that no evidence was given whether any previous repairs had or had not been made by the company.
If any previous neglect of duty by the company in making repairs brought on the condition which necessitated the repaving, it was a matter of defense to be shown by the city, and not a fact which the company was bound to give evidence upon in the first place, and prior to any showing on the subject by the city. As no such defense was attempted and there is no finding about it, the point is without merits.
As to the second point. The city required the company to repair, and the latter requested leave to repave with cobble stone. The city refused to provide cobblestone or any other material for repaving, and insisted that the company should repair. We have seen that in point of fact as found by the court it was actually necessary to repave, and since the city made no objection to cobble-stone as material for repaving and offered no suggestion as to what material ought to be used, and moreover would find none of any kind, there would seem to be no ground for the objection that in using cobblestone instead of limestone the company acted without right. The right and duty to repave existing, the refusal of the city to provide material and the failure to designate the kind which should be used, authorized the company to put down any such as would be reasonably fit, and it does not seem to be denied that cobble-stone was so.
The position taken on the part of plaintiff in error that the case is governed by the former one, is correct.
The judgment must be reversed and one entered here for plaintiffs in error for the amount found by the court, $405.81, with costs of both courts.
The other Justices concurred. | [
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] |
Per Curiam.
A writ of error only lies for proceedings at common law or proceedings substantially analogous. Such, a writ will not lie to review the action of the circuit court affirming that of the probate court refusing to relieve an executor from giving bond on the sale of real estate. | [
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] |
Campbell, C. J.
Gage sued for his compensation as teacher in school district No.. 4 of Marathon. Two defenses were set up; first, of garnishee proceedings in which the district appeared and submitted to garnishment of the money due to Gage; and second, that deduction should be made for holidays when there was no school kept open.
The garnishee statute relating to justices does not allow garnishee proceedings against municipal, corporations. Comp. L.¿ § 6468. A school district is very clearly such a corporation under our laws, as we decided in Seeley v. Board of Education, October term, 1876. There is also a further prohibition against such process against public officers for money due by them officially. § 6503. It is not consistent with public policy to subject -the stipends of persons in public employments to be suspended or reached in that way, or to allow public corporations to be brought needlessly into private litigation.
There is no force to the waiver of objection to the jurisdiction. The exemption really belongs to the person whose debt is garnished,' and not to the debtor. Johnson v. Dexter, 38 Mich., 695. The garnishee cannot without the debtor’s consent subject his rights to any unlawful burden.
In regard to deductions for holidays we are of opinion that school management should always conform to those decent usages which recognize the propriety of omitting to hold public exercise's on recognized holidays; and that it is not lawful to impose forfeitures or deductions for such proper suspension of labor. Schools should conform to what may fairly be expected of all institutions in civilized communities. All contracts for teaching during periods mentioned must be construed of necessity as subject to such days of vacation, and public policy as well as usage requires that there should be no penalty laid upon such observances.
The judgment must be affirmed with costs.
The other Justices concurred.
Edwin R. Seedey v. The Board of Education of the City of Port Huron. — Error' Lo St. Clair. Submitted and decided October 25, 1876. .
Chadwick & Voorheis for plaintiff in error.
W. T. Mitchell for defendant in error.
Assumpsit by Seeley on appeal from the judgment of a justice of the peace in his favor. Defendant had appeared specially before the justice and objected to the jurisdiction on the ground that it was a municipal corporation. The circuit court reversed the judgment on the ground, as appears from the bill of exceptions and assignment of errors, that the defendant was a municipal corporation, and was not brought within the jurisdiction because service of summons was not made upon the proper officer, and was therefore fatally defective. Plaintiff brought error, and on the hearing in the Supreme Court it was claimed that the justice had no jurisdiction because the suit was against a municipal corporation, and the district was peculiarly incorporated and not within the statute which in some eases allows school districts to be sued before justices.
The Supreme Court affirmed the judgment of the Circuit, and held that the defendant was a municipal corporation as a school district, and that it was not within Comp. L., § 3681, which gives to justices jurisdiction in all cases of assumpsit, debt, covenant and trespass on the case against school districts where the amount claimed or the matter in controversy does not exceed $100. | [
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] |
Per Curiam.
The small lake or pond on which the alleged trespass was committed was almost entirely enclosed within the lines of plaintiff’s farm. Whatever question might arise respecting the right to exclusive fisheries in larger bodies of water, the right of the land-owner to the exclusive control of small bodies thus situated would seem clear.
It has always been customary, however, to permit the public to take fish in all the small lakes and ponds of the State, and in the absence of any notification to the contrary, we think any one may understand that he is licensed to do so. No such notification appears in this case, and we therefore hold that the defendant was not a trespasser in passing upon plaintiff’s land with the intent to take fish, having no knowledge that objection existed to his doing so.
Judgment reversed with costs of this court. | [
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Marston, J.
Complainant filed his bill to foreclose a mortgage. Subpoena was personally served upon both defendants. They did not appear, and a decree was rendered in favor of complainant, and the mortgaged premises advertised to be sold on the 16th day of November, 1877.
November 14th, defendants presented their petition in the court and cause, in which they attempted to excuse their not appearing and defending, and asking that the decree be vacated and they have leave to file their joint and several answer nunc pro tunc, and for farther relief. The court dismissed the petition, and from the order dismissing it defendants appealed.
We held in Johnson v. Shepard, 35 Mich., 115, that an order denying and dismissing such petition for leave to file a bill of review was final, and that an appeal could be taken.
Several reasons are set forth in the petition for vacating the decree; "we shall however, notice but one at the present time.
The petition sets forth that the mortgage foreclosed was given to secure an indebtedness to one John Jeffrey. That defendant John Hursh being indebted to said Jeffrey in the sum of $1800, on the 23d day of November, 1872, executed and delivered to said Jeffrey his bond in the sum of $3514.46, payable on or before one year from the date thereof, with interest at the rate of ten per cent.
That this bond was conditioned for the payment of $3514.46, because Jeffrey represented to said Hursh that a bond should specify double the actual consideration, which statement was believed to be true.
Admitting this statement to be true, the claiming and taking a decree for the full face of the bond with interest thereon was a fraud upon the rights of defendants which would entitle them to the relief prayed.
We are of opinion that the order denying and dismissing the petition should be reversed and set aside with costs, and that the court should be directed to enter an order as prayed for in the petition.
The other Justices concurred. | [
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Cooley, J.
We have not been able to discover in the proceedings before the justice any error of law which should reverse his judgment. The bond on which Briggs was sued did not require the notice to him of Howe’s default to be given in writing, and the evidence of verbal notice of the several defaults was ample. It is true that plaintiff’s husband, when giving notice, did not expressly say to Briggs he was giving it for and in the name of the plaintiff, but what took place between them shows that the fact was assumed, and no question whatever made concerning it. Neither was any question of his authority made before the justice; and under the circumstances it operated as an unfair surprise when the point was made by the affidavit for a certiorari, that Mr. Lee did not apprise Briggs that he came by plaintiff’s authority, to give the requisite notice. Briggs himself was a witness before the justice, and all the proceedings on the trial warranted the justice in supposing that the authority of Mr. Lee to make the demand was not disputed. His conclusion was right on the facts as they were presented to him; and that is sufficient to require the affirmance of his judgment. It will be so ordered; and plaintiff in error will recover costs of the circuit and of this court.
Campbell, C. J. and Graves, J. concurred; Marston, J. did not sit in this case. | [
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Marston, J.
Marsh presented a claim against Tunis’ estate for balance of salary from January 1st, 1876, to April 1st, three months at fifteen hundred dollars per annum, which was disallowed, and upon appeal and trial in the circuit court the jury were instructed that their verdict must be for the estate and against the claimant.
The claim presented was not one to recover the reasonable value of his services, but to recover a certain ■amount, a portion of a fixed yearly salary. Under such a claim evidence tending to show the value of the services performed was not admissible. While there was evidence introduced tending to show promises to increase the claimant’s salary after January 1st, yet the evidence did not show an agreement so to increase it, while tbe evidence did show that the claimant had been working under a salary of one thousand dollars per year, and that for the services performed during the three months mentioned he had been allowed and paid the sum of $250. This under the evidence was all he was entitled to, and not having introduced any evidence fairly tending to prove an agreement to pay him fifteen hundred dollars per year, he was not entitled to recover the balance of $125 claimed.
There was no error in the record, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
The circuit court in chancery in a divorce case made an order dated January 19, 1878, that defendant pay as temporary alimony the sum of seventy-five dollars within three days. Service was made of this order January 23. Two days thereafter, the payment not having been made, proceedings were instituted against the defendant as for a contempt, and the court adjudged him in contempt and ordered attachment to issue.
This last order was unwarranted. An order for the payment of money ought to require it to be paid within a time fixed after the order shall be served. If it is not so drawn, but requires payment to be made within a certain number of days, it should be construed to mean so many days after service of the order. In this case, therefore, there could have been no default previous to January 27th.
The other Justices concurred. | [
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] |
Marston, J.
This case turns upon one question, viz.: whether Yeomans was a bona fide holder of the note in question, and this depended upon the form of the transfer of the note to him. If he was a bona fide holder the matters offered in defense would not have been admissible; otherwise, they would have been.
The note was in the usual negotiable 'form and made payable to the order of Aniba. Before due he sold it to Yeomans, making upon the back of the note the following endorsement: “ I hereby transfer my right, title and interest of the within note to S. A. Yeomans. June 14th, 1877. W..T- Aniba.”
The endorsement upon a negotiable promissory note is something more than the mere transfer of the interest ■of the payee therein." It includes also the personal undertaking of the- endorser that if the note is not paid at maturity, upon notice of that fact he will pay the same. Indeed it goes farther and may pass a perfect title to the endorsee and enable him to recover from the makers, in cases where the payee could not have recovered. The right or interest passing therefore under the usual and customary endorsement is much greater than the mere right, title and interest of the payee, and where the transfer as made only attempts to pass the title and interest of the payee of the note, no greater right or interest than he then held can pass. The transfer in this -case gave Yeomans the same rights that Aniba then had, but none other or greater. Yeomans could look to the makers thereof as Aniba could have done, but beyond this he could not go. To permit him to fall back upon Aniba, or to collect from the makers, in case Aniba could not have collected, would be giving him more than Aniba’s right and interest in the note. Such a transfer ,as was made in this case, it not being in accordance with the usual and customary method of transferring commercial paper, would throw doubt and suspicion upon the entire transaction and destroy the negotiable character of the paper. No one dealing in commercial paper would be willing to accept it afterwards with such an endorsement standing thereon.
The judgment must be reversed and a new trial «ordered.
The other Justices concurred. | [
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Graves, J.
The plaintiff brought ejectment and claimed title as grantee in a deed from the sheriff pursuant to sale on execution issued in favor of plaintiff and one Richard 0. Wheeler and against John A. Crispell and Edward L. Drake. In reciting the proceedings previous to the sale the deed stated “and whereas, because sufficient goods and chattels of the said last named ‘person’ in the said writ could not be found,” etc., the real estate was seized, etc.
Strict accuracy required, if the facts were so, that the recital should use the word “persons” and not “person” merely, so as to include both of the execution defendants. The circuit judge was of opinion that the appearance of the singular instead of the plural number in this passage in the instrument was fatal, and accordingly ruled that the deed was invalid.
It was incumbent on the sheriff to proceed against any goods and chattels to be found within the county and belonging to either defendant and subject to execution, before resorting to the real estate. The statute enjoins this as a duty (Comp. L., § 6107), and the common law will presume performance. 1 Cowen and Hill’s notes, 293 et seq. The statute moreover regards the deed of the sheriff as prima facie evidence of the regularity of all the proceedings required by law to precede it. § 4255. A recital, then, that the sheriff who made the levy personally discharged his duty in respect to first seeking to make the money of goods and chattels is not an essential ingredient in the deed and is not required; and if the grant is otherwise correct it cannot be set aside for an 'inaccuracy like the present in a recital on that subject. Jackson v. Pratt, 10 Johns., 381; Jackson v. Streeter, 5 Cow., 529; Peck v. Mallams, 10 N. Y., 509, 535.
The supposition that recital of performance of the duty is virtually called for is not well based. The regulations of law apply to all occasions, and among them to many where the officer could have no knowledge. The deed is not necessarily to be made by the sheriff who effects the levy' and is cognizant of the degree of fidelity attending the execution of the •writ. It is authorized to be made in ease of a change of officers, by the successor of the officer who levies (§ 4660), and the law does not assume that a different officer must know as a fact and hence be able to assert as one in a deed that his predecessor exercised due personal means to make the money of goods and chattels before making seizure of the land, and as it does not impute any such knowledge it does not require him to recite the fact in the deed as one known to him, and he is certainly .not required to insert as true what he knows only as something the law presumes. A statement thus made would rest on the presumption and would add nothing to the cogency of the proceeding. As -there is no provision that the deed of the sheriff who levies shall be different in this feature from one made by a succeeding officer, it follows that this kind of recital is not essential in any deed.
If then the law does not require it, and if it may be dispensed with, without derogating from the conveyance, the inference seems just that the common law presumption that the sheriff pursued the direction of the statute in seeking to make the money of goods and chattels ’before levying on the land, and the broad presumption the statute draws from the deed, must be sufficient to overcome all objection made to the deed in consequence of the statement in question in the recital. That statement should be considered as. a clerical misprision, and the deed should be read as though the word “persons” had been written instead of “person.”
The result is that the court erred and that the judgment should be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Campbell, C. J.
Plaintiff in error was informed against on a charge of larceny, in the daytime, from a shop, of a gold watch of the value of twenty-five dollars. The information was sworn to on the 25th of June, averring the offense on the 11th. On the same 25th day of June the prisoner was arraigned, pleaded guilty and was sentenced to the Ionia house of correction for three years. There is nothing in the record to show his age to have been between sixteen and twenty-five years, although the offense is made by law punishable in the State prison, and the statute organizing the house of correction allows only persons between those ages to be sent there. Public Acts, 1877, p. 173. The information is without the proper conclusion, but that defect is cured by § 7923 of the Compiled Laws.
The error relied on to reverse the judgment is that the court did not make the proper investigation before proceeding to sentence the prisoner, to ascertain whether he ought not to have been put on trial.
It has always been customary, and is according to many authorities essential before sentence to inquire of the prisoner whether he has anything to say why sentence should not be pronounced against him; and this it is generally said should appear of record. It does appear in the record before us. The reason given seems to have been that reasons might be shown which would prevent sentence.
The Legislature of 1875, having in some way had their attention called to serious abuses caused by procuring prisoners to plead guilty when a fair trial might show they were not guilty, or might show other facts .important to be known, passed a very plain and significant statute designed for the protection of prisoners and of the public. It was thereby enacted as follows:
“That whenever any person shall plead guilty to an information filed against him in any circuit court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied, after such investigation as he may deem necessary for that purpose, respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered, and order a trial of the issue thus formed.” Pub. Acts, 1875, p. 140.
It is impossible to regard this statute as merely directory. It does not occur in the midst of other provisions among which it might have been inserted without much attention. It. is a single provision in a statute referring to nothing else, and such a statute cannot be regarded as passed without some strong occasion.
It is contrary to public policy to have any one imprisoned who is not clearly guilty of the precise crime charged against him, and it is equally contrary- to policy and justice to punish any one without some regard to the circumstances of the case. By confining this statute to informations and not extending it to indictments, it is easy to see that the Legislature thought there was danger that prosecuting attorneys, either to save themselves trouble, to save money to the county, or to serve some other improper purpose, would procure prisoners to plead guilty by assurances they have no power to make of influence in lowering the sentence, or by bringing some other unjust influence to bear on them. It is to be presumed they had evidence before them of serious abuses under the information system which in their judgment required checking by stringent measures.
Every one familiar, with the course of criminal justice knows that those officers exercise very extensive and' dangerous powers, that in the hands of an arbitrary or corrupt man are capable of great abuse. And unless the general impression is wrong, great abuses have been practiced by this very device of inveigling prisoners into confessions of guilt which could not be lawfully made out against them, and deceiving them concerning the precise character of the charges which they are led to confess. And it has also happened, as is generally believed, that by receiving a plea of guilty from a person whose offense is not aggravated, worse criminals who have used him for their purposes remain unpunished, because the facts which would convict them have not been brought out.
This statute not only requires the judge to examine carefully into the facts of the case, which can require no less than a search into the depositions if they have been returned or similar evidence if they have not been taken, but also compels him to examine the prisoner himself concerning the circumstances which induced him to plead guilty. It is evident that for this purpose it would be highly improper to take any thing on the statement of the prosecuting attorney, or to allow him to be present at the examination of the prisoner, who in this respect stands in a position analogous to that of a married woman under the laws providing for her separate examination. It could not have been contemplated that this should be done during the routine business of court and in presence of all the officers of justice and the prosecutor.
Without deciding that the absence from the record of a recital of such investigation must in all cases avoid the validity of a sentence on such plea, we have no hesitation in saying that the record ought to show the fact, and unless it does so, must show at least a reasonable delay between plea and sentence which may justify some presumption that this duty has been performed.
The present record is, if not absolutely conclusive that no such steps were taken, at least strongly indicative of that fact.
The statutes entitle prisoners to a copy of the information, and require an endorsement of the names of witnesses. This is intended to enable them to prepare for defense, and to make such inquiries as may be necessary about those witnesses. In the present case the information was not put in until the time of the arraignment, and the sentence immediately followed the plea. While it is barely possible that all this is compatible with such deliberation and investigation as the statute requires, the hasty and careless form of the information, (which as printed has no endorsements, — although upon this we need not investigate), the absence of any finding of the age of the prisoner, and the omission of any finding'or circumstance explanatory all lead almost irresistibly to the conclusion that the statute was not complied with.
The case of The matter of Mason, 8 Mich., 70, which was cited to show presumptions must be made that the proper investigation had been had, is not in point. There the court had expressly found the age of the respondent, and it was held the fact of such a finding raised a presumption it was made on sufficient evidence. If there had been any thing in this record showing directly or impliedly that the attention of the judge had been called to the propriety of acting on the plea, it might have been presumed he must have informed himself on that subject. Here it does not so appear.
Being of opinion that the record before us furnishes presumptive evidence at least that the statute was disregarded, we feel compelled to reverse the judgment. It is to be hoped that some express provision of law will require the record to note what is done in these cases. The statute is a wholesome one, but in the evident want of care in carrying it out we do not feel warranted in holding that a failure to note the fact on the record is conclusive. It is too important a matter to be left without some more positive direction concerning its appearance on the court journals.
Judgment must be reversed, and the prisoner discharged.
The other Justices concurred. | [
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] |
Marston, J.
Bill filed to foreclose a mortgage. In May, 1866, Orion R.. Hight and wife executed a certain mortgage upon premises in Dowagiae, known as the Hight house, to secure the payment of certain notes.
In November, 1870, Sarah D. Robinson exchanged certain hotel property owned by her in the village of South Haven, Van Burén county, with Hight for the Hight house in Dowagiae, and at the time of this exchange Townsend had two mortgages, to secure the payment of some $4000, upon this property in Dowagiae.
At the time of this exchange Mrs. Robinson knew of but one mortgage being upon the Hight house. About this time a question arose between Hight and Mrs. Robinson about the second mortgage on the Hight house, which resulted in an agreement, made and entered into by and between Mrs. Robinson, Hight, and Townsend the mortgagee, that Hight should give a mortgage upon the South Haven ■ property which he had received in exchange, to Townsend; that Townsend’s second mortgage upon the Hight house should be permitted to remain, but that he should first look to the South Haven property, and his mortgage thereon, for satisfaction of his claim.
In August, 1871, Mrs. Robinson exchanged the Hight house property in Dowagiac with defendant Jarvis, for the premises described in the mortgage sought to be foreclosed in this case. Jarvis refused to make this exchange unless Townsend’s second mortgage upon the Hight house was discharged, but this Townsend refused to do. Townsend was willing to take a first mortgage upon the property which Ja.rvis was conveying to Mrs. Robinson in exchange, but in the trade between Jarvis and Mrs. Robinson, the latter was to give Jarvis a mortgage upon the property he was to convey to her, and Jarvis insisted that he should have the first mortgage and Townsend the second thereon. During these negotiations the fact that Townsend had a mortgage upon the South Haven property, and to which he was in the first instance to resort, was fully talked over and understood, as was also the fact that the South Haven property was valuable and amply sufficient to satisfy Townsend’s claim thereon in full, together with two prior mortgages thereon for small amounts, if not destroyed by fire. These negotiations finally resulted in a trade being effected between Jarvis and Mrs. Robinson, Jarvis taking a second and Townsend a first mortgage upon the premises which Jarvis conveyed to Mrs. Robinson, and Townsend discharging his second mortgage upon the Hight house property, Jarvis consenting to take the second, and Townsend the first mortgage, in consideration of Townsend’s agreeing to look to the South Haven mortgage for his claim in the first instance. In pursuance of this agreement the exchange was made, and the mortgages to Jarvis and Townsend were given, and in Townsend’s mortgage this clause was inserted:
“Provided always, and these presents are upon this express condition, that if the said party of the first part [Mrs. Robinson] shall and do well and truly pay or cause to be paid to the said party of the second part [Townsend] the sum of money secured by a certain indenture of mortgage bearing date the thirtieth day of November, 1870, made and executed by Elizabeth M. Hight and Orion R. Hight, party of the first part, to George J. Townsend, party of the second part, and recorded in the register’s office for the county of Van Burén, in liber three of mortgages, on page 120, for the sum of twenty-three hundred dollars. This mortgage is given as collateral to the above described mortgage, and the said George J. Townsend hereby contracts and agrees to exhaust his remedy on the first mortgage, before this mortqage shall be foreclosed, and when the said mortgage is paid this mortgage shall be discharged,” etc.
The real question in dispute. in this case is whether Townsend did- exhaust his remedy on the Van Burén county mortgage before his assignee, the complainant in this case, commenced proceedings to foreclose.
Townsend in 1872 began statutory proceedings to foreclose the Van Burén county mortgage. The premises were advertised to be sold on July 11th, 1872, and on that day Mr. Townsend and Mrs. Robinson appeared. There were no bidders. Townsend refused to bid, and the sale was postponed until the 14th day of August. There is some dispute as to whether this and a subsequent postponement were made at Robinson’s request or not, but this in our view of the case becomes immaterial. On August 14th Townsend and Robinson were again present. Townsend refused to bid and there being no bidders, the sale was farther postponed until Sept. 19th, 1872. Previous to this latter date, viz.: Sept. 18th, 1872, certain parties claiming some interest in this Van Burén county mortgaged property, commenced proceedings in chancery to enjoin the foreclosure and sale of the mortgaged premises, and they obtained a preliminary injunction. Upon what grounds they claimed to be entitled to relief does not appear. It does not appear that any steps were taken by Townsend to have the injunction dissolved. An attorney however was employed to defend, and we presume an answer must have been put in, as proofs were taken on the part of the defendant but none on behalf of complainants. Proofs were closed in April, 1873, and the case noticed for hearing in June, 1875, and on the 21st of the same month a decree was rendered dismissing the bill of complaint, which was enrolled in November following.
In the mean time and while these, chancery proceedings were thus slowly progressing, steps were being taken to foreclose the two prior mortgages upon this same "Van Burén county property. The premises were sold thereunder and the time to redeem therefrom expired January 28th, 1874. So that when the injunction was dissolved, which stopped Townsend’s foreclosure, by the dismissal of the bill in June, 1875, his remedy against the premises was gone, and nothing farther was done by him in the way of attempting to collect his claim on the Van Burén county mortgage.
It is claimed on the part of defendants, but disputed, that Townsend claimed the expense of his foreclosure proceedings should be borne by either Bobinson or Jarvis. There is no question, however, but that all or nearly all of the expenses attending the proceedings in defending the injunction suit were paid by Bobinson, and that' Townsend repeatedly refused to do Anything in that case at his own expense, claiming that he was only bound to commence proceedings to foreclose his mortgage, which he had done, and that he would proceed no farther therein, but would look t'o his mortgage upon the Dowagiac property, being the one sought .to be foreclosed in this case.
A preliminary question was raised, viz.: that Townsend’s agreement to look to and exhaust his. remedy upon the Van Burén county mortgage, was made with Mrs. Bobinson, who was not properly brought in as a defendant in this ease, and that Jarvis could derive no benefit therefrom. Without deciding whether there is any force in the objection, it is sufficient to say, that Jarvis foreclosed his mortgage upon the premises in question, became the purchaser thereof, and thus succeeded to Mrs. Bobinson’s rights, and has a right therefore to make the same defense she would.
Did then Townsend exhaust his remedy upon the Van Burén county mortgage? Clearly I think not. We do not say that he should have bid in the property himself, subject to the previous mortgages thereon, although we are of opinion the evidence shows it was of sufficient value to have satisfied all in full, nor that he should have commenced a personal action against the mortgagors — although such might have been his duty, if there was a personal liability. See Barman v. Carhartt, 10 Mich., 338. We do say however that it was clearly his duty to proceed with all reasonable diligence, and have the injunction dissolved, or at least bring the matter to a hearing, either upon a motion for a dissolution, or upon proofs. This he did not do. We do not feel disposed to lay down a very rigid rule in reference to the rapidity with which chancery proceedings should progress, but when proofs are closed in' a case, upwards of two years seems rather longer than necessary to bring the matter to a hearing. Especially is this so in a case where important rights may be lost by the delay. This long delay is not only not explained, but it is clearly apparent from the whole record that Mr. Townsend made no proper effort, and had no desire to have it shortened. Indeed his preferences seem to have been the other way. Had it not been that he supposed he had the Dowagiae property to fall back upon, it seems very clear that he would have made a more prompt and vigorous effort to have collected his claim out of the Van Burén county property. Had this been his only security, he would not have been so easily satisfied with the manner in which he was exhausting his remedy. Mortgagees do not usually exhaust their remedy in that way.
As between Townsend, Bobinson and Jarvis, the Van Burén county property was the primary fund to be resorted to for tbe satisfaction of the debt, and when exhausted, if the claim was not satisfied in full, then he could resort to the Dowagiae property for the deficiency. It is quite probable, a point however upon which no opinion is expressed, that anyu extra expense he may have been put to in endeavoring in good faith to enforce his claim against the Yan Burén county property, could have been charged against and collected out of the Dowagiae property. The relation existing between Mr. Townsend and Mrs. Eobinson was not that of principal and surety as ordinarily understood. His duty in the premises did not spring from such a relationship, by operation of law, but from his express agreement — upon the strength of which, and in reliance upon its due and proper execution in good faith, Mr. Jarvis and Mrs. Eobinson made an exchange of property. There would seem to be little if any doubt but that had Mr. Townsend vigprously exhausted his remedy, instead of exhausting it by laches, -he would have collected his entire claim without resorting to the mortgage now sought to be enforced.
It necessarily follows that the decree of the court below must be affirmed with costs.
The other Justices concurred. | [
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Campbell, C. J.
Sutherland sued Mrs. Johnson, a married woman, on the following note:
“ One year from date, for value received I promise to pay C. Sutherland _ or bearer the sum of three hundred and fifty dollars with interest at the rate of ten per cent per annum, the same being for money loaned. Flint, March 14, 1868.
(Signed) Amanda Johnson.
The defense set up was that there was no such consideration as would support the promise of a married woman to pay .money, inasmuch as the note was not given for anything which became or was to become the separate property of Mrs. Johnson.
It has been repeatedly held by this court that a married woman’s promise to pay must be based on a consideration in the shape of property, and that she has no power to make contracts except concerning her separate estate, which must be either by making agreements concerning property already possessed, and referring to it, or else concerning property acquired by the contract or in consideration of it, West v. Laraway, 28 Mich., 464; Ross v. Walker, 31 Mich., 120; Jenne v. Marble, 37 Mich., 319.
Plaintiff below claimed that the consideration of the note consisted partly in the sale to Mrs. Johnson of a note made by her husband for $200 and interest, and partly of money and services in behalf of her husband to aid in his defense under- a criminal charge. Mrs. Johnson’s testimony showed, as was held below, a case of duress and extortion. The jury found on plaintiff’s theory, and gave a verdict against her.
It is clear that the only part of the alleged consideration whereby she was to obtain any pecuniary benefit was the transfer of her husband’s note, and that on any theory there was an absence of consideration for all beyond its amount. As the evidence of Sutherland showed that this note payable to bearer was still in his control and possession, it is not quite clear to us how Mrs. Johnson got any benefit from it. But the more serious difficulty apparent on this record renders that unimportant.
Inasmuch as a married woman cannot contract generally, her contracts whether negotiable or non-negotiable in form, can never be any better in the hands of a bona fide holder than in those of the first holder. A consideration connected with her separate property is necessary in all cases where she is the maker of such paper, and without deciding on whom the burden of proof lies where it appears prima facie to be for value received, it cannot be enforced unless made for the kind of consideration referred to.
In the present case the parties saw fit to express what the consideration was, and thus bring it within her capacity to contract by showing it to have been for money loaned. The consideration named is here a part of the contract itself, and we think that the contract cannot be so varied by parol as to show another consideration. This being so, the evidence on the trial showed no right of recovery, because it showed there was no loan whatever.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Campbell, C. J.
The bill in this case waá filed June 19, 1875, for the purpose of enforcing a contract concerning land under these circumstances:
August 27th, 1874, Wells held a mortgage on the land in controversy, which was then owned by McHugh. McHugh and his wife did not then live harmoniously together, and she, although certain other land had been conveyed to her as a consideration for signing a conveyance to a purchaser, refused to join in it. McHugh bargained the premises to Brennan for $2175, payable $150 down, and so much of the balance as exceeded the Wells mortgage was to be secured by mortgage in annual instalments of $200. In order to avoid the claims of Mrs. McHugh, the land was to be sold on a foreclosure of the Wells mortgage, and title made thereunder. To this Wells consented, and a few days thereafter McHugh gave Wells a general power of attorney, and left with .declarations that he should not come back. He did however return to the land in question as will appear hereafter. At the time of the bargain McHugh and wife lived in Port Huron. The premises in controversy are about twenty miles distant.
Wells soon commenced advertising for the interest in arrears, and a sale was made late in the fall to defendant Brown. Wells assigned the mortgage to Brown, who subsequently in 1875 foreclosed for the whole. The complainant has not seen fit to introduce most of these documents into the printed record, and his bill is vague as to dates, as well as some other things. The bill was filed in May or early in June, 1875, shortly after the second foreclosure, and several months before the redemption expired under the first.
McHugh claims that he put Brennan in possession, as he was bound to do. But before Brennan had got into control of the premises Mrs. McHugh assumed possession and by threats and acts of violence kept him out. Mc-Plugh declined to interfere, but advised Brennan to resort to legal compulsion. It being discovered that no possession could be secured, Wells paid back to Brennan the $150 which he had paid down, and cancelled the agreement.
McHugh came back to the farm in the spring of 1875 and has lived there with his wife ever since. According to his own story he knew of Brown’s proceedings immediately thereafter, and then knew the contract was can-celled.
McHugh by this bill insists on the enforcement of the Brennan contract, and makes no offer to redeem from Brown.
In our opinion it was McHugh’s business to control his own family and to put -Brennan in possession before he could insist on his contract. After he came back to the farm in the spring of 1875 he knew of what had taken place, but made no offer or attempt to put Brennan in possession, and makes no such offer by his bill. By going back into possession and remaining there with his wife he impliedly recognized the termination of the contract.
He had thereafter merely his former right to' redeem the premises from the foreclosure sales, the regularity of which is not impeached. No bill was needed for that purpose, and this bill is not so framed. Neither Wells nor Brown had any further concern with McHugh than for Brown to accept redemption if he chose to make it. When the bill was .filed he had a long period in the future in which he could have redeemed, and no one pretended he was then either cut off, or compellable to pay at once.
We do not see that when his bill was filed he had any cause of grievance, or any occasion for filing it. In the absence of any tender or other equivalent the pendency of this suit can have had no effect on the proceedings.
The case for specific performance is not made out, and in the absence of any other equity properly averred and proved, we think the bill was rightly dismissed.
The decree must be affirmed with costs.
The other Justices concurred. | [
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Per Curiam.
The statute (Comp. L., § 7110) allowing a fine for not observing a writ of mandamus only applies when a writ has actually issued and been disobeyed. Failure to make return to an order to show cause does not come within the statute. Where a peremptory writ issues it is res judicata. But an order to show cause determines nothing and furnishes no means to measure damages for disobedience, and such disobedience must be punished by the usual remedies and not under the statute.
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Cooley, J.
In the year 1857 the defendant, being-then the owner of lot two on block three of a plat made by said company in addition to the city of Marquette, conveyed the same to William J. Gordon and Peter White, “reserving therefrom all that part of said lot above described which is now used and occupied by said Cleveland Iron -Mining Company for railroad or railway purposes, to be used and occupied by the said Cleveland Iron Mining Company, its successors and assigns, so long as needed or desired by them for the right of way for said railroad or railway purposes.” Gordon subsequently conveyed his interest in the premises to White, and White conveyed to the plaintiff. At the time defendant conveyed to Gordon and White, and ever since, defendant has occupied some portion of said lot with its railway track, but the evidence in this record tends to show that the occupation has not been confined within exactly the same limits as when the deed was given.
The plaintiff now brings ejectment for that portion of the lot which the defendant occupies. He claims, first, that what is called a reservation in the deed, but which is in fact an exception, is void on the face of the deed for ambiguity; and second, if not void, the party claiming the benefit of it must take the burden of proving what was intended by it, and that he is entitled to hold nothing which he does not clearly show was thereby excluded from the conveyance.
I. There is no ground for saying that there is any ambiguity on the face of the deed. The exception from the conveyance was of that portion of a certain lot which was then occupied for certain purposes. It is true the deed did not describe the parcel itself by metes and bounds, or refer to records, or to trees or stakes; but it gave a means of identification which presumptively was not only ample, but was as definite and certain as any that could well be suggested. A grant must always be applied to its subject by regarding it from the standpoint of the parties, and in the light of the knowledge they had at the time; Ives v. Kimball, 1 Mich., 308; Cooper v. Bigly, 13 Mich., 463; Anderson v. Baughman, 7 Mich., 69; Willey v. Snyder, 34 Mich., 60, and here the parties designated that which was intended by particulars that were unmistakable: a present holding by a party named, for a purpose specified. If it had turned out that in fact there was at the time no such occupation, a difficulty might then have been presented of which the deed gave no indication; but on the face of the deed itself the exception was perfectly good and presumptively effectual.
II. It • being shown that the defendant did actually oecupy a part of the lot for railway purposes at the date of the deed, if the plaintiff claims that more is now occupied, and seeks to recover it, he must take upon himself the burden of showing it. In other words, he must make out his case. There is no presumption that defendant is guilty of a violation of law, or is an intruder upon anybody’s rights. Whoever asserts that he is trespassed upon must show it. We cannot enter upon a discussion of a principle so elementary.
There was nothing in the rulings of the court below for the plaintiff to complain of, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
Marvin was indebted to Newman in the amount of a promissory note, and by appointment Newman called at Marvin’s place of business to receive payment. What took place between the parties in the interview is known only to themselves, and their evidence on the subject is directly in conflict, except that both agree that the note was there destroyed. Marvin says he paid the note and then destroyed it; Newman says Marvin snatched the note' from him and destroyed it without payment. The present suit is to recover the amount of the note.
The controversy in the court below seems to have been over the question upon whom was the burden of proof; Marvin claiming that the burden was upon Newman to show that the note was not paid when destroyed, and Newman claiming that Marvin must assume the burden of showing that the note, which it was agreed was unpaid when the parties met, was then paid. The circuit judge took the latter view, but at the same time said to the jury: “.In this case, as in every other, the jury must examine all the testimony. The two parties flatly contradict each other. The jury are to search carefully for any fact or circumstance in the surroundings of the case which will indicate to them where the truth of the whole matter is, and render a verdict accordingly.”
The court could not have treated the matter more fairly. The talk about burden of proof had little relevancy: the simple question was, whose testimony the jury would accept, and the jury must necessarily have returned a verdict for the party whose account of the transaction appeared to them most worthy of belief. But if any burden could be said to rest specially upon either party, we think the circuit judge was correct in saying that it was upon the debtor who, admitting that the demand was in force when his creditor entered his place of business, claimed a few minutes afterwards that he had discharged it.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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64
] |
Marston, J.
The important question in this case relates to an alleged material alteration of a promissory note given January 10th, 1869, payable on or before the 15th day of October, 1870, with interest at the rate of' ten per cent by adding thereto the word “annually.”
Even if this word was added as claimed, it was not,, we think, a material alteration. If with this word added, we give it a literal construction as claimed, and say that at the expiration of the first year interest thereon would be due and payable, interest for the remaining portion of the time for which the note was to run before becoming due, would -not be payable until the expiration of the second year, so that the second instalment of interest would not become due at the time the principal did, but some months thereafter. So the note being payable on or before Oct. 15th, had it been paid within the first year, the accrued interest could not have been collected until one year from the time the note was given. Such, we think, is not the proper construction to be given it, and could not have been so intended by the party who added this word to the note. The proper construction to give the note as thus changed is as though it had been made to read ten per cent, per annum, and when so construed the alteration added nothing to the extent of the makers’ liability, nor did it change their liability in any way.
Had the note been made payable two or more years after date perhaps a different rule would apply, but upon such a question we express no opinion.
The judgment below must be reversed and a judgment rendered in this court upon the finding of the circuit court, for the sum of $1175.07 with costs of both courts.
Graves, J., and Campbell, C. J., concurred. | [
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Kavanagh, J.
Here we are asked to determine whether defendant-appellant George L. Ginger was properly adjudged guilty of contempt by a court order entered August 18, 1958, in the Wayne county circuit court. Defendant, in his brief, attempts to raise many other unnecessary and improper issues which are not related to this appeal; consequently, they will not be considered by us.
. It is necessary to give a brief historical statement of the events both leading up to and following the court order of August 18, 1958.
On February 21, 1951, plaintiff brought an assumpsit action on a note jointly and severally against defendant Ginger and the corporation of which he was the founder, principal stockholder, and officer. As a result of this action plaintiff recovered a joint and several judgment against the defendants, in the sum of $2,875 plus costs, on April 18, 1952. Defendants’ motions to set aside the judgment and for a new trial were denied on May 16, 1952. Defendant Ginger appeared personally in the various hearings, and failed to appeal from the judgment or the denial of his motions. Subsequent garnishment actions have reduced the present balance on the judgment to approximately $800.
On October 9, 1952, a writ of execution was returned nulla bona, and on October 27,1953, a petition for the appointment of a receiver under applicable statutory provisions was filed. Then on November 16, 1953, an order signed by the lower court appointed one John M. Litch as receiver. A petition and order to show cause why defendant Ginger should not be cited for contempt for failure to turn over his books, records, accounts receivable, et cetera, was signed and filed on December 23, 1953; The petition, sworn to by the receiver, showed service of the order of November 16, 1953; upon defendant Ginger and 'his failure to comply with the order.
On January 27, 1954, the court entered an order directing performance by defendant Ginger in compliance with the order that he turn over his books, records, et cetera. The court further ordered the order to show cause be adjourned to a- later date. On February 10, 1954, the hearing on the order to show cause regarding defendant Ginger’s assets was concluded.
Approximately 2-1/2 years later, on October 12, 1956, the court again issued an order to show cause why defendant Ginger should not be held in contempt for failure to comply with the previous court order. Then, on November 13, 1956, the court ordered defendant Ginger to deliver to plaintiff’s attorney copies of income tax returns for various years and, upon failure to do so, defendant Ginger would be cited for contempt. On December 17,1956, the court ordered defendant Ginger to show cause on January 4, 1957, why he should not be cited for contempt for failure to comply with the order of November 13, 1956.
Next, an order to show cause why defendant Ginger should not be cited for contempt for failure to produce his books and records was signed and filed on July 11, 1958. On August 4, 1958, an order for attachment against defendant Ginger for failure to comply with the order of July 11, 1958, was filed and defendant Ginger was ordered and adjudged guilty of contempt.
Then, on August 18, 1958, followed the contempt order entered by the court, which is the sole subject of this appeal. The pertinent part of the order reads as follows:
“It is ordered:
“That said George L. Ginger is guilty of the contempt alleged against him in refusing to surrender and deliver up unto John M. Litch, receiver, any and every asset and, as well, his books and records of account, and any writing pertaining to his property or assets, as heretofore demanded of said defendant by said receiver.
“That this court further finds, as a result of this hearing, that there is a balance due as of January 1, 1953, on the judgment heretofore entered in said cause as of April 18,1952, in the total sum of $880.74.
“And it is further ordered that the said defendant may purge himself of the contempt found against him, by the payment of the aforesaid sum of $880.74 plus 5% interest per annum from January 1, 1953, provided the same is paid into this court, or to J. Willard Carpenter, the attorney for the within plaintiff, within 60 days from and after the date hereof.
“It is further ordered and directed that in the event said George L. Ginger shall fail to purge himself of said contempt, then he shall return to this court for commitment to the county jail for the county of Wayne, as in the discretion of this court shall be deemed necessary, until he shall purge himself of said contempt.
“And it is further ordered that upon failure of said defendant to purge himself as aforesaid, or to return to this court for commitment as aforesaid, that an attachment shall forthwith issue against the person of the said George L. Ginger, defendant.”
Defendant’s motion to strike the show cause order and/or quash the writ of attachment was denied on October 7, 1958. No appeal from this order was taken.
On January 22, 1959, an order for attachment against defendant for failure to comply with the order of August 18, 1958, was signed and filed. By this order defendant was to be committed in jail until he should comply with the court order by delivering up his assets and books and records of account, or by otherwise purging himself. This order of commitment was never put into execution because of the order filed January 23, 1959, by this Court staying proceedings in the lower court and granting defendant’s application for leave to appeal. Various other motions for extensions of time, et cetera, have further delayed our determination in this matter.
The sole question before the Court is the contempt issue. There can be no question that defendant George L. Ginger was guilty of contempt. The record shows that Mr. Ginger, a member of the bar, has deliberately and knowingly refused to comply with the order of the court requiring him to produce his records, assets, books, and accounts receivable to the receiver. It is regrettable that the careless drafting of the order finding him in contempt did not provide that defendant Ginger could purge himself of contempt by producing his assets, books, records, and accounts receivable or, in the alternative, by the payment of the balance due on the judgment. However, all of the proceedings indicated that the various orders to show cause and all hearings as to why he should not be punished for contempt of court set forth such alternatives. Substantial compliance with the statutory language is found in the orders. Mr. Ginger, as a lawyer, well knew that he could purge himself of contempt by producing the assets, books, records, and accounts receivable. Defendant must comply with the order of the lower court to produce assets, books, records, and accounts receivable, or the payment of the balance owing on the judgment.
The matter is returned to the lower court for further proceedings. In the event defendant George L. Ginger does not purge himself within 5 days from the filing of the remittitur with the court below, further proceedings may be instituted.
Since the wording of the order was responsible for the appeal to this Court, and such responsibility rests in large part upon the attorney for the plaintiff and appellee, neither party shall have costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred.
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Smith, J.
This case involves a discharge for alleged misconduct. The claimant, appellant herein, applied to the Mclnerney Spring & Wire Company (hereinafter termed the employer) on October 21, 1957, for employment. At the time he was questioned by both the personnel director and the maintenance engineer respecting his physical condition. This was done because the position of fireman in the boiler room, for which he had applied and for which he was hired, was a position of unusual responsibility, carrying pay at a premium rate. The fact of the matter was that claimant had suffered “an acute heart attack” some years past. This he did not disclose, and, in response to the specific question on the employment application, “Have you any physical defects?” he answered “No.” Moreover, because of his physical condition he was under the care of a physician and had been “given medicine for relaxation.” This medicine, he admitted, had the effect of making him sleepy. On October 22, 1957, claimant commenced work as a fireman. Shortly thereafter, on November 1st, he was discharged for sleeping on the job. Subsequently claimant filed an application for benefits under the Michigan employment security act. In a determination issued pursuant thereto he was advised as follows:
“You admit that you did doze on the job due to the nature of your job; such act of neglect on your part would endanger the safety of your employer’s property and employees. As such your separation is held to be for reasons which constitute misconduct in connection with your work. Therefore you are disqualified under the provisions of section 29(1) (a) (2) of the act from 10/31/57 through the duration of your unemployment.”
A redetermination was requested, resulting in a reversal of the original determination; it in turn was reversed by the referee. The matter then went before the appeal board of the Michigan employment security commission. This board, in affirming the referee, held in part as follows:
“The claimant, who was employed as a boiler tender, was discharged when he was found sleeping by a plant protection man. When the claimant was hired it was stressed that he must be alert and must not drink on the job. In our opinion the action of the claimant in sleeping on the job, especially in view of his duties, constituted misconduct connected with the work. We find the employer has fully met the burden of proof of establishing by a preponderance of the evidence that the claimant was discharged for misconduct connected with his work. It is accordingly our finding that the referee’s decision holding that the claimant’s separation was under disqualifying circumstances is in accord with and fully supported by the facts and law and cannot be disturbed.”
The circuit court for the county of Kent affirmed the decision of the appeal board, and the matter is before us upon leave granted.
We consider first the assertion that claimant’s failure to disclose “that he had a physical defect at the time of filing the employment application on October 21, 1957,” did not constitute misconduct under section 29(1) (a) (2) of the Michigan employ-men security act. There is no need to pass on the question. Although the employer asserted at the referee’s hearing both that claimant was discharged for “sleeping on the job during working hours” and that “it was a wilful neglect on the part of the claimant to misrepresent his physical abilities when he sought to obtain a job,” the alleged misrepresentation was not known at the time he was discharged. The discharge, as noted, was for sleeping on the job during working hours and the appeal board, supra, found that such sleeping on the job constituted “misconduct connected with his work.” It is with this conduct that we are here concerned.
The main thrust of appellant’s argument on appeal is that claimant’s sleeping was not intentional and thus not misconduct. Reliance is placed upon a quotation from the majority opinion of this Court in Cassar v. Employment Security Commission, 343 Mich 380, 398, recently overruled in Linski v. Employment Security Commission, 358 Mich 239. Appellant construes the Cassar Case to require, for misconduct, “wrongful intent or evil design * * * which import an exercise of the will.” The minority opinion in Cassar, supra, however, not relied upon by appellant, rejected the application of a moral criterion to this situation, holding that misconduct, as that term was used in the act, required “a breach of those standards of conduct reasonably applicable to the industrial task assigned, rather than of those standards of ethics and morals applicable to mankind in general.” Id. at p 389.
Tested by either criterion, however, claimant’s position is equally untenable. ."We may concede that •no man in his right mind would “intend” to fall asleep while on duty in a boiler room. But also we must hold that a man intends the normal consequences of his acts. He cannot deliberately stop eating, as in the device of the so-called hunger strike, and assert that he did not intend to go hungry, nor can he take sleeping pills or other sedatives and urge that he did not intend to go to sleep. Moreover, tested by the “standards of conduct reasonably applicable to the industrial task assigned” claimant’s position is no better. The job for which he was hired was one of great responsibility. The results of a boiler explosion, either to him, as he dozed nearby, or to his fellow workmen, or to the plant itself, we need not describe. Judged by any criterion his act was “misconduct connected with his work.”
Affirmed. The case involving the interpretation and application of statutory provisions of general interest, no costs are allowed.
Edwards, Kavanagh, and Souris, JJ., concurred with Smith, J.
C3j 1948 and CLS 1956, § 421.1 et seq. (Stat Ann 1950 Rev and Stat Ann 1957 Cum Supp § 17.501 et seq.).
CLS 1956, § 421.29(1) (a) (2) (Stat Ann 1957 Cum Supp § 17.531 [l][a][2]).
Section 29 of the act provides:
“(1) An individual shall be disqualified for benefits:
“(a) For the duration of his unemployment in all eases where the individual * * * (2) has been discharged for misconduct connected with his work or for intoxication while at work.” (CLS 1956, § 421.29 [Stat Ann 1959 Cum Supp § 17.531].) | [
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Kelly, J.
Plaintiff-appellant submits 1 question, namely:
“Did tbe trial court err in holding defendant free of negligence as a matter of law and in directing a verdict of no cause for action!”
Plaintiff, a 9-year-old girl, was injured by coming in contact with defendant’s car. The impact was on the side of the car in front of the right hand door.
Plaintiff was crossing Genesee avenue, in the .city of Saginaw, 175 feet north of the intersection of Genesee and Holland street. She was not crossing on a crosswalk and was proceeding from west to east.
Genesee avenue at this point is a 5-lane highway, each lane being 10 feet in width; 3 lanes being .designated for southbound traffic and 2 lanes for northbound traffic.
Defendant was driving south on Genesee in the1 southbound lane closest to the center of the street, the same being the third lane east of the curb from which plaintiff- started on her way across Genesee from west to east.
As plaintiff stood on the west curb of Genesee,.accompanied by her 2 brothers, 6 and 10 years of age, there was a line of southbound cars, halted and waiting for the red light to change at the intersection of Genesee and Holland.
A lady motorist, who had stopped her car waiting for the light to change, signaled to plaintiff to cross Genesee, and plaintiff’s testimony as to her crossing is as follows:
“After we got the candy, we left the drug-store and walked straight out toward the road.
“Q. Now when you got to the edge of the road, were there any cars there?
“A. Yes, they were lined up for the red light.
“Q. What did you do, or what happened then?
“A. We were all waiting along beside of each other and this lady motioned for us to go across and then my brother said he would beat us home and we knew he would beat us and he started running and we started walking out.
“Q. Did your brother go all the way across Gene-see?
“A. Yes.
“Q. Which brother was that ?
“A. Charles.
“Q. You say you started to walk across?
“A. Yes.
“Q. Were you in front of or behind the car where the lady motioned for you to go across?
“A. In front of.
“Q. Was that in front of the drug store?
“A. Yes.
“Q. Now then, when you started to walk across Genesee after the lady motioned to you, did you see .any cars coming along in the middle lane of the road?
“A. No, we didn’t.
“Q. What happened then?
"A. I don’t know.
“Q. Were you struck then by the car?
“A. I don’t remember.
“Q. Is that the place where you were hurt?
“A. Yes.”
Defendant testified he did not see the children; that he first knew something was wrong when he heard somebody from the curb yell “look out”; that he immediately applied his brakes and the impact occurred about 4 feet from the front of his car at a point near the handle of the right front door; that he stopped his car within 5 seconds and did not travel more than 6 feet after hearing the cry “look out.”
Officer Jambor, who investigated the accident, said that he tested the brakes of defendant’s vehicle and found them in good condition. He also testified that the skid marks left by defendant’s car were 2 feet 4 inches in length.
The accident occurred on the main thoroughfare in the city of Saginaw. This street' is also the route of highway US-10. The accident happened at 5:18 p.m. when traffic was at its heaviest. Defendant was on his way home from work. He was driving at a legal speed, in- the proper lane.
Plaintiff, attempting to cross in the middle of the block, suddenly darted into the side of defendant’s car. Defendant had not seen plaintiff and almost immediately stopped his car after hearing the shouted warning.
There is no evidence of defendant’s negligence, and the court properly directed a verdict of no cause of action. Affirmed.
Dethmers, C. J., and Carr, Smith, Black, Edwards, and Kavanagh, JJ., concurred.
Souris, J., took no part in the decision of this ease. | [
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Fitzgerald, J.
Defendant was convicted by a jury of uttering and publishing and was sentenced to a prison term of 7 to 14 years. He appeals as of right.
On May 4, 1972, officers Yeakel and Farr of the Kalamazoo Township Police Department responded to a call from a Town & Country Market store clerk advising them that he had honored a personal check which he suspected to be forged. Defendant fled upon the arrival of the police and a foot-chase ensued. As Officer Yeakel gained ground, the defendant stopped, turned around and held a straight razor over his head. Yeakel drew his weapon and defendant dropped the razor. Defendant was arrested , and advised of his Miranda rights, electing to remain silent when asked his name, address and age.
He was then taken to the police station and advised of his Miranda rights a second time, again refusing to divulge his name. Officer Farr testified that defendant appeared fidgety and somewhat dazed. He had "watery eyes, he, was sniffing, his nose was running, [and] he was nervous”. Officer Yeakel then asked if he was a heroin addict and he admitted that he was. When asked if he was suffering from withdrawal symptoms, defendant answered affirmatively. Defendant indicated his last heroin injection had occurred approximately 12 hours earlier. Officer Yeakel then offered to obtain methadone for defendant, telephoned a local hospital, and arranged to present defendant for treatment within 30 minutes to an hour. The record indicates that 40 minutes to an hour and a half elapsed before defendant was taken to the hospital. During this period defendant was told that a source of methadone had been located. He was then given his Miranda rights for a third time. Defendant stated he knew each of the rights explained to him and agreed to answer questions, making several damaging admissions. He admitted to obtaining the check from someone other than the indicated drawer and cashing the check at the Town & Country Market. No written record of defendant’s waiver of Miranda rights, nor of any questions, answers or statements by defendant were made at that time. Following these admissions, defendant was taken to the hospital where a methadone shot was administered. Subsequently, he was jailed.
At a Walker hearing held June 1, 1972, the judge concluded that defendant’s statements were voluntarily made. The court indicated that it was proper for the officers to procure methadone for defendant, and found no irregularities in the interrogations made prior to their departure from the station house.
At trial, Mary Stockwell testified that bank checks belonging to her were forcibly taken a few days prior to defendant’s arrest. The check was written against her account, but she was not the maker, nor was any party authorized to write checks on her behalf.
Officer Farr testified that he made notes of defendant’s responses and statements some four hours following the interrogation. He also stated that 13 days following the interrogation, he had prepared a summary of defendant’s oral statements, excerpts of which were read to the jury over defense counsel’s objection. Officer Farr refreshed his memory prior to trial by reviewing the notes he made shortly after the interrogation along with reports prepared by other officers. At that point, defendant’s motion for a directed verdict on the ground that the prosecution had failed to establish defendant’s intent to defraud was denied.
The defense consisted solely of defendant’s own testimony. He stated he overheard a man attempting to cash the check in question by using defendant’s name. Defendant grabbed the check, verified the fact that he was the payee, and later presented the check to the Town & Country Market. The storekeeper excused himself in order to purportedly determine the check’s validity and phoned the police. Upon the arrival of Officers Farr and Yeakel, defendant fled. A chase ensued resulting in defendant’s eventual apprehension.
We first decide whether damaging admissions made by defendant in response to police interrogations are admissible where defendant remained completely silent when asked on two prior occasions to identify himself. We must further determine the effect of the police officers’ offer of methadone treatment to counteract heroin withdrawal symptoms upon the voluntariness of defendant’s admissions. Defendant maintains it was improper for the police to disregard his desire to remain silent by continuing to interrogate him. He argues that repeated requests that an in-custody defendant answer questions is inherently compulsive and violates his constitutional right against self-incrimination. The people contend that defendant was interrogated only once, and during that time defendant indicated that he understood all the rights that were given him and voluntarily agreed to answer questions posed by the interrogating officers.
Miranda v Arizona, 384 US 436; 444-445, 473-474; 86 S Ct 1602, 1612, 1627-1628; 16 L Ed 2d 694, 707, 723; 10 ALR3d 974, 993, 1011 (1966), sets forth the proper interrogation procedures to be followed:
"If [the accused] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.
"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.”
Defendant remained absolutely silent when asked his name, address, and age at the time of his arrest and later at the police station. We do not agree with the people’s contention that asking defendant to reveal his name, address and age does not constitute an interrogation. The general nature of the inquiries does not reduce them to a perfunctory status to which a response is expected. It constitutes an interrogation nonetheless. Nor are we able to accept defendant’s argument that by remaining silent when asked to disclose this basic information, he invoked his privilege against self-incrimination. While absolute silence may be argued as being an emphatic expression of defendant’s right to remain silent, no assurance is given that defendant was aware of this right. The two attempts to identify the defendant by asking his name, address and age were not designed to intimidate or badger defendant, nor can his silence be presumed to communicate his right to remain silent. The first indication that defendant understood his rights was an affirmative response to the question, "Do you know each of these rights I have explained to you?”, after which he agreed to answer some questions. Thus, no significance can be attached to the two prior occasions upon which the identity of defendant was sought.
In People v King, 34 Mich App 275; 191 NW2d 80 (1971), a conviction was sustained where defendant responded to questions regarding his involvement in a breaking and entering. Defendant initially indicated he did not wish to discuss the matter, but later he voluntarily relinquished his silence by providing the police with his name and other information, believing that this evidence would eventually be discovered by the police. This evidence, together with a signed confession, was admissible at trial, the majority holding that defendant was not a victim of trickery, coercion, maltreatment, or long detention. In the instant case, defendant’s damaging statements were responses to questions rather than volunteered ad missions. This distinction is of little significance in view of the Court’s statement at 279; 191 NW2d at 81:
"As I read Miranda, it prohibits the admission of neither volunteered information nor that given pursuant to an understanding and intelligent waiver.”
Defendant’s affirmative response that he understood the rights given him on its face constitutes a waiver of his right against self-incrimination. Whether this waiver was understandingly and voluntarily given is the subject of our next inquiry.
Did defendant’s physical condition, together with the prospect of receiving methadone to counteract heroin withdrawal symptoms vitiate his waiver of right against self-incrimination? Defendant contends that the officers, while not creating the physical discomfort suffered by defendant, indirectly coerced the defendant to respond to questions since they controlled whether or not defendant would obtain relief by securing the methadone. The validity of a waiver is a question of fact to be determined in each case. People v Matthews, 22 Mich App 619; 178 NW2d 94 (1970). The record is barren of any testimony suggesting that defendant’s physical and mental condition prevented him from voluntarily waiving his right against self-incrimination. The observations of defendant testified to by Officers Yeakel and Farr represent the only evidence of defendant’s reaction to the drug withdrawal. Each stated that defendant understood the questions which were asked of him. Nor does the record reveal that defendant’s statements were given in exchange for the promise of receiving a methadone treatment. We agree with the trial judge’s ruling that nothing appeared in the record to indicate that defendant was suffering from withdrawal symptoms to the degree that he would make statements involuntarily.
Defendant’s contention that he was denied due process because the petit jury array may have excluded an allegedly substantial class of the community is without merit. No pretrial motions were requested before the jury was sought to be impaneled and the defendant expressed his satisfaction with those jurors impaneled. The procedure for selecting jury panels is provided in MCLA 600.1354; MSA 27A.1354 and is controlling. Defendant did not request the allowed continuance so that the jury list could be corrected as provided in the statute, nor did the defendant exhaust his peremptory challenges. Defendant’s expression of satisfaction with the jury waived any error. People v Tubbs, 22 Mich App 549; 177 NW2d 622 (1970).
Defendant next argues that reversible error occurred by the trial court’s failure to record the closing arguments of counsel. This argument is also without merit. The record clearly indicates that defendant specifically waived recordation of the closing arguments. Further, it is not alleged that any prejudicial statements or activity occurred during the closing arguments. Were this the case, defendant had available to him procedures for settling the record which he chose to ignore. GCR 1963, 705.
Reversible error is said to have resulted by permitting a police officer to read to the jury from a summary of defendant’s oral statements compiled by him without a showing that he had no present recollection and without laying a foundation for the introduction of the summary itself. We agree with the people that defendant misinterprets the officer’s statements and the purpose of their introduction. Officers Farr and Yeakel both testified as to the previous admissions of the defendant without the assistance of the summary compiled by Officer Farr. Following cross-examination of Officer Farr regarding the summary content, and redirect by the people, the witness read the following statement from the summary:
"Mann stated he knew the check was bad but stated he thought he could get away with it.”
On re-cross-examination it was revealed, as stated earlier, that the summary of the interrogation was made 13 days after the incident from Officer Farr’s memory. Officer Farr testified from his present memory. The summary objected to was not brought before the jury until defendant initiated this line of interrogation by attempting to impeach Officer Farr’s memory. The issue here is not whether or not he had present recollection, but rather whether Farr’s recollection of defendant’s admissions testified to in court was consistent with his recollection of defendant’s specific admissions at the time the summary was compiled. The summary was used solely for the purpose of showing prior consistent statements rebutting an attack on Officer Farr’s recollection. The statement was not read to prove the truth or falsity of the matters recited, nor the truth or falsity of Officer Farr’s testimony. As a method of demonstrating that no inconsistency existed, it was proper that both statements be cárefully weighed by the jury. Defendant opened the door by cross-examining the witness regarding the summary and he cannot now argue that reversible error occurred when the witness read from the summary to dispel any alleged inconsistencies between his testimony and the recorded summary. The trial judge correctly ruled that the people were permitted to rehabilitate the testimony of Officer Farr since the defendant introduced a question concerning the accuracy of the witness’s memory. Moreover, assuming arguendo that admission of the testimony in question was error, it was harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972).
Finally, defendant urges that his conviction be reversed because the court did not instruct the jury on allegedly lesser included offenses of obtaining money under false pretenses, forgery, uttering forged notes, drawing a no-account check, or attempted uttering and publishing. Defendant stated his satisfaction with the jury instructions that their verdict shall be guilty or not guilty. Applying the rule of People v Membres, 34 Mich App 224; 191 NW2d 66 (1971), we conclude that reversal is not warranted. The Membres Court stated at p 232; 191 NW2d at p 69:
"that Lemmons [384 Mich 1; 178 NW2d 496 (1970)] requires a reversal only where: (1.) there is no request for an instruction on lesser offenses; (2.) there is evidence on the record to support a conviction on a lesser offense so that, if requested, it would have been error to refuse to instruct on it; and (3.) the court affirmatively excludes the jury from considering lesser offenses.”
No evidence was introduced that defendant actually forged the check, or drew the check without having a bank account, both of which were specifically denied. Furthermore, none of the suggested alternatives are "included” but are in fact separate crimes. Defendant’s sole defense is that he was unaware that the check was false, forged, altered, or counterfeited, claiming he gave it to the grocer inquiring whether or not it was valid. However, defendant’s testimony confirmed the exis tence of all other elements necessary for a conviction of the crime charged. Thus, defendant was either guilty as charged or not guilty, and the jury was properly instructed. People v Henry, 44 Mich App 290; 205 NW2d 498 (1973).
Affirmed.
All concurred.
MCLA 750.249; MSA 28.446.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). | [
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] |
T. M. Burns, P. J.
Defendant was found guilty by a jury of armed robbery. He was sentenced to a term of from 25 to 50 years imprisonment and appeals.
Prior to trial defense counsel moved for a determination of defendant’s competency to stand trial. Accordingly, the trial court ordered the defendant committed to the Center for Forensic Psychiatry of the Department of Mental Health for psychiatric evaluation. On June 21, 1967, after the requisite testing, it was recommended that the defendant be considered incompetent to stand trial. The trial court held a hearing on the matter, adjudicated the defendant incompetent to stand trial, and ordered him committed to the Ypsilanti State Hospital for treatment on June 29, 1967.
Subsequently, on January 4, 1968, medical personnel at Ypsilanti State Hospital deemed the defendant competent to stand trial. On January 19, 1968, the trial court adjudicated the defendant competent to stand trial. Following a three-day jury trial held on March 18-20, 1968, the defendant was found guilty of armed robbery.
The main thrust of the defendant’s appeal relates to an allegation that he was denied a fair trial by his counsel’s failure to employ the defense of insanity.
At the beginning of the second day of trial, defendant advised the court of his dissatisfaction with his court-appointed attorney due to the fact that he had failed to give notice of and prepare an insanity defense. Defense counsel responded that in his opinion the defense of insanity was inapplicable and he had so advised the prosecuting attorney the week preceding trial. Defense counsel conceded that he had not told the defendant that the defense of insanity would not be employed until the day before trial. The prosecution objected to any new witnesses being brought on to testify in the defendant’s behalf regarding the insanity defense and insisted on the four-day statutory notice. See MCLA 768.20; MSA 28.1043. The trial court stated that it would have granted a continuance at anytime before the commencement of the trial upon the basis that an insanity defense would be presented. The defendant explained that he did not tell the court beforehand that he wished to employ the defense of insanity because he did not know how to do so. Defendant stated that he stopped the trial when he did, "Because the voice told me to stop it now, if I didn’t, I’d die”. The trial court, however, refused to recess the trial at midpoint for the imposition of the insanity defense, and the trial continued.
Where a defendant asserts that a serious mistake on the part of thé defense counsel resulted in an unfair trial, a new trial will only be granted when it appears that the new trial, wherein the mistake complained of would not be repeated, will in all likelihood result in an acquittal. People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969).
Although the test for insanity as a defense in criminal cases and the test for competency to stand trial are different and also focus upon separate points in time, cf. People v Martin, 386 Mich 407, 418; 192 NW2d 215, 220 (1971), and MCLA 767.27a; MSA 28.966(11), it does not follow that they are unrelated. The fact that the defendant had been initially adjudicated incompetent to stand trial should have been a strong suggestion to defense counsel of the probability that an insanity defense would have prevailed at trial. In addition, defense counsel in his motion for a determination of competency stated that the defendant had a history of instability including a period of hospitalization in Washington, D.C., for mental difficulty, he had attempted suicide, was unresponsive to questions part of the time, and that the defendant’s father had filed a petition in probate court to have defendant declared mentally incompetent. The report from the Center for Forensic Psychiatry diagnosed the defendant as having "schizophrenic reaction, chronic undifferentiated type” and stated inter alia that the defendant had attempted suicide on three occasions between 1959 and 1965, that he was "psychotic and his holds on reality are very fragile”, and that the defendant showed inappropriate laughter numerous times, stated he heard voices, and suffered from religious delusions.
At trial the defendant’s parents corroborated the psychiatric report with regard to the hospitalization and counselling received in Washington, D.C. Although the defense at trial was predicated upon the alleged inability of the defendant to form the requisite intent because of his use of alcohol and marijuana, the defendant’s testimony also supports and indicates the appropriateness of an insanity defense. For example the defendant testified that when the victim of the armed robbery pulled a gun, he was "horrified” and "exploded”. In response to defense counsel’s next two questions, the defendant responded:
”Q. Do you remember being stopped or apprehended?
’A. Yes, sir, I do. I remember being on the ground. Prior to today I hadn’t remembered being on the ground. Today, when the testimony was brought up I do remember laying on the ground. Whether I was back or face down I am not sure, bub I have the feeling that yes, I recognize it, and knew I was on the ground backwards, yeah, backwards. Everything looked backwards.
"Q. Can you remember anything specifically that happened from there on in?
"A. No. When I testified I exploded, I blacked out, because after that everything became very, very bright and nothing until the next instant, which is the very next instant to me, is the bright light in my head, the reflection — not the reflection — but the feel from my head in the side of the window because I had been thrown in the ditch in the car.”
Throughout his testimony, defendant stated that he "kept losing awareness of what was going on and losing intervals of time” that "consciously sometimes I’m asleep”, and "I wasn’t consciously aware of things, everything”, and that he had thought about killing himself but something in him forced him to smoke marijuana rather than commit suicide. The defendant was not generally unresponsive to questioning at trial; however, he did testify to an "illusion of no time” and a lack of recollection of the armed robbery and surrounding incidents. We have detailed the testimony adduced at trial for the purpose of demonstrating the ease with which defense counsel could have become familiar with the defendant’s mental state before trial.
In view of the foregoing type and quantity of evidence readily available and tending to support a defense of insanity, we are hard pressed to understand the defense counsel’s position that the facts did not warrant the entry of an insanity plea. Even though defense counsel misstated the Michigan rule on insanity as only constituting the M’Naghten Rule of being able to tell right from wrong when the correct standard is in actuality the M’Naghten Rule coupled with any situation in which the willpower of the defendant is insufficient to restrain commission of the wrongful act, People v Martin, supra, p 418; 192 NW2d p 220, it is our opinion that the evidence available before trial would have supported an insanity defense based upon the M’Naghten Rule alone in view of the testimony that the defendant was psychotic, had a fragile hold on reality, heard voices and suffered from religious delusions.
Under the circumstances of this case, it is readily apparent that defense counsel made a serious mistake in not employing the defense of insanity. Applying the Degraffenreid test to the facts of the case at bar, we are persuaded that at a new trial where the defense of insanity is prepared, noticed, and presented there is a likelihood defendant would be found not guilty by reason of insanity. Consequently defendant’s conviction is reversed and the case is remanded for a new trial.
The quantity of evidence available before trial tending to show that an insanity defense would have been meritorious and the lack of a sound reason for failing to present such a defense mandate the reversal, and we caution that this case should not be treated as a license to seek a new trial everytime defense counsel fails to present the defense of insanity.
In view of our disposition of the case, the other issues raised by the defendant concerning the competency to stand trial and the refusal of the trial court to grant a continuance or mistrial need neither be discussed nor decided.
Reversed and remanded.
All concurred.
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Holbrook, P. J.
On January 12, 1972, defendant was convicted by a jury of breaking and entering a house trailer with intent to commit larceny, MCLA 750.110; MSA 28.305, and armed robbery, MCLA 750.529; MSA 28.797. On February 8, 1972, he was sentenced to prison for a period of 5 to 10 years on the breaking and entering charge and a period of 10 to 40 years on the armed robbery charge.
At the sentencing the defendant vehemently asserted his innocence and in response the trial court stated:
’’The Court: Well, part of our problem, Louis, is that the jury heard the testimony, and the jury found you guilty—
’’Defendant: But the—
’’The Court: —frankly, and Mr. Elmore went up and took a polygraph test and he stated in the polygraph test you were the one that went in the trailer, and you were the one that went in and beat up the old man and the polygraph operator said he’s telling the truth.
’’Defendant: That’s the polygraph operator. That man ain’t — if I come in with a pistol, Judge, and beat you up, you wouldn’t mistake me for that man. * * *
" — or nothing. Now, you done told me that this Bob Elmore took a polygraph test, and they — and you all going by this polygraph test.
’’The Court: I’m not going by the polygraph test.
’’Defendant: Could you please tell me what kind of— what evidence do — can you all show me what you all sending me to the penitentiary on?
"The Court: Well, what you are being sentenced on, Louis, is the—
"Defendant: Anything—
"The Court: —verdict of the jury.
"Defendant: The verdict of the jury?
"The Court: That’s right. Now—
"Defendant: Because Linda Sue is white. I’m a black man. That’s why they took her word. How can they take her word more better than mine and the woman be arrested for perjury in the courtroom, but my word is still not as good as hers? How — what else can it be, man, but a—
"The Court: Well—
"Defendant: Can’t be right. * * *
"The Court: Louis, let me ask you this question, and this is something the court’s got no business asking you. Are you willing to take a polygraph test?
"Defendant: For what?
"The Court: All right, I just asked.
"Defendant: Well, will it be — it help me?
"The Court: You just answer the question yes or no. "Defendant: Tell me how it can help me.
"The Court: You just answer the question yes or no. "Defendant: No, I ain’t taking nothin’.”
A motion for a new trial was placed on file before the sentencing, but apparently because the defendant wanted a new attorney it was not heard. On October 30, 1972, a hearing was held on defendant’s renewed motion for a new trial and resentencing. A motion was also made that a judge other than the trial judge hear the motions, because the trial judge was prejudiced by his knowledge of Robert Elmore’s polygraph test. All motions were denied. Defendant now appeals.
It has been a longstanding unequivocal rule in this state that the results of lie detector tests or reference to them are inadmissible at trial. People v Frechette, 380 Mich 64; 155 NW2d 830 (1968); People v Becker, 300 Mich 562; 2 NW2d 503 (1942); People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). In People v Sinclair, 21 Mich App 255; 175 NW2d 893 (1970), this Court found it error for the lower court to discuss the results of a lie detector test of the alleged guilty party at a hearing on the defendant’s motion for a new trial. In defendant’s case here it is not clear from the record below whether the trial court considered the polygraph test results in denying the motions for a new trial, but his awareness of them from the sentencing certainly suggests he might have. We must, therefore, remand this case for a rehearing of defendant’s motion for a new trial before a different trial judge. We believe Sinclair, supra, provides us with no other realistic alternative.
As for the propriety of another person’s, in this case defendant’s alleged accomplice’s, lie detector test becoming part of defendant’s presentence report, the issue is apparently a novel one in this jurisdiction. The statute authorizing the taking of presentence reports states that the probation officer shall only inquire into the "antecedents, character and circumstances of such person or persons”. MCLA 771.14; MSA 28.1144. As was held 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”. (Emphasis supplied.) If polygraph test results are such unreliable indicators of veracity that they must be excluded as evidence in trials and in hearings on motions for new trials, they must be similarly excluded from presentence reports unless the defendant consents to have such test results placed in his report. The sentencing of a defendant is one of the most critical stages in the criminal process in terms of the practical impact on a defendant’s life. While it may be necessary for presentence reports to be based in part on opinions and other less than completely reliable information in order to ascertain a defendant’s true character, where acknowledged unreliable pieces of information can be identified, they should be excluded. Cf. People v Edgett, 39 Mich App 392; 197 NW2d 525 (1972). Until polygraph tests become scientifically more reliable they must not become a part of a defendant’s presentence report unless he consents to their inclusion. While there is nothing in the record to clearly indicate that the defendant’s sentence was based on the trial judge’s belief in Elmore’s polygraph test results, we cannot help but wonder what effect the judge’s knowledge of the test results had on defendant’s sentence. Moreover, it was clearly improper, as the trial judge himself in his statement quoted above recognized, to ask the defendant if he were willing to take a polygraph test. Such a question would not be proper at trial, and we cannot see how it could be relevant after a defendant’s conviction. We hold that this questioning by the trial judge during defendant’s sentencing requires resentencing now before a different judge. Resentencing depends, of course, on the results of defendant’s hearing on his motion for a new trial.
Because of our disposition of this case, we need not discuss the other issues defendant raises on appeal. Remanded for proceedings consistent with this opinion. We do not reserve further jurisdiction.
All concurred. | [
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Bashara, J.
Plaintiff was injured April 15, 1969 while riding in a coach operated by defendant Great Lakes Transit. The defendant admitted liability before trial and the matter of damages was the only issue for jury determination. A verdict was returned for plaintiff in the sum of $17,407. Defendant’s motion for a new trial was denied.
The primary basis for defendant’s appeal is an allegation that prejudicial error was occasioned by plaintiff’s counsel in his reference to extra-record facts during defense counsel’s closing argument. The following colloquy at trial frames the issue:
"Mr. Gemmill [for defendant]: He made a claim on the 1967 accident. Of course, he couldn’t on the ’68 accident because that was his fault. Mr. Meyer [plaintiffs attorney] points out that you know the fact that he saw a doctor after the ’68 accident should convince you that because he didn’t have anybody to sue, then there must have been something wrong with him or he wouldn’t have seen a doctor. We don’t know how often he went to a doctor after that particular accident. And, as a matter of fact, we don’t know the status of the claim that he was making as a result of the first accident [1967], whether or not that had even come—
"Mr. Meyer [for plaintiff]: Your Honor, I must interject an objection when Mr. Gemmill stands up there and tells the jury that, when he knows he asked my client both those questions specifically on the deposition. He answered them on the deposition. How he can, how he can stand up there and tell this jury that now when he took the deposition himself. He asked my client those specific questions and he, my client gave specific answers to the questions there.
"Mr. Gemmill: He is giving testimony that isn’t even in evidence. What can I say at this point?
"The Court: You can answer his objection.
"Mr. Gemmill: It’s an improper objection to talk about deposition evidence. We are talking about the trial, what’s occurred here in the past two days. Mr. Meyer is referring to something that has not come before this jury. I object to his even bringing this up. It’s got nothing to do with anything that occurred there [here?].
"Mr. Meyer: Your Honor, I don’t think it’s proper for a lawyer to deliberately tell, raise issues to the jury which he knows it’s contrary. He has already heard the answer.
"Mr. Gemmill: I would like to address myself in the absence of the jury.
"The Court: The jury retire to the jury room.”
The deposition testimony referred to had never been introduced into evidence and should not be the subject of closing argument. Argument of counsel should relate only to issues before the court and evidence adduced at trial. He may draw reasonable inferences from that evidence, but he cannot express his opinions or conclusions upon matters not found in the record. Hayes v Coleman, 338 Mich 371; 61 NW2d 634 (1953); Gonzalez v Hoffman, 9 Mich App 522; 157 NW2d 475 (1968); 53 Am Jur, Trial, § 480. Defendant further asserts that the statement was so prejudicial as to require reversal, relying on Steudle v Yellow & Checker Cab & Transfer Co, 287 Mich 1; 282 NW 879 (1938), and Daly v Pere Marquette R Co, 197 Mich 340; 163 NW 883 (1917). The facts in Steudle and Daly, supra, indicated either a deliberate and continuous course of conduct or an outrageous statement which would require reversal despite a curing instruction.
A review of this record reveals that defense counsel did not object to any other action of plaintiffs counsel. We find no manifest injustice in his course of conduct, save the error complained of. The case at bar, therefore, does not fall within the ambit of the Steudle and Daly cases, supra.
Defendant next contends that the trial judge, in giving a curative instruction to the erroneous statement, compounded rather than cured the error.
The record indicates that the jury was excused, and, after admonishing plaintiffs counsel, the trial judge indicated he was going to give a curative instruction. He advised counsel of the nature of his instruction as follows:
"The Court: * * * The court is going to instruct the jury the purpose of argument and that they are to decide this case, not on argument of counsel but on the testimony that they hear from the witness stand. And if either counsel misstates any of the testimony, that they are to rely upon what they heard and not what counsel has stated.”
No objection was raised to the form or substance of the curative instruction. The jury was recalled and the trial judge gave the instruction in substantially the same manner as he did out of the presence of the jury. No further objection was raised by either party after the instruction was given.
There does not appear to be any manifest injustice in the trial court’s curative instruction. The failure to timely object to it will preclude further review. Sladek v Wilhelm, 41 Mich App 296; 199 NW2d 869 (1972); Crenshaw v Goza, 43 Mich 437; 204 NW2d 302 (1972), GCR 1963, 516.3.
We conclude, then, that the action of plaintiffs counsel in stating extrajudicial facts so as to cast doubt on the credibility of defense counsel’s argument may have been improper. We are convinced that although plaintiff’s counsel came dangerously close to jeopardizing this trial, his remarks could have been cured by instruction. The objection to what one considers an erroneous instruction must occur in a timely fashon. The trial court here clearly performed the proper function to which it is assigned during trial.
Defendant’s final claim of a prejudicial verdict is not supported by the record. The only real evidence of possible prejudice is that which transpired during the closing argument. We need delve no further into that allegation for the reasons previously stated.
Affirmed, costs to plaintiff.
All concurred. | [
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T. M. Burns, J.
Defendant was convicted by a jury of conspiring to break and enter with intent to commit larceny, breaking and entering with intent to commit larceny, and larceny in a building. He was sentenced to concurrent terms of from four to ten years imprisonment on the larceny and breaking and entering counts and from two to five years imprisonment on the conspiracy charge.
On the morning of August 19, 1972, the proprietor of Leo’s Grocery in Marenisco, Michigan, discovered that his establishment had been broken into during the previous night and that various merchandise had been stolen. The incident was reported to the State Police.
The officer assigned to investigate the case learned that Janet Price, a friend of the defendant, might have information concerning the crime. She was taken to the State Police post and after being advised of her constitutional rights in accordance with Miranda v Arizona she voluntarily gave a tape-recorded statement to the police which implicated the defendant in the crime. As a result, the defendant was arrested and subsequently gave a statement to the sheriff which admitted that he had planned and participated in the breaking and entering with other individuals.
At defendant’s trial, Janet Price was called to the stand by the prosecution. To most of the prosecution’s inquiries concerning her knowledge of the crime she responded, "I don’t remember”. The jury was excused and the witness’s tape-recorded statement was played in an effort to refresh her recollection. However, the witness steadfastly maintained that her memory was not refreshed. The prosecutor then requested to cross-examine the witness. The trial court granted the request. During the cross-examination phase of the witness’s testimony, the prosecutor was able to elicit many more positive responses than he had been able to do on direct examination. On two occasions during the cross-examination of witness Price by the prosecutor, she was asked if she had told the investigating officer about a conspiracy to commit the crime. Both times the witness stated she did not remember.
Next the prosecutor called the investigating officer to the stand. In response to the prosecution’s queries, the officer proceeded to explain what witness Price had related in her statement with regard to the plans for a breaking and entering. The trial court, however, admonished the prosecutor to restrict the questioning to matters testified to by witness Price while she was on the stand.
Finally, the entire tape-recorded statement of witness Price was played to the jury. The trial court instructed the jury, however, that the tape-recorded statement could only be used to impeach the credibility of witness Price and could not be considered as substantive evidence that the crime had been committed.
I
As the first assignment of error on appeal defendant argues that the prosecutor improperly impeached witness Price by introducing into evidence statements she could not remember and which she had not testified to on direct examination.
The procedure employed to impeach witness Price in the case at bar was similar to that used in People v Durkee, 369 Mich 618; 120 NW2d 729 (1963). In Durkee, the defendant was charged with negligent homicide as a result of an automobile collision. A passenger who had been riding in the front seat of the defendant’s auto at the time Of the mishap gave a statement to a . deputy sheriff while at the hospital. At trial the passenger was called to the stand but indicated she had no recollection of the collision or of making a statement to the police. The prosecutor was allowed to cross-examine the witness about her prior statement. However the witness maintained she had no recollection of the matter. Subsequently the deputy sheriff was summoned to the stand by the prosecutor and related that the witness was asked certain questions about the accident. The deputy also explained how those questions were answered. The Supreme Court reversed the defendant’s conviction on the grounds the passenger-witness was improperly impeached. The Court quoted from Anthony v Hobbie, 85 Cal App 2d 798, 804; 193 P2d 748, 751 (1948), which held:
" 'Where a witness merely states that he does not remember he cannot be impeached by the showing of former statements regarding the facts which he claims not to have remembered. In any event the introduction of such prior statements would be of no value as affir mative evidence of the facts stated but would only serve to impeach the statement that the witness does not now remember. Thus there would be no introduction of any positive evidence by the admission of the former statements concerning the facts of the accident.’ ” People v Durkee, supra, 625; 120 NW2d at 732.
The Court then went on to state that the prosecutor’s efforts to impeach the witness were " * * * purely negative, because it was not directed toward facts the witness testified to but rather toward facts to which the witness did not testify”. 369 Mich at 626; 120 NW2d at 732.
Such is the case here. Close scrutiny of the transcript discloses that in responding to the prosecutor’s questions designed to impeach witness Price, some of the investigating officer’s testimony went beyond the responsive answers given by witness Price while she was on the stand. This testimony was not inadvertent but was solicited by the prosecutor. Under the rationale of Durkee these attempts by the prosecutor to impeach witness Price that were directed toward facts to which she did not testify or recall constituted reversible error. Moreover, since the witness’s tape-recorded statement to the police included facts about the crime she could not recall at the time of the trial, the error was compounded when the tape-recorded statement was played to the jury for impeachment purposes.
II
Next it is the defendant’s position that there was insufficient evidence presented at trial to sustain the conspiracy conviction.
This Court does not sit as a reviewing jury and hear criminal cases de novo. Where there was competent evidence presented at trial to justify the trier of fact’s verdict, that verdict is final. People v Harper, 43 Mich App 500; 204 NW2d 263 (1972), lv den 389 Mich 759 (1973).
In a prosecution for criminal conspiracy, the proofs must show that there was an understanding or agreement expressed or implied between two or more persons to either accomplish an unlawful end or to achieve a lawful end by illegal means. People v Tenerowicz, 266 Mich 276; 253 NW2d 296 (1934); People v Newsome, 3 Mich App 541; 143 NW2d 165 (1966), lv den 378 Mich 745 (1966). The proofs may be circumstantial in nature, however, they must warrant a fair inference of the facts to be established. People v Sobczak, 344 Mich 465; 73 NW2d 921 (1955).
A review of the record in the instant case discloses that the only evidence which even remotely touched upon showing any agreement between the defendant and others to perpetrate the break-in was contained in the tape-recorded statement of witness Price which was played to the jury, the defendant’s inculpatory statement given to the sheriff, and the testimony of witness Price and the investigating officer. We now turn to examine the probative value of this evidence.
Witness Price, when queried about her statement to the police that the defendant and others had planned the crime, explained that she did not remember making the statement. Patently this was not sufficient evidence to establish the conspiracy. The investigating officer was called to the stand and related that witness Price did in fact make the statement that the defendant had planned with others to break into the grocery store. However not only did the trial court instruct the jury that the officer’s statement could only be considered in assessing witness Price’s credibility and not as substantive evidence of the commission of any crime, the officer’s statement was inadmissible and in plain violation of People v Durkee, discussed supra. Moreover, these same reasons negate the probative value of the tape recording played to the jury as far as substantive proof of any conspiracy is concerned. Finally although the defendant admitted in his statement given to the sheriff that he had planned with others to commit the crime, this statement standing alone, as it does, is insufficient to prove the conspiracy since the corpus delicti of a crime may not be shown by only the confession of the accused. People v Barron, 381 Mich 421; 163 NW2d 219 (1968). From the foregoing it is readily apparent that there was an insufficiency of competent evidence presented to show an agreement or understanding between the defendant and others to commit the crime in question. Therefore defendant’s conviction in the conspiracy charge cannot be sustained, and we so hold.
Ill
During the the course of the direct examination of the investigating officer, the following colloquy occurred between the witness and the prosecutor:
"Mr. Nadolney [the prosecutor]: When you state that you advised the defendant; is that the defendant here in the courtroom there,—
"A. Yes.
"Q. Mr. Miller?
"A. Yes.
"Q. And what did you do as far as advising the rights? Will you relate—
"A. Well, we have a card given to us by our depart ment with all the rights on it, and I read the rights to him off the card.
"Q. Have you got a copy of the card?
'A. Yes, I have.
”Q. Would you read it?”
The Miranda rights were read to the jury, and the witness continued:
"And I asked him, 'Do you understand what I just told you, and after he answered, I asked him if he wanted an attorney, and after that, I asked if he wished to waive or give up the right to remain silent. I asked him these questions; he said that he did not want to give a statement at that time. "(Emphasis added.)
Even though there was no objection, the defendant argues that the foregoing series of questions and answers, particularly the italicized portion, resulted in a violation of his right to remain silent contrary to US Const Am V and Const 1963 art 1, §17.
At the outset we note that the failure to object at trial does not preclude this Court from reviewing an alleged error where, as here, a constitutional right is likely to have been infringed. People v Thomas, 44 Mich App 649; 205 NW2d 604 (1973); People v Cotton, 38 Mich App 763; 197 NW2d 90 (1972).
The admission of testimony that an accused remained silent after being advised of his right to do so is reversible error unless such testimony was introduced to impeach the accused’s inconsistent statements at trial or unless it can be shown the testimony was harmless error beyond a reasonable doubt. People v Graham, 386 Mich 452; 192 NW2d 255 (1971); People v Severance, 43 Mich App 394; 204 NW2d 357 (1972), lv to app den 389 Mich 758 (1973) ; Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967), reh den 386 US 987; 87 S Ct 1283; 18 L Ed 2d 241 (1967).
Here the defendant did not take the stand at trial. Therefore there can be no question that the testimony complained of was admitted to impeach the defendant’s prior inconsistent statements. Furthermore since the prosecutor neither filed a brief in opposition nor appeared at oral argument, there is no showing that the admission of the testimony was harmless beyond a reasonable doubt. Therefore the admission of the investigating officer’s testimony quoted above was reversible error.
IV
The remainder of the defendant’s allegations of error are directed toward prejudicial conduct by the prosecutor which resulted in an unfair trial. Specifically defendant asserts that the prosecutor during closing argument: (1) inferred that testimony admitted for impeachment purposes only could be used as substantive evidence, (2) misstated testimony that was stricken from the record, and (3) introduced his personal testimony concerning the honesty of a crucial witness.
Appellate counsel for the defendant not only submitted a brief to this Court which set forth the facts of the case and thoroughly analyzed the applicable law, but also appeared at oral argument in support of his position.
On the other hand, the prosecution, although given timely notice and ample opportunity failed to prepare or file an appellate brief, appear at oral argument, or oppose defendant’s appeal in any other manner.
In a criminal case where a defendant’s allegations of error on appeal go to the question of whether the prosecution’s actions at trial were prejudicial and resulted in an unfair trial, the prosecution’s complete failure to respond to the issues raised by the defendant on appeal will be construed as an admission that the prejudice complained of existed. People v Hatfield, 46 Mich App 149; 207 NW2d 485 (1973); People v Walma, 26 Mich App 326; 182 NW2d 110 (1970).
Therefore inasmuch as the defendant in the case at bar has raised numerous questions relating to the alleged prejudicial trial conduct of the prosecutor, and since the prosecution has utterly failed to respond to the defendant’s contentions, we find that the prejudice complained of by the defendant to have occurred and that as a consequence defendant was denied a fair trial.
Accordingly for the reasons delineated above, defendant’s conviction is reversed and the cause is remanded for a new trial.
All concurred.
MCLA 750.157a, MSA 28.354(1); MCLA 750.110, MSA 28.305; and MCLA 750.360, MSA 28.592 respectively.
384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). | [
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Bashara, J.
Plaintiff appeals from a judgment of no cause of action in favor of the defendants. Decedent Joan Muczynski died on January 29, 1969, leaving as her heirs four daughters, Frances Serkaian, Adele Ozar, Janet Shay, and Lillian Spincchia. At her death the decedent possessed certain real and personal property including a joint checking account with rights of survivorship in the name of herself and her eldest daughter, Adele Ozar. Decedent also left 828 shares of stock in the Investment Company of America (ICA) and 100 shares of common stock in the Ford Motor Company, all of which were held jointly with rights of survivorship between decedent and Adele Ozar. Other bank accounts existed, each held jointly in the name of an individual daughter and the decedent mother.
Plaintiff, Frances Serkaian, instituted suit to have the bank account and stock, held by defendant Ozar as a joint tenant with the decedent, declared to be part of the decedent’s probate estate.
Plaintiff sought to introduce testimony of Horace Arthur, a stockbroker, who at various times acted as agent for decedent as well as for the parties to this suit. His testimony verified that the stock in question was transferred to the joint names of decedent and defendant Ozar in 1967. Shortly before decedent’s death in 1969, she explained to him that the stock was held jointly with defendant Ozar as she was the eldest daughter. She told him that by European custom the eldest child was to own and take responsibility for distributing the property equally to all the children at decedent’s death. The trial court excluded the testimony as-hearsay and inadmissible under any exception to the hearsay rules.
Testimony was also offered through deposition of one Margaret Antczak, a sister of decedent. She recalled several conversations in which decedent spoke of her general intent that her estate be divided equally among her daughters. No mention was made to deponent regarding the creation of the joint stock or bank account with defendant Ozar. This testimony was ruled inadmissible on hearsay grounds as well. Plaintiff contends it was error to exclude the testimony of witnesses Arthur and Antczak.
We concur in the trial judge’s ruling that Horace Arthur’s testimony would be inadmissible as it related to decedent’s declarations after she created the joint stock interests.
In Pence v Wessels, 320 Mich 195, 204; 30 NW2d 834, 838 (1948), the Court ruled on the admissibility of testimony concerning the decedent’s state of mind in opening a joint bank account, stating:
"To the extent that this testimony purported to disclose statements allegedly made by the deceased not in the presence of the defendant, añer the joint bank deposits were made, and decedent’s statements made at that time referring to his will and his intentions in disposing of his property thereunder, the testimony of this witness was not admissible to show his intentions with reference to the deposits at the time they were made. On the other hand, much of the testimony adduced from this witness was admissible. It was proper to show the decedent’s intentions and arrangements prior to his making the joint bank accounts, to rebut the presumption of joint ownership between the deceased and the defendant. Mitts v Williams, [319 Mich 417; 29 NW2d 841 (1947)].”
The admissibility of Margaret Antczak’s testimony is more difficult to determine. The exact time of her conversation with decedent is one of the key tests, but her testimony as to such conversations spans nearly five years. As some of the declarations occurred before the controverted transactions, it was error for the trial court to hold all of Mrs. Antczak’s testimony inadmissible on hearsay grounds.
The dead man’s act, MCLA 600.2166; MSA 27A.2166 was used as a ground for objecting to the testimony of Horace Arthur, Margaret Antczak, and defendant Janet Shay. Mrs. Shay testified as to declarations made to her by decedent, supporting several of defendants’ allegations. Plaintiff objected, contending Shay was a party within the meaning of the statute, notwithstanding the fact that her default had been entered. In Seeber v Citizens State Bank of Sturgis, 7 Mich App 33, 37; 151 NW2d 222, 224 (1967), the Court stated:
"The fact that Mrs. Morse was not a party to the plaintiffs’ action does not negate the fact of her antagonistic interest. The statute renders the testimony of an opposite party inadmissible whether or not the person is a party of record. Caswell v Smith’s Estate [263 Mich 390; 248 NW 845 (1933)].”
The reasoning of that decision applies to the case at bar. If an opposite party not of record may not testify, then an opposite party who has defaulted should likewise be estopped from testifying, absent corroboration. Defendant Shay’s testimony, however, concerned her mother’s intent to vest title to the stock in defendant Ozar. This testimony is corroborated by evidence on the .record that stock certificates were found indicating such joint ownership. The testimony is therefore admissible under the provisions of MCLA 600.2166(1); MSA 27A.2166(1).
The defendant’s objection to Margaret Antczak’s testimony was also based on the dead man’s act, but the record and briefs on appeal do not disclose the specific ground relied upon. Having no interest in the estate, Mrs. Antczak would be regarded as an independent third party for purposes of the statute. Finch v Modern Woodmen of America, 113 Mich 646; 71 NW 1104 (1897). This Court finds her testimony was proper subject to the hearsay limitations previously discussed.
In summary, the only relevant specific testimony of decedent’s intention as to the disposition of the stock was that of Horace Arthur. Since that testimony alluded to a period of time after the actual transfer of the stock, the exclusion was proper on hearsay grounds. The testimony of Janet Shay, and Margaret Antczak in part, should have been admitted into evidence. Shay’s testimony, however, would not change the result and Antczak’s testimony was not relevant to decedent’s intent in specifically creating the bank account and stock interest. We therefore find the exclusion to be harmless error. Knoper v Burton, 383 Mich 62; 173 NW2d 202 (1970); GCR 1963, 529.1.
Plaintiff contends that the decedent never intended to pass title to the joint bank account to defendant Ozar, but opened it for decedent’s own convenience. The ownership of joint bank accounts in Michigan is presumed to be in the survivor. The source of that presumption is MCLA 487.703; MSA 23.303 which provides in part:
"The making of the deposit [a joint account] in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding, to. which either such banking institution or surviving depositor or depositors is a party, of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors.”
The admissible testimony offered to rebut the presumption is that of defendant Ozar and plaintiffs husband. Neither witness spoke of fraud or undue influence. Both alleged that the convenience of decedent was one of the reasons for the account. Other testimony, for defendant, indicated decedent was well aware of the effect of creating a joint interest with the right of survivorship. In addition, the joint signature card with both names of decedent and defendant Ozar was produced. Evidence also showed that defendant Ozar made deposits and withdrawals prior to decedent’s death. The facts at bar are similar to those which appeared in Jacques v Jacques, 352 Mich 127, 138; 89 NW2d 451, 457 (1958), where a joint checking account was opened by the decedent with his daughter-in-law. The Court stated:
"While the evidence relied upon by the appellant may well infer that 1 of the purposes of decedent in establishing this account was to make it possible for his daughter-in-law to pay some of his bills at his direction, we agree with the chancellor below that such testimony was not necessarily inconsistent with decedent’s expressed intention of creating survivorship rights in defendant Jane Jacques.”
There was no testimony in our present suit to establish what decedent’s ultimate intent may have been as to the disposition of the account. The trial judge sitting as the trier of fact should not be disturbed in his determination that the statutory presumption was not overcome. This Court does not substitute its judgment for the trial court sitting without a jury unless findings of fact are clearly erroneous. Rouge Employees Credit Union v Wilson, 7 Mich App 16; 151 NW2d 214 (1967).
The ownership of the joint stock interest in question depended on whether a gift was made to defendant Ozar by decedent. The three elements necessary to constitute a gift are: (1) intent to pass title gratuitously to the donee; (2) that actual or constructive delivery be made; and (3) that the donee accept the gift. Osius v Dingell, 375 Mich 605; 134 NW2d 657 (1965); Jones v Causey, 45 Mich App 271; 206 NW2d 534 (1973). Plaintiff alleges there was no intent to pass title gratuitously to the stock as required in (1) above. She argues that the stock was placed in defendant Ozar’s name jointly with decedent so defendant Ozar could distribute the stock equally after her mother’s death. Further, defendant Ozar admitted decedent never told her the stock was held jointly during her lifetime.
Defendant Ozar’s position, however, is supported by several facts. First, decedent took all steps necessary in 1967 to place the stock in their joint ownership. Second, decedent did not thereafter change the stock ownership nor did she alter any provision in her will with regard to Adele Ozar. We are persuaded that when a grantor conveys stock, by transfer through a registered securities dealer, to herself and a grantee as co-tenants with rights of survivorship, delivery to one of the co-grantees is presumed to be delivery to both. Allender v Allender, 199 Md 541; 87 A2d 608 (1952).
Although no Michigan cases have been found directly on point we are impressed by the decision in Allender, supra. The decedent father there placed stock certificates in his own name and in the names of each of several children as joint tenants with the right of survivorship. The Court found that the father had retained possession of the certificates in his own safety deposit box, received all dividends, and voted all shares. Further, no other person knew of the interests until after his death. The Maryland Supreme Court held the surviving joint tenants were entitled to sole ownership, having found that all elements of a gift were present. The following language is relevant:
"We think the surrender of the old certificates and the issuance of new ones was sufficient to effect a present transfer of the donor’s interest. * * * Nor does the fact that delivery of the new certificates was made to the donor in his capacity of joint owner vitiate the transaction, since 'the possession of one cotenant is in contemplation of law the possession of the other’. Young v Cockman, 182 Md 246, 251; 34 A2d 428, 431; 149 ALR 1006, 1010.
* * *
"Nor is it material that the donees were not informed concerning the transfer. Acceptance of the gift is presumed until the contrary is shown; or, as the principle is otherwise stated, the gift is effective on transfer, subject to the right of the transferee to repudiate title and refuse to accept the gift.” 199 Md 546, 547; 87 A2d 609, 610. See also Bunt v Fairbanks, 81 SD 255; 134 NW2d 1 (1965), and Eisenhardt v Lowell, 105 Colo 417; 98 P2d 1001 (1940), for the same result.
In view of the foregoing, the trial court’s finding that the stock and bank account vested in Adele Ozar was proper. Rouge Employees Credit Union v Wilson, supra.
Affirmed. Costs to appellee.
All concurred.
"Sec. 2166. (1) in any action by or against a person incapable of testifying, a party’s own testimony shall not be admissible as to any matter which, if true, must have been equally within the knowledge of the person incapable of testifying, unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.” | [
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Fitzgerald, J.
Defendant appeals from a jury conviction of second-degree murder for which he received a sentence of life imprisonment. The facts and circumstances involved will be presented, followed by a seriatim discussion of the four issues raised on appeal.
Defendant testified to events leading up to and following the shooting death of Police Officer Kenneth Moraska in Norway, Michigan during the early hours of Sunday, May 23, 1971. His testimony revealed the difficulties he had encountered in holding a job, the strained relationship with his wife, and his previous experiences and hallucina tions from drug use. Between the hours of 6 o’clock p.m. Saturday, and 2 o’clock a.m. Sunday, defendant visited several drinking establishments and consumed a substantial amount of beer. Upon returning to his home at approximately 2 o’clock a.m. on Sunday, he phoned the police station requesting that Officer Moraska come to the house. Defendant remembered loading his father’s rifle, hearing a loud noise, and standing over the body of Officer Moraska. This recollection was substantiated by what were termed as flashbacks, that is, experiences in which neither defendant’s presence nor the occurrence itself are recalled with any degree of certainty, yet they have been impressed upon his memory to the extent that he is able to describe them. These flashbacks include observing Moraska enter the driveway, exit the patrol car, and walk up to the house. During an interrogation conducted subsequent to his eventual apprehension, defendant stated he was outside the house when Officer Moraska arrived. He admitted to firing two shots, the first from a distance and the second at point-blank range.
Defendant further testified to events following the shooting. He drove the patrol car seven miles to Benton Lake, returned to Norway, proceeded to Felch, and then on to Escanaba where he purchased gasoline for the patrol car. From there he backtracked through Felch, gaining entrance to a nearby cabin by shooting the lock off the door. Defendant remained in the cabin for the rest of the evening. At about noon on Sunday, the owners of the cabin, Mr. and Mrs. William Frazer, together with their three children, approached the cabin in their car. As two of the children walked toward the cabin on foot, defendant opened the cabin door and emerged, pointing both his rifle and Officer Moraska’s pistol at the Frazers. He instructed them to stand behind an old truck and ordered them to throw the car keys into the woods. After they complied with his request, defendant then turned and ran up the road. Soon after, he was apprehended by the State Police a short distance away.
A typed statement prepared from an interrogation session was signed by the defendant. He stated he did not like the deceased, blaming Moraska’s arrest of defendant for disorderly conduct as the reason he and his wife were unable to reconcile their separation. Though his original plan was merely to hit Officer Moraska, he had decided that evening to kill him.
At trial, four witnesses testified to defendant’s appearance and demeanor during the night of the shooting. Ronald Orler, chaperoning a dance held at the Norway Teen Center, observed defendant at various times between 9:30 and 11 p.m. and noticed nothing unusual. He described defendant as being "sober and normal, well-behaved”, although he had not personally known or talked with defendant previously. Marvin Hanson testified that he played at least two games of pool with defendant at the Norway Hotel between the hours of 1 a.m. and 2 a.m. Sunday morning. He drove the defendant to his home following the pool games and noticed nothing unusual. Gordon Wills, Jr., had known defendant since childhood and had seen him once a month during the past year. He was with defendant at the Teen Center and later accompanied him to defendant’s house. While outside the Teen Center, Wills and defendant observed Officer Moraska drive by, at which time defendant stated he was going to kill Moraska. On cross-examination, Wills testified that this expres sion was a manner of speech among their friends. Wills noticed nothing unusual in defendant’s manner of speech, attitude, or appearance. William Zanona, bartender at the Norway Hotel on the night in question, observed defendant playing pool and spoke briefly to him. Zanona saw defendant once or twice a week and knew him quite well. He noticed nothing unusual except for the fact that defendant appeared "generally quieter”.
Dr. Emery E. Ulrich, defendant’s psychiatrist, testified that defendant was suffering from acute brain syndrome due to the combined effect of alcohol and LSD. This was described as a reversible disorder in the nature of a toxic illness affecting one’s ability to integrate perceptions. He stated that defendant would be incapable of forming the intent to kill and exhibited an unawareness of any object in carrying out a planned activity. He appeared to be under considerable stress because of his loneliness, his wife’s absence, and his perceived rejection.
The people’s psychiatrist, Dr. Leon J. Quinn, described defendant as one suffering from "delirium”, the symptoms of which would be obvious to a layman. He considered defendant to be suffering from a character or personality disorder and not an acute brain syndrome at the time of the killing. This diagnosis is not considered a mental illness and does not impair one’s ability to distinguish right from wrong. Nor does it affect the ability to resist acting upon impulse.
It is first alleged by defendant that it was error to admit testimony of lay witnesses concerning the sanity of defendant without an adequate foundation indicating their acquaintance with and close observation of defendant. He argues that the failure of the people to lay a proper foundation by sufficiently establishing each witness’s relationship to the defendant which would enable them to testify to defendant’s mental condition on a comparative basis renders their testimony inadmissible. People v Cole, 382 Mich 695; 172 NW2d 354 (1969). The people contend that its witnesses did not provide opinion testimony as to defendant’s sanity. Rather, they offered fact testimony material to rebut the inference of intoxication which may have precipitated the alleged insanity.
We note at the outset that defendant’s reliance upon People v Cole, supra, ignores the fact that no controlling majority opinion was rendered in that case. Justices Kavanagh, Dethmers, and Brennan concurred upon the necessity to lay a foundation for lay witnesses’ opinion evidence of sanity or insanity, requiring that the witness have the opportunity to observe the speech, manner, habits, or conduct of the person in addition to establishing sufficient acquaintance with the defendant so as to be able to testify on a comparative basis. Justice Adams concurred in the result, but relied upon the rule stated in People v Zabijak, 285 Mich 164, 185; 280 NW 149, 157 (1938), that "[a] nonexpert witness who has had ample means to observe and form conclusions as to the mental condition of a person and who testifies to pertinent facts on which his conclusions are based may state his conclusions as to the insanity of a person”. Justice Kelly concurred specially, stating that insufficient evidence was introduced to prove defendant’s sanity. Reversal in Cole, then, was based upon either the lack of opportunity to compare the witness’s conduct on different occasions, the lack of ample means to observe, form conclusions or testify to the facts upon which the conclusions were based, or the insufficiency of evidence to outweigh that which casts a reasonable doubt as to defendant’s sanity. Failing to arrive at a majority opinion on this issue, Cole is of limited precedential value.
We are persuaded that the testimony adduced from lay witnesses on the basis of their opportunity to observe defendant is admissible. In People v Hannum, 362 Mich 660, 665; 107 NW2d 894, 896 (1961), the Court defined the question of admissibility of lay witness testimony regarding the sanity of defendant as being one of weight and not admissibility. There, objection was made to the testimony of three police officers who had observed the defendant for a short period of time prior to her arraignment in the shooting death of her husband. Each officer testified that defendant was sane. Defendant argued that the lack of proper foundation in addition to the lack of sufficient opportunity to observe the defendant rendered the testimony incompetent, citing People v Zabijak, supra. The Hannum court distinguished Zabijak in stating that the latter testimony did not consist of lay witnesses’ opinions of defendant’s insanity, but rather their conclusions as to what facts there were about defendant from which insanity might be inferred. The instant case does not fall within either category. Each witness responded negatively when asked if defendant’s conduct was unusual or any degree of intoxication existed. The nature of the testimony in each case confirmed defendant’s sobriety and sanity rather than revealing any unnatural conduct or language. This distinction is made clear in People v Hannum, supra, at 663-664; 107 NW2d at 896:
"Defendant says the officers in the instant case did not have ample means to observe and form conclusions. In Zabijak, however, the testimony held properly excluded did not consist of the lay witnesses’ opinions of defendant’s insanity but rather their conclusions as to what the facts were about defendant from which insanity might be inferred. Also, it is to be observed that in O’Connor and in Zabijak the test laid down was for qualification to testify as to insanity. In the case at bar the situation is reversed, the question going to competency of evidence of sanity. In People v Borgetto, 99 Mich 336, 341, 342 [58 NW 328, 330 (1894)], this Court said:
" 'The subject has recently been discussed in the case of O’Connor v Madison, 98 Mich 183 [57 NW 105 (1893)], where the authorities are collected, and where it is held that a witness cannot be permitted to state that a testator was mentally incompetent until he has detailed some circumstances which the court can say tend to show it. * * *
" 'But there is a difference in the nature of the testimony requisite as bases for opinions in the 2 cases of sanity and insanity. The former is the normal condition; the latter, the abnormal. The latter is based upon unnatural conduct; the former may safely rest upon the absence of unnatural action or language. Once it is shown that the witness has a sufficient acquaintance under circumstances that give a reasonable opportunity for judging, and the testimony that he saw nothing unusual or abnormal is competent. What is required to show a sufficient opportunity depends upon circumstances which may properly move the judicial discretion, the testimony being more or less valuable as the circumstances are convincing. In the language of that case, when "taken as a whole, they move the judicial discretion of the trial judge, by apprising him that the witness may believe in the competency of the person upon reasonable grounds,” the opinion may be given.’ ”
The testimony of the witnesses was properly admitted. No objection was made to the admission of testimony from witnesses who had seen defendant throughout the course of the evening. The matter involved a question of weight to be given the testimony rather than one of admissibility. People v Hannum, supra, at 665; 107 NW2d at 896. The record indicates that no motion for new trial was made by defendant, nor does defendant argue on appeal that the conviction was against the weight of the evidence properly determined by the jury. The thorough cross-examination as to the opportunity and ability to observe the defendant establishes a sufficient basis for the witnesses to testify as to the appearance and demeanor of defendant. The admission of expert witness testimony of sanity and insanity creates considerable doubt as to whether the lay witness testimony on that point would have created any substantial error resulting in a miscarriage of justice. Accordingly, reversal on this issue is not warranted. MCLA 769.26; MSA 28.1096.
Defendant next contends the trial court erred in permitting the psychiatrist who examined defendant in order to determine his competency to stand trial to testify as to defendant’s sanity at the time of the offense. A review of the record does indicate that the people’s psychiatrist based his sanity opinion solely upon the basis of the forensic examination for the purpose of determining competency to stand trial. MCLA 767.27a(4); MSA 28.966(H)(4) provides, inter alia:
"Upon receipt of the diagnostic report and recommendations the sheriff shall immediately return the defendant to the committing court and the court shall immediately hear and determine the issue of competence to stand trial. The diagnostic report and recommendations shall be admissible as evidence in the hearing, but not for any other purpose in the pending criminal proceedings.”
We are aware of People v Martin, 386 Mich 407; 192 NW2d 215 (1971), cert den, 408 US 929; 92 S Ct 2505; 33 L Ed 2d 342 (1972), which precludes a psychiatrist who conducts a forensic psychiatric examination for the purpose of determining competency to stand trial from testifying during criminal proceedings on the issue of insanity if objection is raised by defendant. However, the decision in People v Woody, 380 Mich 332; 157 NW2d 201 (1968), is controlling. There, the Court reserved decision on the right of the people to use testimony of the examining psychiatrist because it was not raised at trial. We do likewise. The error contended was invited by defendant by stipulating to the use of the testimony in a pretrial agreement. Defendant’s lack of objection below did not properly preserve the question on appeal.
The photographs of the deceased which were admitted into evidence are said to be sufficiently inflammatory and prejudicial to constitute reversible error. The people maintain that the photographs offered probative evidence relating to the deliberate and premeditated nature of the killing. A total of eight photographs were shown to the jury depicting the slain police officer in relation to the surrounding scene of the crime. Defense counsel was fully prepared to stipulate and concede the position of the deceased’s body in relation to the surrounding area. We do not think it necessary for the jury to have viewed eight photographs and disapprove of their admission, but we do not find this error to be of reversible magnitude. Owing to the fact that the defendant would never have conceded premeditation and deliberation, it was of probative value to permit the jury to view photographs of the deceased in order to demonstrate the malicious nature of the killing. Where photo graphs which tend to prove deliberation and premeditation are offered to acquaint the jury with the circumstances surrounding the scene of the crime, their prejudicial effect may be outweighed by their materiality. People v Surles, 29 Mich App 132; 185 NW2d 126 (1970). Only those pictures which assist the jury in determining this information should have been admitted into evidence. Defendant’s state of mind and the surrounding areas involved could have been determined without the jury being exposed to all of the photographs submitted. In examining whether the photographs were "substantially necessary or instructive to show material facts or conditions” or merely "calculated to excite passion and prejudice”, we believe the former most accurately describes the instant case, and find no reversible error.
Finally, defendant argues that the trial court erred in imposing a sentence of life imprisonment upon a conviction of second-degree murder by stating his belief of defendant’s guilt of murder in the first degree, a crime for which defendant had been acquitted. At sentencing, the judge expressed his opinion that defendant had committed a "coldblooded, deliberate, premeditated murder”. This observation is said to constitute an independent finding by the trial court of defendant’s guilt of a crime for which he had not only not been convicted, but was in fact acquitted.
The sentence of life imprisonment for second-degree murder is within the statutory provisions set forth in MCLA 750.317; MSA 28.549. Sentences falling within the statutory limit are reversed only in the most extraordinary circumstances. This Court stated in People v Pate, 2 Mich App 66, 68; 138 NW2d 553, 554 (1965):
"When a sentence is within the maximum provided by statute, the trial court has wide discretion and an appellate court does not have supervisory control over the punishment.”
See, also, People v Pollard, 33 Mich App 114; 189 NW2d 855 (1971).
While the trial court’s remarks were perhaps intemperate, the record does not reveal that his opinion regarding the defendant’s conduct formed the basis for imposing the maximum sentence allowable. Accordingly, defendant’s sentence within the statutory maximum was proper.
None of the issues discussed presents sufficient grounds to reverse the decision of the trial court.
Affirmed.
R. B. Burns, P. J., concurred.
MCLA 750.317; MSA 28.549.
This case was decided 47 days after the commencement of trial in the instant case.
People v Eddington, 387 Mich 551, 562, 563; 198 NW2d 297, 301 (1972).
People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972).
Defendant cites Price v Georgia, 398 US 323; 90 S Ct 1757; 26 L Ed 2d 300 (1970), in arguing that acquittal of a greater charge is implied by a conviction on a lesser included offense.
"All other kinds of murder shall be murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.” | [
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] |
McGregor, J.
In an information filed July 17, 1970, defendant was charged with armed robbery, MCLA 750.529; MSA 28.797. On February 25, 1971, he pled guilty to a charge of assault with intent to rob being armed, a violation of MCLA 750.89; MSA 28.284. Defendant was sentenced to 10 to 15 years in prison.
The charge arose from a claim that defendant, in the company of an accomplice, and while armed with a pistol, forcibly took $900 from the complainant in the robbery of a junkyard.
At the pleataking, defendant was properly advised of the constitutional rights he was waiving by pleading guilty. At sentencing, the trial judge noted that defendant, then 23 years of age, had been convicted of five crimes since he was 18 years old.
Defendant later filed a delayed motion for a new trial and a motion to vacate the sentence, which were supported by an affidavit contending that defendant’s plea of guilty was coerced. After hearing extensive testimony including that of defendant, the court denied these motions.
In his primary and supplemental briefs on appeal, defendant raises a total of seven issues. In our view, the first six issues raised are simply groundwork for the frontal assault on his sentence, embodied in the seventh issue. Consequently, rather than evaluating the validity of each of defendant’s contentions separately, we deem it proper to consider only the seventh issue.
As pointedly stated in defendant’s supplemental brief, that issue is "whether consideration at sentencing of higher felony charges when appellant had been convicted of lesser misdemeanors requires remand for resentencing”.
The basis of defendant’s contention is found in the following statement by the trial judge at sentencing:
"The Court: He’s got five convictions at the age of 23; as an adult, one for each year of his adulthood. He was charged with breaking and entering back in 1965 and was convicted of attempted larceny in a building and got two years probation. Ninety days in the Wayne County Jail for malicious destruction of property after being charged with attempted breaking and entering coin box. He was charged with possession of a stolen motor vehicle which carries a ten-year maximum penalty, if convicted, and was convicted of Unlawfully Taking and Having a Motor Vehicle and received two-years probation. He was convicted of Unlawful Use and Addiction to Narcotics and received six months in the House on that, being charged with Violation of the State Narcotic Law carries a ten-year maximum. And 1969, Fraudulent Use of a Credit Card and was convicted of obtaining money under false pretenses under the value of $100.00 and got 90 days in the Detroit House of Correction. Now, he is using a gun. How much education have you had, Mr. Pettis?”
Even if we assume, arguendo, that the felony arrests were considered by the trial court in imposing sentence, there is no indication that defendant disputed the accuracy of the arrest record. Thus, we view the following statement of this Court, in People v Hildabridle, 45 Mich App 93, 95; 206 NW2d 216, 217 (1973), as dispositive:
"Due process requires that a sentence not be based upon inaccurate information. When imposing sentence a judge may consider alleged criminal conduct which has not resulted in conviction. However, once a defendant has denied such allegations, the sentencing judge may consider such other criminal conduct only if presented with information establishing the validity of the other charges. People v Zachery Davis, 41 Mich App 683; 200 NW2d 779 (1972).”
In light of defendant’s failure to dispute the accuracy of the arrest information, the trial court was justified in assuming its validity.
Affirmed.
Fitzgerald, P. J., concurred.
Targonski, J., did not participate in the decision. | [
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V. J. Brennan, P. J.
Plaintiffs suit seeks the balance due on a contract to construct a residence for the defendants. Defendants claimed that plaintiff was not, at all necessary times, licensed as a residential builder as required by statute (MCLA 338.1501; MSA 18.86[101]); and that that fact bars plaintiffs suit (MCLA 338.1516; MSA 18.86[116]).
Defendants moved for summary judgment pursuant to GCR 1963, 117.2(3) arguing that there was no issue of fact regarding plaintiffs capacity to maintain his lawsuit. This motion was not supported by affidavits as required by GCR 1963, 117.3. The trial court granted defendants’ motion for summary judgment, and later denied plaintiffs motion to set aside that judgment.
Plaintiff appeals and argues that the failure of the defendants to support their motion for summary judgment with any affidavits as required by court rule, supra, is fatal and mandates a reversal of the judgment. The relevant rule provides as follows:
".3 Motion and Proceedings Thereon. [1] A motion based upon subrule 117.2(3) shall be supported by affidavits, and the opposing party prior to the day of hearing may serve opposing affidavits. [2] The affidavits submit ted by either party shall be governed by the provisions of subrules 116.4, 116.5, and 116.6. [3] Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing. [4] Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified. [5] Judgment shall be rendered forthwith if the pleadings show that any party is entitled to judgment as a matter of law or if the affidavits or other proof show that there is no genuine issue of fact. [6] If it appears that the opposing party rather than the moving party is entitled to judgment, the court may render summary judgment in his favor without necessity of a motion therefor.” GCR 1963, 117.3.
We have numbered each sentence of the rule for convenient reference throughout this opinion. After careful analysis, we have come to the conclusion that there are two distinct portions within this rule. The first portion of the rule, consisting of the first two sentences, sets forth the proper manner for making a motion for summary judgment founded on GCR 1963, 117.2(3). The latter portion of the rule, the third through the sixth sentences, defines the proper procedures to be followed subsequent to the making of a motion under that rule.
Such an interpretation is the most logical for several reasons. First, it renders the rule consistent rather than internally contradictory. If the language in the third and fifth sentences, which we read to authorize the judge to consider everything in the record in addition to the affidavits, were read to authorize resort to such other proofs in lieu of affidavits, it would clearly contradict the mandatory language of the first sentence.
Second, while some might regard such an interpretation as overly technical, there is a valid rationale behind an absolute requirement for the submission of affidavits. Requiring parties to present support for such a motion by affidavits based on personal knowledge (GCR 1963, 116.4) serves to clarify the position of the parties, and to facilitate disposition by the trial court and review of the trial court’s decision by the appellate courts. It is relatively easy to read and evaluate an affidavit; by comparison, it is difficult to sift and search through a lengthy deposition in .order to determine precisely what evidentiary support a party may be able to muster at trial. v
Third, we attach no significance to the use of the disjunctive in the fifth sentence of the rule (i.e., "affidavits or other proof’). Had the drafters of the rule phrased that sentence in the conjunctive (i.e., affidavits and other proof) the rule would then have been read to require such other proof in addition to the affidavits. Finally, this position finds support in our Supreme Court’s interpretation of the predecessor to GCR 1963, 117.3. In International Chemical Workers Union, Local 179, AFL-CIO v Swenor, 368 Mich 658, 661; 118 NW2d 839, 840 (1962), our Supreme Court, in discussing the predecessor to the current summary judgment rule, held as follows:
"The motion [for summary judgment], although it was purported to have been filed pursuant to Court Rule No 30 (1945), was not supported by affidavit as required by the rule.
"The pleadings do not warrant summary disposition as here attempted. Plaintiffs’ failure to comply with the requirements of our rule, designed to afford summary relief only in extraordinary circumstances, would be sufficient reason alone for denying their motion and compelling our reversal of its grant.”
The rule being construed by our Supreme Court in that case provided, in pertinent part, as follows:
"In any action at law, the defendant may, after issue is joined, move the court for entry of judgment in his favor upon a showing by affidavits or depositions filed in the cause that there is no question of fact to be determined by the court or jury, and that he is entitled to a judgment in his favor.” MCR 1945, Rule 30, § 7. (Emphasis added.)
It is obvious that our current rule is much more explicit in requiring a basis when summary judgment is sought on the ground that there is no issue as to any material fact. The language from our current rule ("shall be supported by affidavits”) is even more directory than the prior rule ("upon a showing by affidavits or depositions”). Nevertheless our Supreme Court found a failure to support such a motion for summary judgment by affidavit or deposition to be fatal; therefore, the current rule being phrased in stronger terms, such a defect is also fatal under the current rule.
We therefore conclude that the current rule, while permitting the court to base its judgment on everything in the record, nevertheless requires that the motion itself be accompanied with or supported by affidavits.
Reversed and remanded for further proceedings not inconsistent with this opinion.
T. M. Burns, J., concurred.
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O’Hara, J.
This is a winter slip and fall case, occurring on an ice- and snow-covered sidewalk in the City of Hancock. Plaintiff sued the municipality, the abutting property owner, and the lessee of the premises in front of which the fall took place.
The jury returned no cause verdicts for the municipality and the lessee of the premises and awarded damages of $11,000 against the owner of the building. Defendant-owner appeals of right.
The appeal is from the denial of a motion for judgment non obstante veredicto or, alternatively, for a new trial. In support of its position, appellant contends it was prejudicially erroneous for the trial court to receive as an exhibit a Hancock municipal ordinance which in general terms makes it unlawful for an abutting landowner to allow the sidewalk abutting his property to be in such state of disrepair that it "might be injurious in any way to the safety of all persons using said sidewalk”.
It was not error to admit a properly authenticated copy of the ordinance. Violation of a duly enrolled city ordinance is evidence of negligence. Blickley v Luce’s Estate, 148 Mich 233; 111 NW 752 (1907). It is manifestly impossible to determine whether a violation occurred if the ordinance is not part of the record. It would be a dangerous rule of law to hold otherwise. It is the responsibility of the trial judge to rule upon whether or not the ordinance is relevant to the issue in a given case. In our view while the ordinance does not extend to clearing a sidewalk, otherwise non-defective, of natural accumulations of ice and snow, it might bear on the issue of whether the claimed condition of the sidewalk both as to construction and maintenance caused or contributed to an unnatural or artificial accumulation. The court properly instructed the jury that if either the owner or occupant of the abutting premises "violated the ordinance”, such violation was evidence of negligence and that the question of proximate causality of the violation was theirs to decide.
Next, appellant claims error by reason of the admission of a lease between the abutting owner and the occupant. The lease obligated the owner of the premises, rather than the tenant, to keep the walks and ways of access clear of ice and snow. The effect of exculpatory lease provisions and nonexculpatory protective agreements which do not purport to exempt or limit a party’s liability for his own direct negligence but which amount to a contractual undertaking to assume a risk are the subject of extensive case law discussion and decisional holdings in this state.
The consensus holding seems to be that where a landlord or a tenant has, by virtue of a lease, assumed that degree of obligation with respect to the demised property as to indicate that control rests in him he will be held to answer for any breach of the duty to maintain the premises in a reasonably safe condition. Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399; 97 NW2d 90 (1959) and Siegel v Detroit City Ice & Fuel Co, 324 Mich 205; 36 NW2d 719 (1949). What the parties intended with respect to allocation of risks, is a question of law to be decided by the trial court if the language is unambiguous or not susceptible to conflicting interpretation. If it is not the instrument should be submitted to the trier of fact under proper instruction. Hull v Detroit Equipment Installation, Inc, 12 Mich App 532; 163 NW2d 271 (1968).
Here the trial court did not determine as a matter of law that the lease was unambiguous and hence, vested control of the premises in either or both of the defendants (excluding defendant City of Hancock). Neither did he charge the jury that control was a controverted question of fact and that the lease was admitted for the limited purpose of assisting the jury in its resolution of that issue. We can only conclude that the admission of the lease without any instruction as to its legal limitations as between plaintiff and the defendants was reversibly erroneous.
Next we discuss the admissibility of certain photographs as exhibits. Since the complaint does not pinpoint the acts or omissions which were claimed to constitute defendant’s negligence it is hard to assess the relevancy or materiality of the photographs. They may have been as inadmissible as were the photos introduced in the case of Kaminski v Wayne County Road Commissioners, 370 Mich 389; 121 NW2d 830 (1963). The admission of the photos in that case was the basis of the reversal of a jury verdict and the grant of a new trial. The Court held the pictures were not fairly representative of the conditions existing at the time of the accident. In the case at bar they could have had relevance to the unchallenged claim made in the opening statement that the negligence was in part faulty construction of the sidewalk, in part deterioration and failure to repair the walk, and in part the combination of the two foregoing elements as they affected the accumulation of ice and snow on the sidewalk. When the photographs were admitted into evidence over vigorous objections by all the defendants the trial judge instructed the jury that they could give the exhibits that weight to which they were entitled. Later the objection to the admission of three photographs of the place of the accident without ice and snow was ground number 7 for appellant’s motion for a new trial. Certainly the issue was preserved for review.
The generality of the pleadings, the pretrial summary, and the unchallenged specifications of negligence in the opening statement leave us no alternative but to find that the photos were rele vant, albeit tenuously so, to the issue of the combination of defective construction, inadequate maintenance, and a consequent unnatural or artificial accumulation of ice and snow.
Insofar as the ice and snow accumulation alone is concerned the controlling law has been settled in this state at the least since Betts v Carpenter, 239 Mich 260; 214 NW 96 (1927). The rule was ably restated by Judge John Gillis in this Court in Gillen v Martini, 31 Mich App 685; 188 NW2d 43 (1971). In simple substance it is this. Persons or corporations legally responsible for the maintenance of sidewalks in this state are liable for damages resulting from unnatural or artificial accumulation of ice or snow. They are not liable for mere natural accumulations. In almost every case whether the condition was due to a natural accumulation or an artificial or unnatural accumulation or condition is one of fact for the jury. Well aware of this established rule of law — a rule of reason also — we have read the testimony of plaintiff and the only other witness as to the condition of the walk the day of the unfortunate accident with extreme care and attention. The recurrent use by witnesses of the impersonal pronoun "it”, without clear indication of whether the "it” was the natural accumulation of the unnatural accumulation because of the claimed defective construction and maintenance, complicates our task on review. If this case were strictly a natural ice and snow accumulation issue's we would have no alternative but to reverse and exculpate defendant-appellant on this ground. Since the record in its entirety supports the claim that it was a combi nation of defective construction and maintenance resulting in a claimed unnatural accumulation we must leave that question to the jury.
We conclude that when the learned trial judge opted for admission of the photographs over the persistent objections of the defendants it was the court’s obligation to charge the jury with specificity as to their limitations as to the materiality and relevance. We hold their admission without such instruction was reversible error.
This leaves then the last and purely legal issue of what duty, if any, appellant owed to plaintiff. It is settled that a municipality cannot by ordinance render an abutter liable to a third party only for a natural accumulation of ice and snow. Again, we face the unchallenged "breech-bore” claim of plaintiff that it was appellant’s defective maintenance and the consequential artificial and unnatural accumulation or formation of the ice and snow covering that occasioned plaintiff’s damage.
We cannot frame issues. We can only decide them. We want our holding here to be clearly understood. The proofs created a jury submissible issue as to whether the accumulation of ice and snow was artificial and unnatural by reason of the neglect of the abutter to take reasonable steps to preclude it. Betts v Carpenter, supra, controls this issue.
However, because the fact issues in this case were insufficiently delineated before they were submitted to the jury and because of the lack of explanatory instruction as to the legal limitations upon the use of the photos and the lease we are obligated to reverse.
We vacate the judgment entered upon the ver diet of the jury and remand to the trial court for a new trial as to defendant-appellant 231 Corporation. Absent a cross-appeal by plaintiff as to the judgment of no cause as to the other two named defendants, or a specific appeal by this appellant of the no cause judgments as to its co-defendants in the trial court, we hold those judgments are res judicata as to the City of Hancock and Metropolitan Life Insurance Company. We remand for a new trial as to appellant 231 Corporation only. Costs to appellant 231 Corporation.
All concurred.
Siegel v Detroit City Ice & Fuel Co, 324 Mich 205; 36 NW2d 719 (1949).
Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399; 97 NW2d 90 (1959). See generally also Huey v Barton, 328 Mich 584; 44 NW2d 132 (1950).
For the historically minded it may be noted that the father of the author of this opinion lost that case in the Supreme Court. The author was in high school and not professionally involved in the litigation.
To use former Justice Eugene Black’s term. | [
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] |
Holbrook, P. J.
Ronald J. Bohm, defendant herein, was tried before a jury and found guilty of larceny in a building, contrary to MCLA 750.360; MSA 28.592. He was sentenced to prison for a term of from two to four years. A motion for a new trial and a petition for a writ of habeas corpus were denied by the trial court, and defendant now brings this appeal.
The complaining witness, Rosemarie Brooks, her sister, and her sister’s fiance, a Mr. Kamradd, arrived at the Playgrounds Bar at approximately 8:30-9 p.m. on New Year’s Eve. Miss Brooks had a silver-colored purse containing approximately $10 with her and placed it on her table. At a time when she was dancing, two witnesses testified that they saw the defendant come by the table, pick up the purse, and leave hurriedly through the front door. Miss Brooks said she saw the defendant as he exited from the bar. Several persons followed the defendant out the front door, but he was not seen again until one of those searching for him outside stated he saw the defendant walk past the front entrance and go to the rear entrance which he entered. Defendant was physically described by the witnesses and identified also by the way he walked and danced. He was also described as wearing a white shirt open at the neck without a jacket. When defendant came in the back entrance Mr. Kamradd and another person took charge of him until the police arrived. The other person and Mr. Kamradd forcibly seized the keys to defendant’s automobile from the defendant.
After questioning the witnesses, the police arrested the defendant and took him in custody. After being arrested the defendant was taken to the patrol car where he was patted down and given his Miranda warnings by Officer Marengo. While two other officers were searching for a Chevy II automobile, Officer Marengo requested of the defendant identification papers. The defendant responded by giving the officer his selective service card and registration to his Cadillac automobile. At that point in time defendant was removed from the patrol car and the officer testified: "we researched him and Officer Jenny left with a set of keys and the registration to the Cadillac”. Finding the Cadillac they approached it cautiously, Officer Bankard on the right side and Officer Jenny on the left side. Officer Jenny spotted a purse on the back floor space of this car. Officer Bankard confirmed the sighting by looking through the window and saw the purse partially sticking out of a rolled-up floor mat. The purse was retrieved by the two officers and returned to the complaining witness who identified it as her purse.
Defendant at that time and ever since has consistently denied he took the purse, that it must have been someone else. At the trial the defendant called Mr. Roy Sontag who testified that an individual by the name of John Crooks who was dressed similarly to defendant on the night in question and who was present in the bar had in fact taken the purse.
Defendant raises eight issues on appeal. We consider them in our order.
I
The claim of defendant that the prosecuting attorney was guilty of abuse of discretion in charging him with larceny in a building, MCLA 750.360; MSA 28.592, rather than with larceny, MCLA 750.356; MSA 28.588, is not tenable in that this Court in People v Jackson, 29 Mich App 654, 655-656; 185 NW2d 608, 609 (1971), ruled as follows:
"Defendant would be guilty under either of the larceny statutes. The Legislature has obviously decided that larceny in a building presents a social problem separate and apart from simple larceny and that all larcenies in a building, value being irrelevant, deserve felony status. See Black v Gladden, 237 Or 631; 393 P2d 190 (1964).
"The decision to charge the defendant with the felony instead of a misdemeanor is in the sound discretion of the prosecuting attorney. People v Lombardo, 301 Mich 451; 3 NW2d 839 (1942); People v Birmingham, 13 Mich App 402; 164 NW2d 561 (1968); People v Eineder, 16 Mich App 270; 167 NW2d 893 (1969).”
II
The claim of defendant that the complaint, warrant, municipal court’s return to the circuit court, and the information were inaccurate and misleading so that he was unable to formulate a defense, is likewise untenable. People v Jackson, supra, p 656; 185 NW2d at 609, reads as follows:
"Defendant’s arguments that the felony-larceny statute is vague and uncertain and that he was denied equal protection of the laws are without merit. It is clearly within the discretion of the Legislature to distinguish simple larceny and larceny in a building as separate social evils.”
Also see People v Husted, 52 Mich 624; 18 NW 388 (1884). The charge stated that the larceny took place in a "bar” which is obviously a building.
Defendant further claims that the complainant did not have personal knowledge of the facts she asserted in her complaint and that, therefore, the testimony of other witnesses should have been furnished the municipal judge before the issuance of the warrant. We rule that in cases such as this one where defendant was arrested without a warrant, the legality of a defendant’s arrest cannot be considered at trial. People v Miller, 235 Mich 340; 209 NW 81 (1926); People v Henry Robinson, 37 Mich App 115; 194 NW2d 537 (1971), and People v Nawrocki, 6 Mich App 46; 148 NW2d 211 (1967). Defendant raised this issue for the first time in his motion for a new trial. Further, we rule that where a defendant fails to object to the validity of the arrest warrant or the complaint upon which it is based at the arraignment when the trial court obtains jurisdiction of him by the filing of an information by the prosecuting attorney and defendant pleads thereto, that he cannot thereafter object to either the complaint or the warrant. People v Licavoli, 256 Mich 229; 239 NW 292 (1931); United States ex rel Penachio v Kropp, 448 F2d 110, 111 (CA 6, 1971).
Ill
Defendant asserts that his sentence to prison of from two to four years constitutes cruel and unusual punishment.
This issue is ruled by People v Jackson, supra, which involved a defendant convicted of the same crime as the defendant herein and received the same sentence. In Jackson the Court held thát the sentence was not such as to shock the conscience of the Court and was therefore not cruel and unusual. Also see People v Sinclair, 387 Mich 91; 194 NW2d 878 (1972).
IV
It is defendant’s claim that his right to a speedy trial was abridged when he was not provided transcripts within the time period set out by GCR 1963, 812.3(1).
The defendant’s position on this issue is without merit. In People v Gorka, 381 Mich 515, 520; 164 NW2d 30, 32 (1969), it is stated:
"Nevertheless, the defendant has had a full review of his case in this Court. The circuitous appellate route in this case, caused in part by the dilatoriness and violations of court rule by the court reporter and counsel, has not diminished the right of appeal. He has received from this Court the same appellate review he would have received from the Court of Appeals under an appeal of right. The fact that defendant, on his appellate route, encountered numerous procedural detours, some of his own making, does not compel this Court to grant him a new trial.”
V
The defendant claims that his constitutional rights of due process and equal protection were violated when he was held for three days after arrest before his arraignment.
The facts are that the defendant was arrested at approximately 11 p.m., on Friday, December 31, 1971, and held at the police station until Saturday, January 1, 1972, New Year’s Day. At approximately 7:35 p.m. the defendant was transferred to the Macomb County jail. On Monday morning, January 3, 1972, the first legal day after the arrest, he was arraigned. MCLA 764.13; MSA 28.871(1), provides:
"A peace officer who has arrested a person for a felony offense 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.”
Under the circumstances in this case was the delay so prejudicial as to require a reversal under the ruling in the case of People v Hamilton, 359 Mich 410; 102 NW2d 738 (1960)?
In the recent case of People v Farmer, 380 Mich 198, 205-206; 156 NW2d 504, 507 (1968), the applicable test to apply to this issue is stated as follows:
"It is maintained that the detention of defendant for three days — 72 hours — from the morning of January 11, 1958, to the morning of January 14, 1958, before arraignment was such a lengthy detention as to render the confession involuntary. While this Court has repeatedly condemned the practice of undue detention, the test as to whether such a detention renders a confession involuntary is not the reasonableness of the length of time a person is detained but whether the detention has been used to coerce a confession. As was said in United States v Mitchell, 322 US 65, 70; 64 S Ct 896, 898; 88 L Ed 1140, 1143 (1943):
" 'There was no disclosure induced by illegal detention.’
"The duty to arraign and the nature of an improper delay hás been stated by the United States Supreme Court in Mallory v United States, 354 US 449, 455; 77 S Ct 1356, 1359-1360; 1 L Ed 2d 1479, 1483 (1957), as follows:
" '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.’ (Emphasis supplied.)”
In passing on this particular issue the trial judge noted no such confessional impropriety and found no error in the arraignment procedure. Also see People v Dawson, 29 Mich App 488; 185 NW2d 581 (1971). We rule that no prejudicial error occurred as to this issue.
VI
Defendant claims that the trial judge gave instructions which were erroneous, prejudicial, and procedurally improper, and that no opportunity to object to the instructions was afforded the defendant.
First, defendant asserts it was error for the court to fail to give the customary instruction to the jury concerning the defendant’s failure to take the witness stand.
Defendant did not request the court to give the instruction nor did he object to its omission in the instructions. It is the choice of the defendant as to whether the instruction in question be given. People v Abernathy, 29 Mich App 558, 561; 185 NW2d 634, 636 (1971); People v Moore, 39 Mich App 329; 197 NW2d 533 (1972). It is noted that although the record does not show that defendant’s counsel was asked if he had any objections to the instructions or additional instructions, the record is clear that he made no objections. The record also discloses that counsel was given every opportunity throughout the trial to be heard and was never refused to be heard. We are convinced that had defendant’s counsel voiced any objections to the instructions the trial judge would have been receptive to hearing them. There being no request for the instruction or objection to its omission, we rule no error resulted.
Next defendant claims that the instructions violated his constitutional rights when the trial judge gave the following comment: "But the defense, they don’t deny that somebody stole this purse. They don’t deny it but they say it was not this man and they say the prosecution has not given sufficient evidence.” It is claimed that through this statement the defendant’s right to remain silent was abridged because it is representative of a testimonial conclusion of the defendant himself who did not take the stand. We do not agree. The comment was not violative of defendant’s Fifth Amendment rights. The court was not referring to anything said by the defendant, but rather was recapitulating defendant’s counsel’s theory of the case. People v Laine, 31 Mich App 271, 272; 187 NW2d 505, 506 (1971). The following excerpt is from defense counsel’s opening statement:
"I am going to make a brief opening statement to you now for the simple reason that we intend to interpose a defense in this cause that there is mistaken identity and we will produce a witness who will tell you under oath that there was somebody else who committed this crime.”
In his closing argument he stated:
"We say that John Crooks, who was a real person even though the bartenders can’t identify him, but they couldn’t identify a lot of people in their bar. He’s a real person and he’s the one who committed this larceny, not the defendant, and we’ll ask you to find the defendant not guilty.”
These excerpts clearly indicate that the trial court’s comment was in accord with defendant’s trial strategy and theory of defense.
Defendant asserts that the charge was improper because it did not fully state the applicable law and because the issue was too narrowly defined by the court. The trial court’s reference to larceny did not include the statement "in a building”. The trial judge read the information wherein larceny in a building was charged. Also the theory of defendant’s defense did not contest the fact that the crime had been committed, but only that the defendant was not the person that did it. The sole controversy in the case was over who committed the crime charged. Absent a request to charge or objection to the charge, we rule it was not reversible error to charge the jury in accord with the defendant’s theory of defense. People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972); People v Griffen, 36 Mich App 368; 194 NW2d 104 (1971). Also see People v Wilbourne, 44 Mich App 376, 378; 205 NW2d 250, 252 (1973); People v Cardenas, 21 Mich App 636; 176 NW2d 447 (1970).
Other claimed errors in the instructions asserted by the defendant have been properly considered and we find that the jury charge when considered as a whole discloses no reversible error present. People v Pigues, 33 Mich App 349; 189 NW2d 715 (1971).
VII
The defendant claims that the search of his person conducted after he had been arrested, patted down, and placed in a . police car was unreasonable.
In the case of People v McDonald, 13 Mich App 226, 232-233; 163 NW2d 796, 799-800 (1968), it is stated in part:
"The Constitutions do not prohibit all warrantless searches. Where a warrant has not been obtained, the validity of the search depends upon the law’s appraisal of the reasonableness of the search, only unreasonable warrantless searches and seizures being barred. Searches, incident to a lawful arrest, or following hot pursuit for instruments used in the commission of crime, its fruits, contraband and means of escape, have been held to be reasonable.”
The objection here noted pertains to the search resulting in the finding of the 1962 Cadillac keys on defendant’s person. It also pertains to the alleged unlawful search of the 1962 Cadillac and seizure of the silver purse.
Defendant did not make a motion to suppress the purse prior to trial. However, when defendant objected to the admission of the purse into evidence, the trial court did receive testimony outside the presence of the jury touching the legality of the search of the defendant and the admissibility of the purse. The pertinent facts pertaining to the issue show that after being arrested the defendant was patted down for weapons and none were found. He was then asked to furnish an identification and defendant produced a registration to the 1962 Cadillac and a selective service card. At that time the officers made a thorough search of the defendant and found the keys to the Cadillac automobile. Officers Jenny and Bankard with the keys and the registration for the Cadillac automobile found the Cadillac in the parking lot in front of the bar. They observed through the back window the partially exposed silver purse on the back floor of the car. They then seized the purse and took it to the complaining witness who identified it as hers.
The defendant asserts that the search of the defendant after he had been once patted down for weapons was improper and an unlawful search of his person. A thorough search of a defendant after a cursory search was upheld in the case of People v Arnold, 23 Mich App 517, 520; 179 NW2d 45, 46 (1970). The facts in Arnold were very similar to the facts in the instant case as they appear in the opinion:
"While defendant was lying on the ground, the officers conducted a cursory search for obvious weapons. Upon finding none, all three returned to the police car where a further search was made. This search of the defendant’s person revealed a packet of marijuana. He was arrested and charged with the possession of narcotics, a violation of MCLA 335.153; MSA 18.1123.”
This so-called second search was a thorough one and was made contemporaneously with the lawful arrest of the defendant and in search of possible weapons not discovered by the first patting down of the defendant and to discover the fruits of the crime, possible means of escape, and to prevent the destruction of the evidence of the crime.
Under the facts herein stated, we agree with the ruling of the trial court that the officers had reasonable cause to believe that a felony had been committed and that the defendant was the person who had committed it. MCLA 764.15; MSA 28.874. We rule that the thorough search of the defendant was proper.
At this point in time the officers had the registration and keys for the 1962 Cadillac. The Cadillac was still in the public parking lot at the bar where it had been parked' and comparatively close to where defendant had been arrested. The silver purse in question was observed in open view by looking through one of the rear windows of the automobile.
It was stated in the case of People v Tisi, 384 Mich 214, 218; 180 NW2d 801, 803 (1970), in part as follows:
"Defendant asserts that the search of his automobile and the seizure of the knife and sheath were beyond the permissible scope of a search incident to an arrest. Preston v United States, 376 US 364; 84 S Ct 881; 11 L Ed 2d 777 (1964); Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969). Preston and Chimel are not in point. Justification for the seizure in this case is not to be tested by the reasonableness of its relationship to a prior valid arrest. People v Kuntze, 371 Mich 419; 124 NW2d 269 (1963).
"In the recent case of Harris v United States, 390 US 234, 236; 88 S Ct 992, 993; 19 L Ed 2d 1067, 1069 (1968), the Court said:
" 'It has long been settled that objects falling in the plain view of an oflicer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.’ ”
Also see People v Jenkins, 23 Mich App 39; 178 NW2d 103 (1970).
The open view rule is applicable to the facts in the instant case and we agree with the trial court’s ruling that the silver purse was admissible, it having been seen in plain view by the officers from a place they had a lawful right to be.
It has also been determined that a search of an automobile is proper where the officers conducting the search have reasonable or probable cause to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search. This rule was stated in the case of People v Danny Williams, 383 Mich 549, 555; 177 NW2d 151, 154 (1970):
"In Dyke v Taylor Implement Mfg Co, Inc, 391 US 216, 221; 88 S Ct 1472, 1475; 20 L Ed 2d 538, 543 (1968), the United States Supreme Court, after reviewing Preston v United States, 376 US 364; 84 S Ct 881; 11 L Ed 2d 777 (1964) and Cooper v California, 386 US 58; 87 S Ct 788; 17 L Ed 2d 730 (1967), stated:
"'Automobiles; because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. Brinegar v United States, 338 US 160; 69 S Ct 1302; 93 L Ed 1879 (1949); Carroll v United States, 267 US 132; 45 S Ct 280; 69 L Ed 543; 39 ALR 790 (1925). The cases so holding have, however, always insisted that the officers conducting the search have "reasonable or probable cause” to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.’ (Emphasis added.)”
The facts herein clearly show that the seizure of the silver purse was justified under either the plain view doctrine or the search and seizure doctrine where the officers conducting the warrantless search had reasonable or probable cause to believe that the instrumentality of a crime or evidence pertaining to a crime would be found before beginning the search. We find no reversible error present as to this issue.
VIII
Defendant claims he was denied the right to effective counsel.
There is no question but that defendant is correct in his claims that he was entitled to the effective assistance of counsel. York v McLeod, 283 P2d 567 (Okla Crim App, 1955), cert den, 350 US 839; 76 S Ct 78; 100 L Ed 749 (1955). Many of the cases reaching this Court contain the claimed error that trial counsel was ineffective and seek a new trial for that reason. We acknowledge that there is rarely a case where a different attorney after carefully reviewing the trial transcript will agree with all the trial tactics, actions, or nonactions of trial counsel at the trial. Of course, we do not have any appeals except where a defendant has been convicted. The rule that a defendant is entitled to effective assistance of counsel does not mean that the defendant is entitled to the effective assistance of counsel to the degree that he is assured of a successful defense and acquittal. This Court in the case of People v Lawrence, 32 Mich App 591, 593-594; 189 NW2d 48, 50 (1971), interpreted the rule enunciated in People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969), as follows:
“From the time this Court enunciated the so-called ’Degraffenreid rule’, it has become one of the most frequently cited and most misunderstood of our decisions. Degraffenreid should not be read by the bar to mean that because an objection could have been made or that some right was waived that this necessarily indicates incompetence of counsel or prejudice to the defendant. As the ones to whom the conduct of the trial and the choice of strategy have been entrusted, trial counsel may reasonably believe it advantageous, at times, to forego exercising certain rights for tactical reasons. On appeal it behooves us not to play the part of the Sunday morning quarterback and to second-guess him.
"Usually omitted from appellants’ quotations of Degraffenreid is the limiting and cautionary language that is often repeated in the opinion.
" 'Most post-conviction claims of disgruntled clients are indeed insubstantial.’ Degraffenreid, supra [p 711; 173 NW2d at 321],
"We would not be understood by what we have said here to dilute the Degraffenreid doctrine. We mean rather that it should be carefully read before reversible error is claimed on the grounds of the incompetence of counsel. Such incompetence must be grave indeed to be raised to the constitutional level of no assistance of counsel.”
After a careful review of the entire record, it cannot be said that defendant did not have the effective assistance of counsel.
Affirmed.
All concurred.
The complaint, warrant, and information filed against defendant were in the following language in part:
"that heretofore, to wit: on or about the 31st day of December A. D. 1971 at the City of St. Clair Shores and in the county aforesaid [Macomb] One Ronald Joseph Bohm did commit the crime of larceny in a bar, to-wit: Playgrounds Bar located at 32307 Harper Avenue, St. Clair Shores, Michigan, by then and there feloniously stealing, taking and carrying away certain personal property, goods and chattels, to-wit: purse and contents the property of Rosemarie Brooks from the possession of the said Rosemarie Brooks, then and therein being found contrary to MCLA 750.360; MSA 28.592.”
The officers in the present case had reasonable cause to believe that the fruits of the crime, the silver purse, would be found in the 1962 Cadillac automobile. | [
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Bashara, J.
This appeal arises from a summary judgment finding that the appellant was obligated to defend appellee, Lucy Karickhoff, in an action in the Common Pleas Court for the City of Detroit.
It is worthy to note, at the outset, that only the appellant has filed a brief to assist this Court in its deliberations. The following facts are therefore adduced from the pleadings and settled record, as well as appellant’s brief.
Theodore and Bernice Karickhoff applied for auto insurance in February of 1969, indicating that only two adult persons would be driving their 1965 Pontiac automobile. The policy was changed and an additional rate was charged to include a youthful driver as an occasional driver of the automobile. There appear to be no endorsements or changes in the policy including Lucy Karickhoff as a named assured.
Relevant clauses from the policy of insurance frame the issue upon which this case must be decided:
"I. Coverage A-Bodily Injury Liability; Coverage B-Property Damage Liability.
"To pay on behalf of the assured all sums which the assured shall become legally obligated to pay as damages because of:
"A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,’ sustained by any person;
"B. injury to or destruction of property, including the loss of use thereof, hereinafter called 'property damage’; caused by accident and arising out of ownership, maintenance or use of the automobile, and the Company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim as it deems expedient.
* * *
"HI. Definition of Assured.
"(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word "assured” includes the Named Assured and, if the Named Assured is an individual, his spouse if a resident of the same household, and also includes any persons while operating the automobile and any person or organization legally responsible for the use thereof, provided the use and actual operation of the automobile are by the Named Assured or such spouse or with the permission of either, and provided further that such use and actual operation are within the scope of such permission.”
The insurance policy also contained the following provisions:
"V. Use of other Automobiles.
"If the Named Assured is an individual or husband and wife and if during the policy period such Named Assured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverages A, B and C-l with respect to said automobile applies with respect to any other automobile, subject to the following provisions:
"(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'assured’ includes:
"(1) such Named Assured and spouse, and
"(2) any other person or organization legally responsible for the use by such Named Assured or spouse of an automobile not owned by or hired by such other person or organization. Insuring Agreement III does not apply to this insurance.”
Appellee Karickhoff was involved in an automobile accident in November of 1969 while driving a 1965 Chevrolet automobile owned by one Carl Young. That auto was uninsured at the time of the accident. A suit was subsequently commenced in the common pleas court against appellee Lucy Karickhoff and Mr. Young alleging damages arising from the accident.
Appellant refused to defend claiming that there was no coverage for appellee Lucy Karickhoff while driving an automobile other than the automobile described in the insurance policy. Appellee Karickhoff then instituted arbitration proceedings with the American Arbitration Association. Appellant filed this suit seeking to enjoin the arbitration proceedings. The trial judge agreed with appellant. that arbitration proceedings were not proper. He ruled, on appellee KarickhofFs counterclaim, that an exclusionary clause existed as to appellee Karickhoff; and thát an insurer must make clear to the premium payer the extent of the exclusion.
The clear issues for determination are whether the trial court erred in determining that appellee Lucy Karickhoff was insured under the policy of insurance issued to her parents while she was operating an automobile owned by a third person, and whether an exclusionary clause existed.
Generally insurance contracts are interpreted as a whole, giving to the words used therein their commonly understood meaning. Sloan v Phoenix of Hartford Insurance Co, 46 Mich App 46; 207 NW2d 434 (1973). Any reasonable doubts or ambiguities will be construed most favorably to the insured, particularly where the insurance contract is drawn by the insurer. Sloan v Phoenix of Hartford Insurance Co, supra; Gorham v Peerless Life Insurance Co, 368 Mich 335; 118 NW2d 306 (1962).
However, for a doubt or ambiguity to exist, there must be some language in the policy to create the doubt. Paragraph V clearly indicates that the coverage for liability arising from the use of another automobile is limited to "such named assured and spouse”. The obligation to defend any other party is limited, under clauses III and I, to anyone driving the insured auto with the permission of the owners.
The learned trial judge relies on the proposition that an exclusionary clause existed and should have been made clear to the insured. We find, however, that no such exclusionary clause existed within the terms of the policy.
In Topolewski v Detroit Automobile Inter-Insurance Exchange, 6 Mich App 286, 289-290; 148 NW2d 906, 907 (1967), this Court reviewed the plaintiff’s claim of an alleged ambiguity regarding uninsured motorist’s coverage. The Court there stated: '
"The fallacy of plaintiffs’ position is readily apparent. By asserting ambiguity, they contend a question of fact arises as to the meaning of 'uninsured automobile’ and the intention of the parties to the insurance contract with respect to that term. Mere assertion of ambiguity does not establish ambiguity; it arises, if at all, from the language claimed to be ambiguous. Vigil v Badger Mutual Insurance Company, 363 Mich 380; 109 NW2d 793 (1961). Absent ambiguity, the rights of the parties rest on the contract as written. Cottrill v Michigan Hospital Service, 359 Mich 472; 102 NW2d 179 (1960).
* * *
"We cannot rewrite the clear agreement of the parties under the guise of interpretation. Patek v Aetna Life Insurance Company, 362 Mich 292; 106 NW2d 828 (1961).”
We therefore hold that where an insurance clause extending coverage for the operation of other automobiles is by its clear language available only to the named insured or his spouse, no such coverage extends to other members of the family unless specified in the policy.
This view finds support in other jurisdictions which have considered the question. See Robinson v Georgia Casualty and Surety Co, 235 SC 178, 110 SE2d 255 (1959); Osborne v Security Insurance Co, 155 Cal App 2d 201; 318 P2d 94 (1957); Hennessy v Vanderhoef, 1 Wash App 257, 461 P2d 581 (1969).
For this Court to hold otherwise, it would be necessary to reform the insurance contract to add language not present in the policy. To, in effect, prepare a new contract between the parties is not within the province of the Court. Topolewski v Detroit Automobile Inter-Insurance Exchange, supra.
Reversed.
All concurred. | [
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McGregor, J.
On or about June 30, 1971, plaintiff Bradford Smith fell off the gangplank of an excursion boat, the "Island Queen”, while attempting to board the vessel. The ship is operated by defendant in connection with its operation of Kensington Metropolitan Park. Although admission to the park is free, defendant charged adults 50 cents and children 25 cents to ride the boat. Plaintiff had paid for the ride at the time of his injury.
Plaintiff and his wife filed their • complaint on October 13, 1971, alleging negligence oh the part of defendant resulting in injury to plaintiff and loss of consortium to his wife.
In reply, defendant filed a motion for accelerated and summary judgment, asserting that it was shielded from tort liability by governmental immunity under MCLA 691.1407; MSA 3.996(107). Fur ther, defendant asserted that, although it charged a nominal fee for these excursion rides, the operation of the sight-seeing boat was a non-proprietary function which did not alter its governmental immunity. In support of this motion, defendant filed an affidavit of the acting controller for the Huron-Clinton Metropolitan Authority, which established that the "Island Queen” had not earned a profit since the fiscal year 1966, and that the charges assessed for riding the boat were designed to afford the defendant some control over passengers and to help defray the operating costs. The acting controller further swore that yearly operating losses are covered by tax revenue received by defendant.
Having found that defendant’s operation of the excursion boat was a governmental function, the trial court granted defendant’s motion and plaintiffs appeal that decision.
The sole issue to be decided is whether the operation of the excursion boat was a governmental, rather than a proprietary, function.
Both parties concede that defendant is a state agency. See MCLA 119.51; MSA 5.2148(1) and Huron-Clinton Metropolitan Authority v Boards of Supervisors of Five Counties, 300 Mich 1; 1 NW2d 430 (1942). It is also clear that under Michigan statutory and decisional law a state agency is immune from tort liability while engaged in a governmental, as opposed to a proprietary, function. See Daszkiewicz v Detroit Board of Education, 301 Mich 212; 3 NW2d 71 (1942); Manion v State Highway Commissioner, 303 Mich 1; 5 NW2d 527 (1942); Mead v Michigan Public Service Commission, 303 Mich 168; 5 NW2d 740 (1942); Richards v Birmingham School Dist, 348 Mich 490; 83 NW2d 643 (1957); Cody v Southfield-Lathrup School Dist, 25 Mich App 33; 181 NW2d 81 (1970); Bofysil v Department of State Highways, 44 Mich App 118; 205 NW2d 222 (1972); MCLA 691.1407, MSA 3.996(107).
In determining whether a function is governmental or proprietary, we must direct our attention to MCLA 691.1413; MSA 3.996(113), which reads:
"The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as herein defined. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary proñt for the state, excluding, however, any activity normally supported by taxes or fees. No action shall be brought against the state for injury or property damage arising out of the operation of proprietary function, except for injury or loss suffered on or after July 1, 1965.” (Emphasis added.)
In light of the statutory definition emphasized above, we need no longer search in hopeless confusion for some elusive formula to solve the governmental-proprietary-function riddle. The Legislature has provided the test and our only duty is to apply it, irrespective of our views as to its wisdom.
The problem, so refined, is whether defendant operated the "Island Queen” "primarily for the purpose of producing a pecuniary profit for the .state”. Considering the undisputed fact that the boat was operated during the four years immediately prior to plaintiffs injuries at a deficit, the only possible conclusion is that it was not for the purpose of profit. Although a net loss resulting from the operations in one fiscal year might not warrant a finding that the profit motive is absent, such losses in four consecutive years certainly indicate the absence of such a motive.
Considering both the statutory definition and the four-year deficit, it was not reversible error for the trial court to conclude that defendant’s operation of the "Island Queen” was a governmental function, immune from tort liability under MCLA 691.1407; MSA 3.996(107).
Affirmed.
Van Valkenburg, J., concurred. | [
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Fitzgerald, P. J.
The Great A & P Tea Company, Inc, appeals from an opinion and order of the Workmen’s Compensation Appeal Board which affirmed a referee’s award of compensation benefits to plaintiff for permanent and total disability caused by incurable insanity pursuant to § 10(b)(6) of the former act, MCLA 412.10(b)(6); MSA 17.160(b)(6).
Plaintiff was born March 15, 1917. He left school about the tenth grade and in 1936 began working as a plumber’s assistant under the guidance of a Mr. Kaufman, a Detroit plumber.
Plaintiff worked happily for Mr. Kaufman as a plumber journeyman for about 24 years, except for a hitch in the Army during World War II.
In 1960, Mr. Kaufman died and the business was discontinued. Plaintiff went to work for the Great A & P Tea Company, Inc., and worked for 2-1/2 years in salvage. He was then transferred to a railroad car unloading job at the company’s warehouse. About two weeks later, on March 28, 1963, plaintiff injured himself when he fell from a ramp which was placed between the loading dock and a railroad car. The ramp slipped off the railroad car and plaintiff fell about three feet to concrete pavement. The ramp fell on his back. Plaintiff lost about two weeks of work, returned for one day and for one hour on a second day and then quit because of inability to work or was fired for allegedly drinking on the job.
The company voluntarily paid compensation benefits of $36 per week for 154 weeks from March 29, 1963 to March 12, 1966.
On September 10, 1965, plaintiff filed an application for hearing which alleged permanent and total disability from psychiatric disorders. Plaintiff claimed that the accident and the resulting pain to his back and shoulders caused nervousness and anxiety to such an extent that he was unable to return to gainful employment.
Following hearing, the referee awarded compensation benefits for permanent and total disability, finding:
"We are convinced from the record that the episode of March 28, 1963, constituted the trigger which set in motion an active psychotic process, with depressive components, which has since disabled plaintiff from return to common labor. Any underlying problems which he may have previously had and had been able to master were translated into active disability by the traumatic incident. We are also satisfied that the increase in his drinking to the point of acute alcoholism at times after the injury is likewise related.
"His psychotic condition equates with insanity.”
On appeal, the appeal board affirmed, quoting in an opinion the referee’s opinion in its entirety and adding:
"The referee’s opinion coincides with the record in this cause. Plaintiff’s condition meets the definition of incurable insanity as detailed in the Court of Appeals’ opinion in the case of Raymond Sprute v Herlihy Mid-Continent Co, Bituminous Casualty Co, and Second Injury Fund, 32 Mich App 574; 189 NW2d 89 (1971).
"There is no question that plaintiff’s mental condition was tuned by many factors not related to plaintiff’s employment; it is clear that his mental illness was affected and worsened by the injury he sustained while at work loading trucks on March 28, 1963. Plaintiff’s work record of one day and one hour two weeks after injury and none since is persuasive.”
Other factors important to an understanding of this case include the fact that plaintiff married for the first time on October 7, 1960 to a woman he had known and dated for some ten years. Except for his time in the army, plaintiff lived all of his life with his mother in his mother’s house and continued to live there with his mother and. his wife after his marriage.
Following the injury, plaintiff began drinking and was hospitalized on a number of occasions for problems relating to his drinking and emotional difficulties. His hospitalization for those problems included a 75-day commitment to the Northville State Hospital by probate court order in 1965.
While the appeal to the appeal board was pending, plaintiff died and his wife, the administratrix of his estate, was substituted as party plaintiff.
On appeal, The Great A & P Tea Company does not directly oppose the board’s finding that plaintiff was incurably insane, but contends that the incapacity did not result from an injury arising out of and in the course of plaintiffs employment.
The gist of the problem on appeal is contained in the testimony of the two psychiatrists presented by the parties.
Dr. Richard Komisaruk testified on plaintiffs behalf. Dr. Komisaruk’s diagnosis of plaintiff was that he had a "severe depressive illness, probably psychotic with hypochondriasis and possible alcoholism”. He described plaintiffs mental problem as follows:
"The main complaints that this patient has at present are largely psychological in nature. He complains of being 'weak as a cat.’ His back has been persistently sore and uncomfortable; this pain is relieved only partially when his mother rubs his back with alcohol. He also complains of marked anxiety and 'nervousness’, as well as severe insomnia to the extent that he is able to sleep only three to four hours per night. In addition, there has been a loss of libido. Mr. Pastaleniec expresses concern that his wife, whom he married late in life, will lose interest in him because of his inability to attend to her sexual needs. Generally, Mr. Pastaleniec presents as a very dependent, depressed person. His self-esteem is at a remarkable low. * * * At several points during the interview he was close to tears, particularly when he spoke of his father whom he revered very highly * * * and his late employer, a Mr. Jack W. Kaufman for whom he had worked as a plumber for 25 years. Since Mr. Kaufman died, Mr. Pastaleniec has been unable to work as a plumber and, in fact, took on the work of a loader for the A & P Company as if in a ritual of self-abnegation. This apparent retrogression and the type of employment that Mr. Pastaleniec sought is characteristic of his personality conflicts.
"Further exploration of the psychologicaLhistory indicates that Mr. Pastaleniec has functioned as an obsessive-compulsive character for many years. His standards of ethics are very high to the point of rigidity. His choice of employment as a plumber has psychodynamic implications as to the level of psychosexual development at which the neurotic fixations occurred. There is a history of strong attachment to both parents as well as the employer and the latter’s wife. * * * Mr. Pastaleniec has been unable to differentiate himself from his family. However, the feelings which bind him to the family and its surrogates are highly ambivalent. Consequently, when he went into mourning for his employer [Kaufman] the kind of pathologic picture which we now see began to develop. In short, Mr. Pastaleniec is an obsessive-compulsive character whose defenses failed at a critical point in his life as a result of which a severe neurotic depression has developed.”
Dr. Komisaruk related plaintiffs condition to his employment in the following words:
"Under the circumstances, this man would have been a 'sitting duck’ for the kind of injury which he sustained. It was almost as if he had an unconscious need to be injured, as if this would help to absolve his enormous guilt. The psychological need to be injured could also serve to impede the healing process and to complicate the physical manifestations of the injury with the various psychiatric complaints with which Mr. Pastaleniec is ridden.
"As to the relationship of the injury to the present problems, my impression is that the injury created a focus for the already existent depression. I am inclined to think that the depression would have become more manifest regardless of the injury, but that the specific back complaints which form a large part of the overall picture might well not have arisen were it not for the accident. I further feel that the slow healing of the injury is associated with the psychological problems and is compatible with the kind of personality constellation which we see in Mr. Pastaleniec.”
Defendant’s psychiatrist Gordon R. Forrer agreed with Dr. Komisaruk’s diagnosis on a num ber of points. He agreed that plaintiff manifested a borderline psychotic reaction and that plaintiff had a passive-dependent personality. Dr. Forrer also noted that plaintiff considered his former employer, Mr. Kaufman, a surrogate father and Kaufman’s death was a blow to plaintiff’s already unstable psychic state. Both doctors agreed that plaintiff was not malingering; that he manifested no conscious effort to deceive.
However, Dr. Forrer did not think that plaintiff’s condition was related to his fall and injury on the job. He testified:
"The fall and injury, for which no physical basis for his complaints can apparently be found, serves to legitimatize the patient’s claim of incapacity. * * * In my opinion the injury was of no significant consequence in producing the borderline psychotic reaction which this man displays.
"Now, in my opinion it is not possible to conceive of such a twisted attitude [of plaintiff] being caused by, augmented or formed from a fall.
"I think that there is an understandable retrospective falsification in this matter and that the event of the fall serves as an honorable excuse for his sexual inadequacy.
"I find no evidence of psychological impairment that can in any way or degree be placed in a cause and effect relationship to the accident.”
The finding of a causal connection between a work-related injury and mental or emotional disability is a question of fact for the Workmen’s Compensation Department. Carter v General Motors Corp, 361 Mich 577; 106 NW2d 105 (1960). Findings of fact made by the appeal board are conclusive in the absence of fraud. Const 1963, art 6, § 28; MCLA 418.861; MSA 17.237(861). There is evidence in this record to support the appeal board’s finding that plaintiff was permanently and totally disabled because of incurable insanity. The record is best characterized in that respect in the opinion of the referee:
"The fact is that, accepting these and other clues pointing to the existence of a personality pattern which does not equate with a psychiatrist’s definition of the norm, plaintiff nevertheless presented a record prior to his injury of steady and conscientious work habits not only as a plumber but as a salvage worker in the employment of the defendant for over 2 years immediately preceding his injury. Although there is indication, from a diagnosis of minimal cirrhosis of the liver reached in his first hospitalization approximately a month after his injury of March 28, 1963, that he was a heavy drinker, there is no evidence to the effect that his drinking habits interfered with his work function.
"Subsequent to his injury, on the other hand, we find a man who has had a number of acute alcoholic episodes which required hospitalization and continued inability to function because of complaints of back discomfort and nervousness which are accepted by both psychiatrists as sincere and free from suspicion of any component of malingering.
"We are convinced from the record that the episode of March 28, 1963, constituted the trigger which set in motion an active psychotic process,' with depressive components, which has since disabled plaintiff from returning to common labor. Any underlying problems which he may have previously had and had been able to master were translated into active disability by the traumatic incident.”
All of the parties agree that the plaintiff was, in fact, a conscientious worker up until he was injured. All the parties agree that the appellee’s physical injury did have some effect upon the emotional mental stability of the plaintiff. The only point at which the parties disagree and the testimony conflicts is in estimating the degree of relationship between the already existent emotional and mental disorders and the physical injury.
However, the referee and the appeal board resolved this conflict in favor of the plaintiff, and there is substantial evidence to support this finding of causation.
In regard to the standard review in workmen’s compensation cases in relation to findings of fact, it has been held:
"This Court may not set aside findings of fact of the Workmen’s Compensation Appeal Board if those findings are supported by any evidence on the record.” Hayes v Revere Copper and Brass, Inc, 43 Mich App 685, 686; 204 NW2d 695, 696 (1972).
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.”
See, also, MCLA 418.861; MSA 17.237(861) which also provides for the conclusiveness of findings of fact in the absence of fraud.
The defendant, A & P Tea Company, does not claim fraud. Therefore, our inquiry is limited to determining if there was any evidence to support the findings of fact of the appeal board.
The appeal board merely adopted the memorandum opinion of the referee.
The referee found in part:
"We concur in the position of the defense that plaintiff had underlying emotional problems prior to his assuming employment with the defendant in 1960. * * * The fact is that, accepting these and other clues pointing to the existence of a personality pattern which does not equate with a psychiatrist’s definition of the norm, plaintiff nevertheless presents a record prior to his injury of steady and conscientious work habits not only as a plumber but as a salvage worker in the employment of the defendant for over two years immediately preceding his injury. * * *
"Subsequent to his injury, on the other hand, we find a man who has had a number of acute alcoholic episodes which required hospitalization and continued inability to function because of complaints of back discomfort and nervousness which are accepted by both psychiatrists as sincere and free from suspicion of any component of malingering.
"We are convinced from the record that the episode of March 28, 1963, constituted the trigger which set in motion an active psychotic process, with depressive components, which has since disabled plaintiff from return to common labor. Any underlying problems which he may have previously had and had been able to master were translated into active disability by the traumatic incident. We are also satisfied that the increase in his drinking to the point of acute alcoholism at times after the injury is likewise related.”
Ordinarily, it would be sufficient to conclude that there was evidence in the record to support the appeal board’s finding of a causal connection between the job injury and permanent and total disability because of a mental or emotional condition. However, this case calls for further consideration of the appeal board’s application of the rule of incurable insanity which this Court set out in Sprute v Herlihy Mid-Continent Co, supra (p 579; 189 NW2d at 92):
"An employee is incurably insane * * * if the occupationally-related mental or emotional illness which impairs the employee’s mental processes is of totally disabling proportions and is likely to be of long and indefinite duration, thus making gainful employment impossible.”
The Court in Sprute stated (pp 578-579; 189 NW2d at 91):
"Having rejected the Borg [1969 WCABO 1246, 1258] test for incurable insanity as being too restrictive, we shall attempt to formulate a test to be used in future cases. In providing a test for incurable insanity under the Workmen’s Compensation Act, we believe that the best approach is to present a broad definition, consistent with the basic principle that the employee’s disabling condition make him unfit for employment. Such a test would be designed to permit the fact finder to allow compensation only when the injury has affected the employee’s mental capacity to the extent that it precludes him from gainful employment.”
Clearly, the plaintiff could very easily be encompassed by the Sprute definition of incurable insanity.
The only reason that the appellant advances for requesting that this Court restrict the definition of incurable insanity is that:
"the Fund has been named a party defendant to an increasing number of petitions alleging permanent and total disability benefits for emotional or neurotic conditions.”
This Court will not restrict the definition of incurable insanity as detailed in Sprute merely because the fund has found itself subject to more petitions alleging incurable insanity.
It is important to note that leave to appeal was denied in Sprute at 385 Mich 784 (1971). With this fact in mind, and also the fact that the appellant could only advance a nonpersuasive argument for limiting the holding in Sprute, this Court reaffirms the definition of incurable insanity as related in Sprute v Herlihy Mid-Continent Co, supra.
Affirmed. Costs to appellee.
All concurred.
See currently Workmen’s Compensation Act of 1969, MCLA 418.361(2)(f); MSA 17.237(361)(2)(F). | [
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Walsh, J.
The appellant was convicted of the crime of armed robbery, contrary to MCLA 750.529; MSA 28.797. He was sentenced to a term of 20 to 40 years in prison and appeals.
The crime with which defendant was charged took place on March 1, 1971 at approximately 7:30 p.m. at the Crest Drugstore in Detroit.
The owner of the drugstore, Joseph Rogoff, testified that on that date while he was standing behind the pharmaceutical counter in the store, a man identified as the defendant came behind the counter with a gun and ordered everyone to get down on the floor.
Mr. Rogoff stated that the defendant asked him for a drug, Debutal. Mr. Rogoff gave him two 500-tablet bottles of this drug. Mr. Rogoff was also forced to open the safe from which the defendant took approximately $1100 as well as the pharmacist’s gun.
According to the testimony of one Steve Petrucci, a stockboy at the Crest Drugstore, the defendant was aided in the perpetration of this crime by another individual.
One Woodrow Smith, an alleged accomplice of the defendant, testified at trial for the people after being promised immunity from waiver to Recorder’s Court. Mr. Smith’s testimony implicated the defendant and one Lawrence Dumas in this robbery. Mr. Smith testified that he remained in an automobile during the course of the robbery. He stated that the defendant, while leaving the scene of the crime, accidentally shot himself in the leg. Mr. Smith also claimed that the defendant had stolen, among other things, two bottles of Debutal and a gun.
Defendant’s first allegation of error is that the trial court improperly instructed the jury with respect to an essential element of the crime of armed robbery, i.e., that the property must be taken with felonious intent. In his instructions to the jury the trial judge stated:
"Robbery is defined to be a felonious taking of money or goods of any value from the person of another or in his presence or against his will by violence or by putting him in fear. In order to establish a charge of robbery it must be proven beyond a reasonable doubt, all reasonable doubt. I will define this term to you. That some money or other property was stolen that that property or money was taken without felonious intent, that is to say with purpose or design and intent to permanently deprive the lawful owner of possession of the same. That taking from a person of another or in his presence money or property must be taken from the person or in his presence or against his will by force or violence or putting him in fear.
"In order to substantiate a charge made in the information, the people must prove beyond a reasonable doubt, first that this offense was committed in the city of Detroit as charged in the information; second that the money or other property was stolen from the person in the presence of the complaining witness; third that it was of some value; fourth it was taken with a felonious intent; fifth that it was taken from the person of the complaining witness; sixth that it was taken against his will; seventh that it was taken either by force or by violence or by assault or by putting the complaining witness in fear and at the time that the defendant was armed with a dangerous weapon or an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon.” (Emphasis supplied.)
Obviously, in the first quoted paragraph, the trial judge misspoke himself. However, this misstatement was virtually immediately corrected as can be gleaned from an examination of the entire quotation, supra.
In People v Spaulding, 42 Mich App 492, 496; 202 NW2d 450, 452 (1972), this Court stated:
"When reviewing an instruction to determine whether or not it stated the applicable law or prejudiced the defendant, we will examine the instruction as a whole rather than in small excerpts. People v Pearson, 13 Mich App 371 [164 NW2d 568] (1968), and People v Haggai, 332 Mich 467 [52 NW2d 186] (1952).”
Moreover, defendant did not object to this misstatement. In People v Nelson, 35 Mich App 368; 192 NW2d 682 (1971), the trial court correctly instructed the jury at one point on a necessary element of self-defense, that is, that there must have been no way open whereby the defendant could have retreated. At a later point in his instructions, the trial judge stated that "there must have been some way open whereby he could have retreated”. This Court held that the misstatement was error but thereafter stated:
"[T]he defendant did not object at trial, but, rather, presents it for our consideration upon appeal.
"This Court will not reverse on the basis of an error which was not objected to at trial unless manifest injustice would otherwise result. GCR 1963, 516.2, and People v McClure (1971), 29 Mich App 361 [185 NW2d 426]. We conclude it is unlikely that the court’s misstatement misled the jury which was previously correctly instructed and to whom had been explained the logic of the rule. As in People v Darwin Brown (1968), 15 Mich App 50 [166 NW2d 7], any error which existed was harmless.” 35 Mich App 368, 370; 192 NW2d 682, 684.
The foregoing analysis is equally applicable to the instant case. Thus, no reversible error occurred from the misstatement.
Defendant’s next allegation of error is that the trial court erred in granting the prosecution’s motion to indorse Woodrow Smith, defendant’s alleged accomplice, after the jury had been impaneled.
This claim of error is entirely vitiated by the well settled rule that the people need not indorse accomplices as res gestae witnesses. People v Henderson, 47 Mich App 53; 209 NW2d 326 (1973); People v Peck, 39 Mich App 150; 197 NW2d 346 (1972). Since the prosecutor had no duty to indorse Mr. Smith as a res gestae witness, error cannot be predicated upon his late, albeit unnecessary, motion to do so.
Defendant next contends that the prosecution had an affirmative duty to disclose before the jury the fact that an agreement had been made between the prosecutor’s office and Mr. Smith whereby in return for Smith’s testimony, the prosecutor would not seek to have him waived from the jurisdiction of the probate court (Mr. Smith was a juvenile) to Recorder’s Court.
In the instant case there is no doubt that defendant and his attorney were aware of the grant of immunity from the time of the preliminary examination. The same attorney represented the defendant both at the preliminary examination and at trial. The following colloquy took place at defendant’s preliminary examination:
"The Court: Yes, Milton Lawrence Thomas. Now, the matters to be put on the record here. You may be seated, sir.
"Yesterday we had quite a discussion, the people’s witness was a minor and was been — had been according to his own testimony involved in this matter. The court itself was remiss in not realizing that I should have told —stopped the testimony of this minor, because — and advise him of his rights against self-incrimination, because the prosecution could and can ask for a warrant from probate court jurisdiction to circuit or recorder’s court jurisdiction and prosecute him on the basis of his admitted involvement in this case.
"The court was remiss in not doing that. We have since discussed the matter — I have since discussed the matter with the prosecution and defense counsel present. It’s my understanding that for whatever it’s worth the prosecution is going to put on the record a promise that it will not ask for a waiver to recorder’s court, and as best it can grant immunity with whatever power it may have to grant immunity to the defendant. To the witness. Is that correct, counsel for the people?
"Mr. Gibbs: It is, your Honor, in the case of the People of the State of Michigan versus Milton Lawrence Thomas, those matters which Mr. Smith testifies to here in court involving any culpability as regards to the incidents that arose from the Crest Drugstore on 3-1-71, at 2860 East Seven Mile Road within the City of Detroit, we will not move for a waiver of probate jurisdiction to have the witness put in—
"The Court: Charged—
"Mr. Gibbs: —jeopardy.
"The Court: Do you understand that Woodrow Smith?
"The Witness: Yes.
"The Court: In other words, what we’re saying is that I should have told you yesterday that you don’t have to testify where what you say can find you guilty of committing a crime. And the prosecutor, even though you’re a minor, has the authority to ask the court to try you as an adult. Just what is said, he is saying that you will not be. And that you are immune from prosecution from this charge, anything you say. So that you cannot, in fact, get yourself in trouble over what you say. Do you understand that?”
Thus, there can be no claim of ignorance on the part of defendant or his attorney of this grant of immunity to Woodrow Smith. Defendant’s attorney did not bring out the existence of this "deal” during cross-examination of Mr. Smith. Nor did he ask for a jury instruction concerning the possible effects of such a "deal” upon Mr. Smith’s credibility as a witness.
In People v Nettles, 41 Mich App 215; 199 NW2d 845 (1972), the prosecutor disclosed to everyone but the jury the fact that charges against two alleged accomplices of the defendant had been reduced in return for their agreement to testify against the defendant. Yet both of the accomplices, upon cross-examination by defense counsel, denied that any "deal” had been made. This Court in reversing defendant’s conviction stated:
"There is no question that the prosecutor and the trial judge must have been and were aware of the fact that these were not truly stated factual recitations; that in fact there was an arrangement because it was so stated on the record outside of the presence of the jury. This was known to everybody but the jury which was the 'trier of the facts’. Yet, under our law the 'trier of the facts’ is entitled to full information on matters pertaining to the credibility of witnesses, and in fact it is always argued by the prosecution and instructed by the court that the jury must consider the 'bias or prejudice or interest in the outcome of the proceeding’ on the part of the witnesses in determining their credibility. This fact is so well known, and because it is equally well known that the prosecutor has the obligation to protect the interests of all citizens, not merely to secure convictions, we see no need to extend the length of this opinion by citation of numerous authorities.” 41 Mich App 215, at 219-220; 199 NW2d 845, at 847.
The Court in People v Nettles, supra, was unpersuaded by the prosecutor’s contention that since the defendant was not precluded from cross-examining the accomplices no prejudice resulted. However, that argument was unavailing since both of these men denied the existence of a "deal” under cross-examination and neither the prosecutor nor the trial court did anything to contradict these denials.
In People v Love, 43 Mich App 608; 204 NW2d 714 (1972), an accomplice of the defendant (who was also a co-defendant at trial) gave testimony implicating the defendant. After the completion of the arguments of counsel and before the judge delivered his instructions to the jury, the prosecutor moved to dismiss the case against the accomplice. The motion was granted. The trial judge, however, refused to give a defense-requested instruction to the effect that the case against the accomplice had been dismissed upon motion of the prosecutor and that her testimony should be weighed very carefully. In reversing the defendant’s conviction this Court stated:
"Certainly in a situation where, as here, the accomplice has been granted immunity in order to secure his testimony, it is incumbent upon both the prosecutor and trial judge to make known that fact to the jury. In Giglio v United States, 405 US 150, 154-155; 92 S Ct 763, 766; 31 L Ed 2d 104, 109 (1972), the United States Supreme Court reversed Giglio’s conviction because of the prosecutor’s non-disclosure of a promise not to prosecute. The Court declared:
" 'Here the Government’s case depended almost entirely on [the alleged coconspirator’s] testimony; without it there could have been no indictment and no evidence to carry the case to the jury. [The coconspirator’s] credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.’ (Emphasis supplied.)
"See also People v Nettles, 41 Mich App 215 [199 NW2d 845] (1972).
"Fundamental due process requires that the prosecutor fully inform the jury of all facts relevant to their determination of the case. Since the credibility of the witnesses is of the utmost importance, and since the granting of immunity to an accomplice creates a situation in which the probability of false swearing is heightened, it is incumbent upon the prosecutor to make known to the jury the fact that immunity or a plea to a reduced charge has been granted to the testifying accomplice. It is therefore axiomatic that the trial court must inform the jury of such fact, if such fact comes to the attention of the court. Further, the trial court, upon a request of counsel, should instruct the jury to carefully consider the weight to be given the accomplice’s testimony in light of the various temptations under which such witness may be placed and the motives by which he may be actuated.” 43 Mich App 608, at 613-614; 204 NW2d 714, at 717.
In Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972), the defendant was convicted of passing forged money orders solely on the basis of the testimony of an alleged accomplice who had been promised leniency in return for his testimony against the defendant. No disclosure of this "deal” was made to the trial court, to the defendant, or to the jury. The Supreme Court in reversing defendant’s conviction stated:
"Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.” 405 US 150, at 154r-155; 92 S Ct 763, at 766; 31 L Ed 2d 104, at 109.
We are of the opinion that People v Nettles, supra, People v Love, supra, and Giglio v United States, supra, are all distinguishable on the facts. In both Nettles and Giglio, a situation was extant in which a prosecutor failed to correct a witness’s denial of a "deal” when in reality such an agreement had been made. This was said to be a denial of due process. We agrée. However, such is not the case here. Here no denial of a "deal” was ever made by Mr. Smith. The question of the existence of such an agreement was never put to him on cross-examination.
People v Love, supra, also presented this Court with a different situation than does the instant case. In Love, the charges against the accomplice were dismissed after the completion of the arguments of counsel. The defendant’s attorney specifically requested the trial judge to instruct the jury that the case against the accomplice had been dismissed and that they (the jury) must weigh the testimony of the accomplice very carefully. These requested instructions were denied. This Court reversed on this ground and we concur in that result. However, in the instant case, although defendant and his attorney were aware of the existence of the grant of immunity from the time of the preliminary examination, no instruction, such as was requested in the Love case, was ever asked for by the defendant in this case.
However, defendant apparently urges this Court to hold that the prosecutor has a duty to inform the jury as well as the defendant of a grant of immunity even in a case such as the instant one where defendant, with knowledge of the grant of immunity, does nothing to bring said grant to the attention of the jury. We decline to so hold. This is not a case wherein a defendant was not advised of a grant of immunity to an alleged accomplice. Nor is this a case wherein an accomplice who has been granted immunity falsely denies, on cross-examination, the existence of such a "deal” while the prosecutor does nothing to correct the falsehood. Finally, this is not a case where the trial court refused to give a requested instruction as to the grant of immunity and its concomitant credibility ramifications.
We are unwilling to rule that a prosecutor must in all situations bring the fact that an alleged accomplice has been granted immunity to the attention of the jury. A good reason for our position is the fact that defense counsel may not want this fact brought to the attention of the jury. For example, defense counsel might be of the opinion that disclosure of the grant of immunity would only lead the jury to place more credence in the alleged accomplice’s testimony on the theory that the accomplice no longer has anything to fear from the authorities. On the other hand, defense counsel might be convinced that disclosure will lead the jury to conclude that the alleged accomplice is lying in order to fulfill his end of the "deal”. Either conclusion is within the realm of possibility. We view the decision to bring this matter to the attention of the jury as one appropriately left to defense counsel’s strategy and accordingly, we decline to require the prosecution to disclose the fact that immunity has been granted to the jury in a case such as the instant one. The prosecution must, of course, always disclose this matter to the defendant and his attorney. The prosecution must also not allow falsehoods to go uncorrected. But where, as here, defense counsel, though fully aware of the grant of immunity, does nothing to bring the matter to the attention of the jury, error cannot be predicated upon the fact that the prosecutor did not so inform the jury.
Finally, defendant contends that the trial court erred in considering his juvenile record in imposing sentence. This contention is unavailing in light of the Michigan Supreme Court’s decision in People v McFarlin., 389 Mich 557; 208 NW2d 504 (1973). There the Supreme Court expressly held that juvenile records may be considered in imposing sentence.
Affirmed.
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Danhof, J.
On March 24, 1970, defendant was charged with armed robbery. MCLA 750.529; MSA 28.797. On July 8, 1970, defendant pled guilty to this charge and sentencing was fixed for August 6, 1970. On August 4, 1970, defendant, represented by new counsel, filed a motion to withdraw his plea. The motion came on for hearing on August 14, 1970. An opinion and order denying defendant’s motion was filed by the trial court on October 8, 1971. On October 25, 1971, defendant was sentenced to a term of 15 to 25 years in prison, with credit for time served in jail since March 24, 1970.
On appeal, defendant raises two issues: (1) that the trial court erred in denying his motion to withdraw his guilty plea, which motion was en tered approximately 14 months prior to sentencing; (2) that the facts elicited on the guilty plea record provide an insufficient basis for reception of the plea. For purposes of this appeal, we need only discuss the first issue raised by defendant.
Although the delay between the hearing on defendant’s motion to withdraw and the trial court’s disposition thereof is not to be encouraged, this delay is not without explanation. From the record it appears that the delay was at least partially attributable to defendant’s being charged with murder arising out of events unrelated to the armed robbery to which defendant had pled guilty. The trial court in the instant case was aware of defense counsel’s simultaneous involvement in preparation for the murder trial which ended on July 15, 1971 with a jury verdict of guilty of manslaughter and defendant’s subsequent sentence on October 27, 1971 of 14 to 15 years on that charge.
The issue then which confronts us is the standard which should guide a trial court in passing on defendant’s motion to withdraw a guilty plea before sentencing. The standard was set forth in People v Cochrane, 40 Mich App 316, 317; 198 NW2d 417 (1972):
"There is no absolute right to withdraw a plea of guilty. People v Case, 340 Mich 526; 65 NW2d 803 (1954). However, where, as here, the motion to withdraw the plea is made before sentencing, the trial judge’s discretion should be exercised with great liberality. People v Bencheck, 360 Mich 430, 432; 104 NW2d 191, 192 (1960).”
We note that under the newly revised court rule, GCR 1963, 785.7(4), effective June 1, 1973, a plea can be withdrawn as a matter of right only prior to acceptance, but after acceptance withdrawal continues as a matter left to the discretion of the trial court. Since we are concerned here with a plea entered prior to the effective date of the new rule, we do not decide the issue of whether the Cochrane standard has continuing validity to pleas entered on or after June 1, 1973.
In interpreting the standard regarding allowance of withdrawal of a plea of guilty prior to sentencing, as set forth in Cochrane, supra, we note the following cases where refusal to set aside a plea of guilty was held not to be an abuse of discretion. In People v Banning, 329 Mich 1; 44 NW2d 841 (1950), defendant entered his plea of guilty after the jury was empaneled and trial had begun. In People v Case, 340 Mich 526; 65 NW2d 803 (1954), defendant’s plea to a lesser offense was the result of a plea bargain. Defendant’s motion to withdraw plea was made in the midst of sentencing proceedings when it became apparent, because of the sentence given to a codefendant, that defendant’s sentence was going to be harsher than previously expected. In People v Davis, 372 Mich 402; 126 NW2d 725 (1964), defendant pled guilty to an added count on the day set for trial, after the people’s witnesses had been subpoenaed and were ready to testify. Defendant’s motion to withdraw plea was made on the day set for sentencing, after defense counsel had read the report from the probation-department and had gained an impression as to what the sentence would be. In People v Zaleski, 375 Mich 71; 133 NW2d 175 (1965), defendant’s plea of guilty was entered on the day set for trial. Allegations made in defendant’s motion to withdraw, to the effect that he was suffering from "nervous indisposition and stomach ulcers” at the time of the plea, were found to be frivolous. In People v Pulliam, 10 Mich App 481; 157 NW2d 302 (1968), defendant’s motion to withdraw plea was made after the court had entered a sentence of 20 years to life for armed robbery. Because of its irregularity, the sentence was set aside. Defendant’s motion to withdraw plea was clearly motivated by the realization that his sentence was going to be harsher than originally expected. In People v Adams, 42 Mich App 171; 201 NW2d 340 (1972), defendant’s plea came in the midst of a jury trial; this Court found no error in the trial court’s statement that it would not allow defendant to withdraw his plea except in the most unusual circumstances.
In the case at bar, there is no indication that defendant’s plea of guilty to the original charge was the result of a plea bargain. The plea was entered in advance of the date set for trial. The motion to withdraw the plea was not only made prior to the date set for sentencing, but there is nothing in the record to indicate that defendant’s motion was made because of a realization that his sentence would be harsher than expected.
In the hearing on the motion to withdraw plea, the most serious arguments advanced by defense counsel were as follows: (1) representations by police officers had been made to defendant out of the presence of defense counsel that things would go easier for defendant were he to plead guilty; (2) defendant’s plea was entered the day following damaging admissions made in reference to the murder charge. Defendant claimed these admissions to have been involuntary. Thus, defendant alleged that his decision to plead guilty came at a time of great psychological confusion and was influenced thereby.
Other reasons of less merit were advanced by defendant in support of his motion to withdraw plea. He claimed to have been incarcerated without benefit of counsel for a period in excess of three months prior to the plea. From the record this appears to have been due to defendant’s insistence on retaining counsel of his choice. When it became apparent that because of indigency defendant would be unable to retain counsel, counsel was appointed. Defendant also alleged that facts elicited at the plea proceedings were insufficient to sustain the plea and that the trial court had erred reversibly in failing to inform him of the minimum two-year sentence for armed robbery accompanied by aggravated assault or serious injury.
While defendant’s most serious allegations in support of his motion to withdraw plea may not have been completely substantiated, neither were they clearly frivolous. In People v Bencheck, 360 Mich 430, 433; 104 NW2d 191, 192 (1960), it was stated:
"Where, as here, a defense of innocence is asserted at the time of a request to withdraw the plea, and the request is not obviously frivolous and is made before commencement of trial and before sentence, the plea should be granted. The right we deal with here is the right to a jury trial, and even what may prove a well-founded belief in defendant’s guilt on the part of the trial judge should not impede the exercise of that right.”
We, therefore, hold that defendant’s motion to withdraw plea should have been granted.
Reversed and remanded for an order allowing withdrawal of plea and a new trial.
All concurred. | [
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] |
J. H. Gillis, J.
Plaintiff, Glaser’s Elevator & Lumber Company, during several months in 1967, supplied defendant, Kenneth Perry, a residential building contractor, with construction materials. Although defendant had been paid for completion of the building projects, plaintiff was not paid. Plaintiff brought suit, alleging the funds defendant had received were impressed with a trust pursuant to MCLA 570.151 et seq.; MSA 26.331 et seq.
Defendant alleged in his first responsive pleading that any obligation to plaintiff belonged to Ken Perry Builder, Inc., which was alleged to be a duly licensed Michigan corporation, and that he was not liable individually.
Pretrial discovery revealed defendant, during the time the debts were incurred, had filed an assumed name certificate to the effect he was doing business as "Ken Perry Builder”. Also, during the time the debts were incurred, defendant was secretary, treasurer, and principal shareholder of Ken Perry Builder, Inc.
Further discovery revealed the corporation had not filed its annual report for 1967 pursuant to MCLA 450.82; MSA 21.82. Depositions and interrogatories narrowed the issues to a question of who owed the debt, not whether it was owed.
Plaintiff’s motion for summary judgment was granted before trial. Defendant appeals.
We hold defendant had failed to state a valid defense to the claim asserted against him. See GCR 1963, 117.2(2). The interposition of the corporate entity as the principal debtor did not relieve defendant of personal liability on the claim. MCLA 450.87; MSA 21.87, provides that the failure of the corporation to file an annual report results in suspension of its corporate powers and that:
"Any officer * * * of such corporation so in default who has neglected or refused to join in making of such report * * * shall be liable for all debts of such corpora tion contracted during the period of such neglect or refusal.”
Thus, whether the debt was incurred by defendant personally, or the corporate entity he sought to interpose, his personal liability was clear. Summary judgment was properly granted.
Affirmed. Costs to appellee.
Fitzgerald, P. J., concurred. | [
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McGregor, J.
Defendant was jury convicted of armed robbery, MCLA 750.529; MSA 28.797, and sentenced to a term of 20 to 40 years in prison.
Testimony at trial indicated that, on February 7, 1972, one McKee was alone in the Salvation Army Record Shop at about 1:10 p.m.; McKee was an employee. Defendant entered the shop armed with a pistol, and told McKee to give him the money from the cash register, which McKee did. Defend ant left and McKee immediately telephoned the police. McKee gave a detailed description of the robber to the first officer on the scene and two hours later identified the defendant out of a six- or seven-man lineup at the police station. The public defender was present at the lineup.
When cross-examined, McKee denied knowing a man by the name of Kayboy, and stated he had not told his employer or the police that there was another person present at the time of the robbery.
Several police officers testified concerning their convergence at the area where the suspect was believed to be, taking the defendant into custody, and searching for and finding a loaded pistol in a trash receptacle nearby. Testimony was given regarding the Miranda warnings and the lineup; cross-examination of this officer also established that no evidence had been obtained as to the presence of another person during the robbery. This witness testified that McKee told him that after defendant left the store, a man opened the door, and when McKee asked him if he had seen the fellow who had just left, the man answered that he had, but did not want to get involved, and left. McKee told this witness that the man who had briefly entered the store and left was white and looked like a student. The officer testified that there was no way to find this person, as McKee did not know him. Other witnesses identified exhibits and gave expert testimony.
Defendant testified that he met a fellow called Kayboy at a bar between 12:00 and 12:30 on February 7, 1972; after some conversation and a drink, they left the bar together and walked to the record shop. He testified further that the man called Kayboy went into the shop first, and when defendant entered the shop, McKee and Kayboy were arguing. Defendant asserted that when he was in the store he saw McKee hand money from the cash register to Kayboy. Also, he testified that he and Kayboy left the shop together, but that Kayboy went back to the shop for a few minutes. Shortly after, Kayboy caught up with the defendant and told him that McKee had called the police and reported a robbery; defendant further testified that he had a loaded gun in his possession at the time and didn’t want to be caught with it, so he put it in the trash can. He also testified that he threw his hat away. Under further questioning by defense counsel, defendant stated that he had been convicted previously of robbery armed and robbery unarmed and various misdemeanors, including larceny, that he had pled guilty to all of them, and had never gone to trial before.
Upon cross-examination, defendant admitted convictions in 1943 of simple larceny and larceny in a building, in 1944 of larceny in a building and concealing stolen property, in 1945 of disorderly fighting, in 1946 of robbery unarmed, carrying a concealed weapon, and army desertion, and in 1950 of robbery armed and unlawfully driving away an automobile. Defendant also testified that he had bought the gun in 1971, did not remember where, and that he thought the gun was "hot”. Defendant further admitted that he was a user of cocaine and heroin, that his habit cost him about $25 per day, and that he was not working steadily.
Upon redirect examination, defendant testified that he carried the gun for protection from the enemies he had made while serving a sentence in Jackson prison.
After the defense rested, the prosecution recalled a police officer who testified that the gun had been stolen in a breaking and entering in Ann Arbor on November 11, 1971. The prosecution again rested, and the court recessed for lunch. After this recess, the prosecution asked to reopen the case because of additional information obtained during the recess. No objection was made by the defense, and the court granted leave to reopen.
McKee was recalled for testimony, in which he admitted that he had not told the truth earlier when he said he was alone in the shop at the time of the robbery; he testified that a person whom he knew, named Dennis Keppler, came into the shop a few steps before the defendant, that they exchanged greetings, and then the defendant entered the shop and demanded the money. McKee testified that he did not know at the time whether the two were together, but that after defendant took the store’s money from McKee, he also took $20 from Keppler. After the defendant left and McKee telephoned the police, he asked Keppler to be a witness; Keppler refused, saying that he had some parking tickets and did not want to get involved. After Keppler left, McKee decided not to mention anything about him. McKee stated that he now believed that Keppler was setting him up for the robbery, although at the time of the robbery he did not think so. He further stated that the first time he had mentioned the presence of this third person during the robbery to anyone was the day of his testimony, during the noon recess.
At the close of McKee’s testimony, the prosecution stated that, with this evidence of an accomplice or res gestae witness to the crime, it became the people’s duty to attempt to produce this person, and asked the court to issue a bench warrant for Dennis Keppler. Defense countered that, considering the length of time already spent in await ing trial, the defendant would waive the requirement of producing Keppler, since previous attempts to find Keppler had been unsuccessful. The court refused to accept the defendant’s waiver, and declared a recess for discussion of this new witness. When court was reconvened, defense counsel stated that it remained the position of the defense that it was in the defendant’s best interest to waive production of the res gestae witness, whereupon the court took the motion under advisement.
Defendant again took the stand and under cross-examination, opined that he did not believe Keppler would tell the truth if he were found, and that the defendant did not want Keppler to testify.
In the absence of the jury, the court questioned the defendant, and after obtaining no change in his statements, the court denied the prosecution’s motion to indorse and subpoena Keppler.
After defendant’s conviction and sentencing, the State Appellate Defender moved for disclosure and production of defendant’s presentence report, alleging that appellate counsel believed the sentence was based on constitutionally invalid felony convictions, in violation of United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). This motion was denied, but the trial court stated in its written opinion that, without setting any precedent, defense counsel would be permitted upon informal request and by appointment to examine the presentence report personally at the court chambers.
Defendant first argues on appeal that it was reversible error to call the police officer as a rebuttal witness and to question him about the gun, which the officer stated had been stolen, but which the defendant testified that he had purchased, since this testimony tended to show the commission of the crime of stealing a gun, not armed robbery, the crime charged.
The prosecution contends that it has the right and duty to impeach defendant’s testimony, and that their rebuttal witness was attempting to verify the untruth of defendant’s testimony, not the commission of another crime.
Defendant’s testimony as to the purchase of the gun in August, 1971, was not true if the police officer’s rebuttal testimony that the gun was stolen in Ann Arbor in November, 1971 was believed. No objection was made by the defense to this rebuttal testimony. Questioning of the police officer by defense counsel established that the officer did not know who had stolen the gun.
As a general rule, the prosecution cannot show the commission of another unrelated offense by the defendant. People v Lundberg, 364 Mich 596; 111 NW2d 809 (1961). The evidence of another crime was not part of the case in chief, nor was it deliberately injected into the case during cross-examination of the defendant. This evidence was elicited during rebuttal in order to disprove a statement by the defendant. It is noted that the trial court observed that defendant made no objection to this testimony. Under such circumstances, the gun testimony was not reversible error.
Secondly, defendant claims he was denied his right to remain silent by cross-examination which elicited that, before the lineup, he had told the police officer that he would talk to him but did not do so thereafter, and by comment upon this silence in the prosecutor’s closing argument.
There is a difference in the authority on this issue. Once the defendant takes the stand, he has waived his right not to incriminate himself, and the prosecution may comment on defendant’s ear lier silence without committing error. People v Bell, 32 Mich App 375; 188 NW2d 909 (1971), leave den; People v Russell, 27 Mich App 654; 183 NW2d 845 (1970). Since defendant’s silence was first elicited by his attorney, there was no objection by defendant to the later questioning and comment regarding it by the prosecution, and good reason was given for the silence, reversible error did not occur in this case.
Defendant next contends that it was reversible error for the prosecutor to comment in closing argument on the fact that defendant waived the calling of the res gestae witness, Dennis Keppler.
Considering the defendant’s vigorous opposition to the prosecution’s request for a bench warrant for Keppler and the fact that the issue was not preserved by timely objection, the people’s comment on it does not appear to be reversible error. People v Williams, 42 Mich App 278; 201 NW2d 286(1972).
Defendant further contends that the use of information pertaining to some of his prior convictions for impeachment purposes was reversible, because those convictions may have been obtained unconstitutionally, and cites as support Loper v Beto, 405 US 473, 92 S Ct 1014; 31 L Ed 2d 374 (1972). No certified court records are offered in support of this argument. Even if this case involved felonies or misdemeanors resulting in imprisonment, the defendant has failed to sustain his burden of proof.
Defendant’s other claims of error have been considered and found either not to have been preserved for appeal, or to be without sufficient merit to warrant discussion.
Conviction affirmed.
All concurred. | [
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Van Valkenburg, J.
This is a zoning case. The building in question is a 472 unit, 14 story highrise apartment building, which was built for the express purpose of housing senior citizens. The building stands on a 4.65 acre plot at 7800 East Jefferson Avenue in Detroit, adjacent to the Detroit River and just north and east of the Belle Isle bridge. The land upon which the apartment was built was conveyed to the present owners by the United Auto Workers Union on the express condi tion that low cost units be constructed for elderly tenants.
The developer of the apartment sought and was granted a variance by the Detroit Board of Zoning Appeals with respect to the number of parking spaces that needed to be provided. The normal number of parking spaces for apartment buildings of this size is one and one-fourth spaces per unit, or in this case 590 parking spaces. The board of zoning appeals granted a variance whereby only 159 spaces were required, or a 73% deficiency. Appellant fought the issuance of the building permit with that variance both before the board of zoning appeals and later in an action for superintending control in Wayne Circuit Court. From the denial of an order of superintending control appellant appeals.
The question on appeal, as it was below, is whether the board of zoning appeals properly granted the variance. Detroit Ordinance No. 62.0402(d) provides, in pertinent part, that the board may:
"Permit a modification in the required location of off-street parking facilities or in the amount of off-street parking facilities required, or both, if after investigation by the Board it is found that such modification is necessary to secure an appropriate development of a specific parcel of land; provided, that any such modification will not be inconsistent with the spirit and purpose of this Ordinance, with public safety, and with substantial justice.”
Appellant asserts that the above-quoted ordinance constitutes an unconstitutional delegation of legislative power in that there is not a sufficiently defined set of definite standards governing the board of zoning appeals in its administrative task. The nature of this provision of the ordinance must be viewed in the totality of the entire zoning ordinance. The ordinance provides a base-line figure with respect to the number of parking spaces that should be provided for various type of buildings. Recognizing that such a figure can represent, at best, the average needs in a typical situation, the ordinance wisely provides a means by which the board could vary those requirements to meet the particular situation. The board does not have unfettered discretion in granting these variances. In order to grant the variance the board must ascertain that the "modification is necessary to secure an appropriate development of a specific parcel of land”. The power of the board is further limited by the provision that the "modification will not be inconsistent with the spirit and purpose of this ordinance, with public safety, and with substantial justice”.
Appellant’s assertion that the language "necessary to secure an appropriate development” is not sufficiently precise to provide a reasonable guideline fails to view the language in its proper context. While such language is difficult to define in the abstract, it does provide a reasonable standard when applied to a known factual situation. The exact nature and intent of the language is further defined by reference to the provisions setting forth the "spirit and purpose” of the ordinance. While administrative bodies cannot be granted unfettered discretion to undertake their duties without reasonable legislative guidelines, neither must those bodies be shackled by unnecessarily precise and immutable standards where the legislative body has deferred the application of those standards to the administrative body’s expertise. We find that here there are sufficient standards against which the actions of the board can be gauged.
Appellant next argues that, assuming the ordinance is constitutional, the board’s determination was contrary to both the spirit of the ordinance and the evidence presented. A review of the record reveals that there was evidence that in 12 similar projects for the housing of the elderly only about 30% of the residents owned an automobile. There was evidence that a ratio of one parking space to every three apartments was adequate to handle the resulting traffic volume. The validity of that evidence is a question of fact which was properly addressed to the board. Since there was sufficient evidence to support the board’s finding that the 159 spaces would be adequate, this Court will not disturb that finding.
As to whether the board’s determination was contrary to the spirit and intent of the ordinance, the answer is clearly "no”. Assuming as we must that the 159 spaces are adequate to meet the needs of the residents without creating congestion on the streets, the variance as granted was indeed "necessary to secure an appropriate development of * * * (the) land”. The evidence showed that in order to park the number of automobiles required by the ordinance either virtually all of the available land would have to be used or a multistory parking structure would be needed. There can be nothing which is less appropriate to the development of low cost housing than to burden it with the unnecessary expense of unneeded parking facilities.
Appellant’s fear that the property might be sold and be used by persons other than the elderly and therefore bring about a situation whereby the present parking facilities are not sufficient is not well founded. Both the board and the lower court evidenced a willingness to reconsider the matter if such an eventuality occurred. The board took the further precaution by recording with the register of deeds an instrument indicating the variance was conditioned upon the use of the building as a home for the elderly. It should be noted that the owner of the apartment agreed on the record to provide additional parking spaces, if required. Under these circumstances it would appear that adequate provisions have been made to safeguard the community against this possible future change.
Appellant’s arguments with respect to alleged bias and undue influence have been reviewed and found lacking. The findings by the lower court in those respects are supported by the record and will not be disturbed on appeal.
Affirmed. No costs, a public question being involved.
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V. J. Brennan, J.
Plaintiff is a broker in. burial rights. In the words of the brief for one of the appellees, he "purchases burial rights from individuals who must sell because they cannot make use of the plots for themselves”. He resells such burial rights for a profit. He is licensed to engage in such an enterprise as required by statute (MCLA 456.537; MSA 21.820[37]); and, after each such sale, he tenders 15% of the net proceeds to the perpetual care fund of the relevant cemetery, also in compliance with statute (MCLA 456.536; MSA 21.820[36]).
Plaintiff filed suit in the Wayne County Circuit Court challenging the constitutionality of each of these statutes (supra) on the ground that they violate the Equal Protection Clauses of the state and Federal Constitutions. Regarding the licensing statute, plaintiff argued that he is denied the equal protection of the laws because he must be licensed while cemetery employees who are engaged in selling burial rights need not be so licensed. We must first observe that cemetery employees are exempt from licensing only if their activity is "not for additional compensation” (MCLA 456.537; MSA 21.820[37]). .
The right to the equal protection of the laws under the Fourteenth Amendment to the United States Constitution and under Article 1, Sections 1 and 2 of the Michigan Constitution of 1963 are congruent. Fox v Employment Security Commission, 379 Mich 579; 153 NW2d 644 (1967). A frequently quoted formulation of the applicable stan dard for evaluating statutes challenged on such grounds is found in Lindsley v Natural Carbonic Gas Co, 220 US 61, 78-79; 31 S Ct 337, 340; 55 L Ed 369, 377 (1911), as follows:
"The rules by which this contention must be tested, as is shown by repeated decisions of this court, are these: 1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” (Citations omitted.)
See also Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510, 514; 104 NW2d 182, 183-184 (1960), and Holland Motor Express, Inc v Michigan Employment Security Commission, 42 Mich App 19, 25; 201 NW2d 308, 310-311 (1972).
Judging this statute by that standard, we agree with the trial court that the plaintiff failed to meet his burden. We find a rational basis for the statute in that the Legislature may well have concluded that the protection afforded by licensing is necessary only when the salesman stands to make a personal gain on the transaction.
Plaintiff’s challenge to the constitutionality of the statutory scheme for funding the perpetual care fund is basically twofold. The first argument is that in certain circumstances cemeteries may be exempted from making further payments into the fund. He points specifically to MCLA 456.35a; MSA 21.855(1) which authorizes the State Cemetery Commission, upon application of the cemetery, to waive further deposits to the perpetual care fund under certain circumstances. The last sentence of a paragraph of that section provides that if the board makes certain findings of fact, then they "shall grant a waiver of the 15% and $20.00 minimum requirement, and it shall grant such modiñcations with respect to contributions to such fund as it deems advisable(Emphasis added.) The emphasized portion of the statute clearly authorizes the board to waive payments into the perpetual care fund from private brokers under the appropriate circumstances. Since no cemetery has applied for and received such a waiver, there is no allegation that there has been an unequal application of the waiver provision.
Plaintiff also challenges the validity of the statute because those who are engaged in the sale of a burial right, but not as a full or partial means of livelihood, are exempted from payments into the fund. While that is true, we do not find the classification unreasonable or arbitrary in that it places the burden of contributing to perpetual care funds on those who deal in burial rights for profit.
Affirmed.
All concurred.
Would that they would share their secret with us mere mortals. | [
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O’Hara, J.
As the result of a fatal accident on I-94 when the Woods’ automobile struck a barricade in the highway, plaintiffs filed their complaint alleging negligence in count I, gross negligence in count II and nuisance in count III. Following trial in the Court of Claims, the trial judge found that defendant was negligent and that decedent, Damon C. Woods, was contributorily negligent which barred the executor’s claim on count I. The trial court found no gross negligence, but it did find nuisance to which contributory negligence was not a defense. From a judgment for the executor and for the individual plaintiff, defendant appeals. The executor cross appeals on the adequacy of the damages awarded to it.
Shortly after midnight on September 4, 1968, Damon C. Woods was driving west on 1-94 with his wife, Lois D. Woods. Fog in the vicinity of the accident affected visibility. Due to construction on westbound 1-94, defendant had constructed the barricade involved as part of the routing of westbound traffic around the construction area. This routing moved westbound traffic off the westbound lanes of 1-94 to the north eastbound lane in the construction area. Commencing at a point three-quarters of a mile east of the barricade, the following warning signs alerted westbound traffic of the barricade: construction ahead three-quarters of a mile; reduce speed; do not pass; barricade ahead; speed limit 50; two-way traffic ahead; divided highway ends. However, the lane dividing line and the double yellow lines on westbound 1-94 had not been removed, and they led right into the barri-. cade. There was no line leading traffic around the barricade to the north eastbound lane of 1-94.
Although traveling within the posted speed limit, the Woods’ vehicle struck the barricade. The impact caused a steel beam from the barricade to crash through the windshield, decapitating Mr. Woods. His head ended up in the back seat and his headless torso in the lap of his wife. She suffered no serious physical injuries, but she did suffer severe emotional shock.
Defendant first contends that the trial court’s finding of negligence is contrary to the great weight of the evidence. On the basis of the whole record we are unable to say that the finding of negligence of the state was clearly erroneous, GCR 1963, 517.1.
The trial court, sitting as the trier of the facts, found that defendant created and maintained a nuisance not grounded on negligence and that decedent Damon Woods’ contributory negligence was not a defense thereto.
We see no value in an extended discussion of the two generally recognized types of nuisance giving rise to actions for damages. One forgives contributory negligence, the other does not. Usually they are differentiated as being "negligent nuisance” and "intentional nuisance”. Perhaps the latter term is unfortunate. Manifestly the defendant in this case did not "intend” that decedent Damon Woods come to his tragic death. The real distinction is whether the nuisance involved arises out of what is sometimes called "simple” negligence or whether the lack of care and the lack of foreseeability is a breach of duty greater in kind than traditional simple negligence. The consensus holding is that into which category the acts or omissions fall can be either a question of law or of fact. In essence it seems to be the hypothetical "minds of reasonable men cannot differ” test that will determine whether the kind of nuisance under the adduced facts is a question of fact or law.
Consonant with what we think is the interpretation of this rule by our Supreme Court, we believe that the question of the type of nuisance created in this case was one of fact. The trial judge as trier of the facts resolved the question in favor of plaintiffs and against the defendant. We do not feel we can substitute our judgment for his. Thus, we feel obliged to affirm this aspect of the case.
So holding we then reach the question of 'the adequacy or inadequacy of the damages awarded.
We find no error in the trial court’s finding that Lois D. Woods suffered a severe emotional shock as the result of this accident which has caused mental problems which presently persist. The finding justified the damage award to Mrs. Woods.
As to the pecuniary loss to decedent’s estate, again we are faced with the proposition that while we might have awarded a larger sum, the trier of the facts did not. The recent thrust of all our case law is to proscribe judicial evaluation for that of the jury — or in this case, the trial judge — if the award is within the range of testimony as to damages. We do not consider the award in this case to have violated that salutary rule.
The judgment of the trial judge is affirmed.
We deny the relief sought by plaintiffs on the cross appeal. No costs, neither party having prevailed in full.
Bronson, J., concurred. | [
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Morse, J.-
The • deceased, Frank L. Silvers, at the time of his death, February 18, 1889, was insured in the Michigan Mutual Benefit Association of Hillsdale, Mich., in the sum of $3,000, the certificate of such insurance agreeing and promising to pay, 60 days after his death, if certain conditions were performed, the said sum of $3,000 to “Josie Silvers (wife), heirs, administrators, and assigns.” Josie Silvers died February 17, 1889, one day prior to her husband’s decease. They left no issue. Josie left a will devising and bequeathing all her property to Frank, her husband. Frank died intestate. Thomas Kyle was appointed administrator of Frank’s estate, and found this certificate of insurance among Frank’s effects.
Acting under the advice of counsel in the collection of such insurance, and supposing that the money must be collected in behalf of Josie’s estate, and then paid over by such estate to-Frank’s estate, under the will of Josie, he procured the appointment of Frederick B. Wood as administrator with the will annexed of Josie’s estate. Wood made proofs of the death of Frank, presented them to the insurance company, and demanded payment of the certificate, which was refused. He thereupon brought suit against such company as administrator of Josie’s estate. After the suit was at issue, it was learned by a recent decision of this Court (Mich. Mut. Ben. Ass’n v. Rolfe, 76 Mich. 146), that the suit was misconceived; that the death of the wife, she dying before the husband, terminated her contingent interest in the insurance, and that the suit should have been commenced in the interest of Frank’s heirs direct, as the estate of Josie was not concerned in said insurance. Thereupon these relators joined ip a petition to the circuit judge of Lenawee county, in which county the original suit was planted, praying for an order striking out the name of Frederick B. Wood as administrator, etc., as plaintiff .in said suit, and that the heirs at law of said Frank L. Silvers, deceased, be inserted as plaintiffs in said suit, and that said suit proceed in their names. This petition the circuit judge denied. We are asked to issue a writ of mandamus directed to said circuit judge, commanding him to enter the order prayed for in said petition, and to vacate his order denying- the same.
It is contended that mandamus will not lie to review the exercise of judicial discretion, and that in this case the respondent denied the proposed amendment in the proper exercise of such discretion. But this is a case where the right of action will be lost unless the amendment is permitted, and great injustice be done to the heirs of Frank Silvers, who cannot be said to be responsible for the mistake made in the name of the plaintiff in the commencement of the action, and we cannot believe that the learned circuit judge would have refused such amendment had he supposed he had power to make it. The point is made here, as it undoubtedly was before him, that the allowance of this amendment would permit the introduction of a new and distinct cause of action against the insurance company. If so, the circuit judge would have no authority to grant it. But we do not think that it introduces any new cause of action. The real plaintiffs in' the action, as commenced in the first place, — the persons to be benefited by this insurance certificate, — were the heirs at law of Frank Silvers. If the policy had vested, as at first supposed, in Josie Silvers before her death, and it was a part of her estate, under her will it descended to Frank Silvers, her husband, and, he dying intestate, it then went to his heirs at law. Under our rulings it never vested in Josie Silvers, but belongs to the heirs at law of Frank, so that the real persons interested and sharing the money to be obtained from it are the same in both cases, to wit, the heirs at law of Frank Silvers. In both cases it is really a claim .of these heirs against the insurance company, and the only difference is in the mode of its transfer to them,— a mere technicality in the legal steps necessary to be taken to 'collect it. Clearly in this case the money due upon this ins'urance certificate is payable to the heirs of Frank L. Silvers, and it would be a denial of justice not to permit this amendment. Mich. Mut. Ben. Ass’n v. Rolfe, 76 Mich. 152-154. If the real parties remain the same, and the change is of the nominal parties only, the amendment is permissible. Morford v. Dieffenbacker, 54 Mich. 593; Kimball, etc., Manfg. Co. v. Vroman, 35 Id. 310; Merrill’ v. Kalamazoo, Id. 211; Kinney v. Harrett, 46 Id. 87; How. Stat. § 7631 et seq. The amendment is in the furtherance of justice, and the insurance company cannot be surprised by it; neither will it be deprived of any substantial or essential rights in the premises, in my opinion.
The writ will be granted, but without costs.
The other Justices concurred. | [
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Morse, J.
On June 19, 1886, the plaintiff was in the employ of the defendant as a switchman in its yards at Muskegon. He had been in such employment since February of the same year, and had an experience of about three years before that time as a switchman for the company. While on the. foot-board at the rear end of a tank to a locomotive, the engine running backwards, he was injured in attempting to uncouple cars. He brought suit against the defendant in the Kent circuit court, and recovered a verdict of $4,000..
At the close of the plaintiff’s case, the defendant moved that the court direct á verdict in its favor, on the ground of the contributory negligence of the plaintiff, and also for the reason that the evidence did not tend to show any negligence in the defendant, as alleged in plaintiff’s declaration. The declaration was in four counts, and charged negligence on the part of the defendant in the following particulars:
1. In not providing a hand-rail across the rear end of the tender of said locomotive, after complaints made, and a promise by defendant that it would be provided.
2. In not providing the tender of said locomotive with a proper foot-board at the rear end thereof, in a reasonable state of repair, after notice to defendant of its defective condition, and a promise that the same would be repaired.
3. In allowing an unskillful and incompetent person to run and operate the said engine, after complaints made to defendant, and a promise on the part of defendant to plaintiff that, if he would continue in its employ, said unskillful and incompetent person should not run the engine any more.
4. And the fourth count of said declaration is a combination of all the above-alleged acts of negligence.
The motion was overruled, and- the defendant thereupon submitted testimony in its defense.
On the trial, the plaintiff introduced evidence tending to show that the switch-engine with which he was working was defective in that it had no hand-rail on the rear part of the tender, whore" it is customary to have such a hand-rail for the men to take hold of in getting off and on, “in case they were to fall, or anything;” that the foot-board was out of shape. This is the step at the rear of the tank. It was supported by two heavy irons, bent at the bottom to place the step on. These irons were bent back so they touched the brake beam, and the corner of the step was broken off, leaving it in bad shape.
“ The end of it was bent down towards the track, and then it sloped instead of standing level; it was bent down, and then sloped down towards the track. A handrail is an iron rail, and is fastened to the deck of the tank. The deck of the tank is the platform the tank sets on, and it projects out; and a hand.-rail is arch-shaped, and goes right down through these timbers, and fastened.”
On the night of June 10, having previously complained to his foreman, Martin Shannon, he reported these defects to the yard-master, McKiever (now dead), and was about to quit work, as he informed McKiever, on that account. McKiever told Pease, who plaintiff supposed was the assistant master mechanic, that it was dangerous, and he wanted it fixed, and Pease promised to fix it the next Saturday night. Relying on this promise, plaintiff kept at work expecting the defect to be remedied. He swears he would not have continued in the employ of the company if it had not promised to fix it. He also complained to Shannon about the fireman, one Marine Hector, running the engine, that he was not fit to handle an engine, and he would not work behind the engine if he was going to run it. He also reported to McKiever, who told the engineer to keep his place, that the fireman was not to handle the engine. The plaintiff and another switchman, George Race, quit work, and were about leaving the yard when McKiever asked them what was the matter, and plaintiff told him he was not going to work any more if the fireman was going to handle the engine. McKiever said if they would go back to work he would see that the fireman did not run the engine any more. At the time the plaintiff was hurt, this fireman was running the engine, the engineer having stepped off for a few moments. The testimony on the part of the plaintiff tended to show that Hector was an incompetent man to handle the engine, and did not understand the signals.
/•'He imagined he saw a signal when he didnZ. Sometimes he would shut it off and stop without a signal, and sometimes go ahead without a signal, and that was the reason we complained that he was not fit to handle the engine.”
Plaintiff testifies that he continued work in this instance for the reason that they agreed not to let the fireman handle the engine.
There was a box about six- inches wide by two inches thick running the width of the tank. It was his custom, when getting on the foot-board, to take hold of the front end of this box, which gave him some security, but, at the time of the injury, a portion of the top of the box was split off, so that he could not hold on to it. It was brokén off that morning. The box was not put there to take hold of, but to carry tools in, links and pins. At the time of the injury, about 10 o’clock in the forenoon of June 19, 1886, the engine ivas backing at the rate of five or six miles an hour, pushing three freight-cars. Plaintiff stepped on the foot-board on the right-hand side of the engine, which was going in a southerly direction, and was reaching for the coupling pin to pull it in order that the cars might be “kicked in”'on a side track by the momentum given them by the engine. As plaintiff was about to pull the pin, the fireman suddenly shut off steam and reversed the engine, without any .signal from the plaintiff, and without giving him any notice of his intention to do so. The sudden stopping of the engine took up the slack between the tank and the caito which it was attached, plaintiff was thrown violently forward, and, having nothing to catch hold of or hang on to, lost his balance, and fell upon the track. One of the wheels ran over his right foot, making amputation necessary at the ankle joint.
It is also evident from all the testimony that the injury to plaintiff was occasioned by the defect in the step, or foot-board, and the absence of a hand-rail, or something to take hold of, together with the action of the fireman in shutting off the steam. This' act of the fireman was the immediate cause of plaintiff’s fall, although, if it had not been for the defects spoken of^ he might perhaps have saved himself. The fireman, a witness for the defendant, testifies:
“When I shut off the steam, it took up the slack between the tender and the car. Lyttle did not lose his-balance until the steam was shut off."
There can be no fault imputed to the plaintiff, except in that he used the step and undertook to do the-uncoupling knowing of the defects that existed, and the want of a hand-rail; but he testified that he had used it about 100 times a day for a week ending that day without being jerked off or falling off.
“ There would have been no danger to me in the use-of the tender if it had not been for that sudden jerk. * * * I was jerked so I was falling, and had to-get out, or go under."
It appears from the evidence that McKiever had full Charge of the yards, and hired and-discharged the men therein. He had full notice by plaintiff’s showing of the-defect in the step, and the want of a hand-rail, and of the incompetency of the fireman to handle the engine-while switching was being done with it. The court correctly charged the jury that notice to McKiever was notice to the defendant, and that his negligence was the-negligence of the company.
It is contended that the yard-master was a fellow-servant of the plaintiff; but he was in no proper sense-such a co-employé that his negligence would not bind the-company. In these yards he represented the company.. He it was who hired and discharged the men, and directed and assigned them to their labors; and he was the agent or vice-principal of the defendant in this respect, as well as in the furnishing of proper, suitable, and safe appliances and places for their labor. His promise to remedy the defects in the engine, and to see that the fireman did not run the engine, was the promise of the company, and plaintiff had a right to rely upon it for a reasonable time, and to a reasonable extent. See Van Dusen v. Letellier, 78 Mich. 492; Brown v. Gilchrist, 80 Id. 56; Slater v. Chapman, 67 Id. 523; Quincy Mining Co. v. Kitts, 42 Id. 34; Ryan v. Bagaley, 50 Id. 179, 180; Rodman v. Railway Co., 55 Id. 62, 59 Id. 395; Luke v. Mining Co., 71 Id. 364; Harrison v. Railroad Co., 79 Id. 409.
The defendant invokes, against the validity of this verdict, and any recovery by the plaintiff, the familiar rule that a servant in entering a service accepts the ordinary hazards and dangers of his occupation, such as are incident to it, and for an injury sustained through such danger cannot recover; and also another rule that, although there are defects in the machinery, appliances, or structures furnished by an employer, or the dangers of the occupation are unusual, still if the employé knows of the defects, or of the dangers to be encountered, and continues in the employment, he will be regarded as assuming the dangers, and will not be permitted to recover for injuries arising therefrom. But neither of these rules applies to the plaintiff's case. There was testimony tend-Jng to show that the fireman was incompetent to run the engine while switching; that the employer was notified of such incompetency; that plaintiff refused'to work if the fireman was permitted to handle the engine; that such employer promised that the fireman should not run the engine, and, upon such promise, plaintiff continued his work; that the immediate cause of his injury was the negligence of this fireman while plaintiff did not know he was running the engine. It is true, this testimony was disputed and in part rebutted by the defendant, but this issue was for the jury; and, if they found with the plaintiff, he was entitled to recover on these facts alone.-
In .reference to the want of a hand-rail and the defect in the foot-board, the court instructed the jury that the defendant was not bound to furnish the locomotive tender with an iron rail at its rear; it could lawfully use said tender with an open box, such as it .was originally provided with, and it was not responsible to the plaintiff for any injury occurring in consequence of continuing the use of said locomotive tender after a part of the outer board of said box, and which the plaintiff had before used as a handle, had, with his knowledge, been broken off, if they found that the box was a thing which furnished him with reasonable safety of itself, whatever the condition of the other surroundings was, and that, by reason of its being broken off, he no longer had any safety, and that he had not brought it to the attention of the company, but had continued to use it thereafter. He also instructed them that the defendant was under no legal obligation to furnish a hand-rail, and that the plaintiff could not recover under the first count of the declaration. The court further instructed the jury as follows;
“ The defendant company were bound to furnish for these employes, and for the transaction of its business, reasonably safe and proper'rolling stock and locomotives, and reasonably safe appliances thereto, and a competent engineer and fireman. All the circumstances and the nature of the employment being considered, they were bound to do this, and what is reasonable in that respect is left to the jury as a matter of fact to find. But there is no obligation on the part of the company to furnish the best that can be procured of either machinery or men; and, in entering upon the employ of a company, an employé is presumed to know at least as much upon that subject as may be observed by a person having a reasonable degree of experience in the employment upon which he enters. If, therefore, you find that the defendant company did provide upon its locomotives reasonably good, upon this locomotive reasonably good, appli anees for the purpose for which it was used, — I may say appliances for the purposes for which they were used, — and kept them in a- good state of repair, and a reasonably good engine-driver for the purpose in the person of the fireman, who was at the time running this locomotive, then the plaintiff cannot recover. If you find that .the company did not .furnish suitable locomotives, or attachments thereto, or appliances therefor, for the purposes shown in this case that it was used for, or a competent engineer and fireman, and the plaintiff knew it, or had reasonable opportunity to know it, and did not impart such information to the company, then plaintiff cannot recovei;.
“If you find from the evidence that the plaintiff was reckless or careless' in his employment, and that such recklessness or carelessness or negligence on his part contributed in any wise to the injury, then, under the law as it exists in this State, he cannot recover; that is, if he has been guilty of what we call ‘ contributory negligence/ he cannot recover.”
“If you find that plaintiff, while in defendant’s employ, learned that the switch-engine uppn which he was working was defective and dangerous,‘and stated to the yardmaster that unless the defects and dangers were removed he would quit work, and the yard-master promised to remedy the defects and remove the dangers, and requested the plaintiff to continue work on a defective and dangerous engine, and that the plaintiff, relying on such promises, continued in the employ of the defendant for a reasonable length of time thereafter, and while in the exercise of due care, and without fault on his part, — I add these words c without fault on his part/ — was injured by reason of such danger not being removed, and such defects not being repaired, plaintiff is entitled to recover. As to what would be a reasonable time to continue in the use of an alleged defective switch-engine after promise to repair was made, if you find that it was made, which he claims, would depend on the circumstances of the case; as, for instance, the frequency with which the engine was used, the danger of using it while out of repair, if you find it was out of repair, and the opportunity which the defendant had for repairing it, etc.; you are to say, after considering all these circumstances of the case, whether plaintiff acted reasonably and ordinarily prudent in continuing 'in the use of this alleged defective and danger ous switch-engine during the time which he did use it.
“If you find that the plaintiff, while in the defendant’s employ, learned that the'fireman was running the engine in a careless, reckless, and incompetent manner, and stated to the yard-master that he was going to quit- work if the fireman was going to be allowed to run the engine, and the yard-master told the plaintiff to cozztinue work, and he would see that the fireman did not run the engine any more, and that the plaintiff, relying on this promise, continued in the employ of the defendant, and, while in the exercise of due care, was injured by reason of the fireman’s running the engine in the manner afoi’esaid, plaintiff is entitled to recover.”
These instructions correctly’ embodied the law of the case. Cooley, Torts, 559; Hough v. Railway Co., 100 U. S. 225; Brabbits v. Railway Co., 38 Wis. 289; Conroy v. Iron Works, 62 Mo. 35; Furnace Co. v. Abend, 107 Ill. 45; Greene v. Railway Co., 31 Minn. 248 (17 N. W. Rep. 378); Hoffman v. Dickinson, 31 W. Va. 142 (16 S. E. Rep. 53); Laning v. Railroad Co., 49 N. Y. 521; Shear. & R. Neg. § 96.
It is also argued that the court erred in permitting the plaintiff to testify to matters equally within the knowledge of McKiever, the yard-master and officer or agent of the corporation defendant, who was deceased at the time of the trial. The court on motion struck out all the testimony of plaintiff in reference to what occurred between him and McKievez*, except that part of his evidence which related to an alleged interview between McKiever and Pease, the master of the round-house, in the presence of the plaintiff and Race, and instructed the jury not to regard it. The court committed no error in this respect. The statute (How. Stat. § 7545) under which this evidence was sought to be excluded reads as follows:
“And when any suit or proceeding is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be permitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of a deceased officer or agent, of the corporation, and, not within the knowledge of any surviving officer or agent of the corporation,” etc.
Under this statute, the interview between McKiever and Pease, and what was said there, was admissible. The record shows that George Pace testified to the same facts as to the .complaints to and promises of McKiever as did the plaintiff, he being present with him, and the case of the plaintiff in this respect did not depend alone upon his own testimony.
The judgment of the lower court is affirmed, with costs.
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Grant, J.
This is an action to recover damages for the alleged negligence of the defendant in driving his carriage into and against the carriage in which plaintiff and another were riding.
Plaintiff, upon cross-examination, testified that one Dr. Dakin attended her and prescribed for her. On redirect examination she testified, without objection, that Dr. Dakin told her he was sent by Mrs. Allen, the wife of defendant, to settle with her; and that he made an offerof compromise. Dr. Dakin was called as a witness for defendant, and testified that he told plaintiff that he had advised Mrs. Allen to settle the matter up. Counsel for defendant then moved to strike out all the evidence in regard to this compromise. The circuit court denied the motion. In its charge to the jury the court said:
“ There was some testimony in regard to an offer of compromise. As far as that question is concerned, as te Dr. Dakin being authorized by the defendant to make an offer, that cannot form the basis of an action. Of course, you have a right to consider that with all the other testimony in the case.”
This evidence was wholly incompetent. Offers of compromise cannot be considered as an admission of liability. The court should have excluded this testimony from the consideration of the jury.
For this error judgment must be reversed, and a new-trial ordered, with the costs of this Court.
The other Justices concurred. | [
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Morse, J.
This is a proceeding by quo warranto. The information is in the usual form, and charges:
1. That, by virtue of the charter, ordinances, rules, and regulations of the city of Adrian, four policemen were authorized for said city, and only four.
2. That the four relators had been duly appointed to hold and perform the duties of such policemen; that each had duly qualified and filed his- "bond, as such officer; and that they are still lawfully entitled to hold said positions.
3. That the four respondents had, without any authority of law, intruded themselves into such positions, and continued to hold the same, without any warrant of law.
Besjmndents demur, and assign six special causes of demurrer, viz. :
“ 1. The alleged office of policeman of the city of Adrian is not an office created by the State.
“2. The alleged office of policeman of the city of Adrian is not an office for which an information in the nature of a quo waricmto can be maintained.
“ 3. The position of policeman of the city of Adrian is not an office.
“ 4. The four defendants in this case cannot properly be proceeded against in one information.
“5. The case is not one in which the relators can establish their own titles to said alleged offices of policemen of the city of Adrian.
“ 6. There is no such office as the four policemen of the city of Adrian.”
The ease is submitted to us upon this demurrer, which the Attorney General contends is not sufficient in law.
The provisions of the charter of the city of Adrian (Act No. 384, Local Acts of 1887), as to police, are as follows:
The common council may, by ordinance, provide for a police force, and for the appointment by the mayor, by and with the consent of the council, of such number of policemen and night-watchmen as they may deem necessary for the good government of the city; and may authorize the ajopointment of sjmcial 23°bcemen by the mayor, “from time to time, when, in his judgment, the emergency or necessity may so require; and may provide for and appoint subordinate officers for the police and night-watchmen.” Section 148.
“The council may make and establish rules for the regulation and government of the police, prescribing and defining the powers and duties of policemen and nightwatchmen, and shall prescribe and enforce such police regulations as will most effectually preserve the peace and good order of the city. * * And the mayor is hereby authorized, whenever he shall deem it necessary for the preservation of peace and good order in the city, to appoint, and place on duty, such number of temporary ¡policemen as, in his judgment, the emergencies of the case may require; but such appointments, unless made in accordance with some ordinance or resolution of the council, shall not continue longer than three days.” Section 149.
The city marshal, subject to the direction of the mayor, as chief of police, has superintendence and direction of the police, subject to the regulations of the council. Section 150.
“The mayor may suspend any policeman or nightwatchman for neglect of duty, misconduct, or other sufficient cause, and the council may remove from office any policeman appointed thereto at any time.” Section 152.
It would seem that the number of policemen, their term of office, and their removal from office, is entirely within the will of the common council of the city. They may be appointed for one day, or for a year, and may be removed, at any time, without cause shown, from their position, by the common council. These persons, policemen and night-watchmen, are not mentioned in the city charter as city officers, and there is nothing in any of its provisions warranting the claim that they are to be considered as such officers. They are not required, unless it be by ordinance, to take any oath, or file any official bonds.
It is stated in the brief of relators, and not denied by the respondents, that the ordinance pertaining to city police provides:
“ Section 1. The Gity of Adrian ordains, that a city police is hereby established, to consist of the city marshal, who shall be chief of police, and such number of policemen as the common council from time to time determine.
“ Sec. 2. The policemen shall be' appointed by the mayor and city marshal, by and with the advice of the common council. Every policeman, before entering on the duties of his office, shall take the oath of office prescribed by the Constitution of this State, and shall also (except in the case of special policemen appointed for temporary duty) give bond to the city of Adrian in the sum 'of one thousand dollars, with good and sufficient sureties, to be approved by the mayor, conditional for the prompt and faithful performance of the duties of his office, and shall file such oath and bond with the city clerk.”
¥e shall take it for granted that this is the ordinance. It is contended by counsel for relators that sections 18 to 21 of said charter, corresponding with How. Stat. §§ 2428, 2430, 2433, 2436, apply to these policemen as appointed officers of the city. These sections are as follows:
“ Sec. 18. Appointments to office by the council, except appointments to fill vacancies, shall, unless otherwise provided, be made on the first Monday of May, in each year; but appointments which, for any cause, shall not be made on that day may be made at any subsequent regular meeting of the council.
“Sec. 19. The mayor, city marshal, city clerk, city treasurer, city collector, street commissioner', supervisors, and constables shall hold their offices for the term of one year from the second Monday in April of the year when elected, and until their successors are qualified, and enter upon the duties of their offices. One justice of the peace shall be elected annually for the term of four years from the fourth day of July next after his election. ■
“Sec. 20. At the first election of aldermen in new wards, one alderman shall be elected in each ward for the term of one year, and one for the term of two years. 'The term of each shall be designated on the ballots cast for him. After the first election, one alderman shall be ■elected annually in each year for the term of two years from the second Monday in April in the year when elected, and until his successor shall be qualified, and enter upon the duties of his office.
“Sec. 21. All other officers appointed by the mayor or council, except officers appointed to fill vacancies in elective offices, shall hold their respective offices until the. first Monday in May next after such appointment, and until their successors are qualified, and enter upon the duties of their office, unless a different term of office shall be provided in this act, or by ordinance duly enacted.”
And that, consequently, as we deduce from their argument, they must be appointed' on the first Monday in May, or at some subsequent regular meeting of the council, and hold their offices until the first Monday in May next after such appointment, and until their successors ■are qualified, and enter upon the duties of their office. We are satisfied that the policemen and night-watchmen do not come under these provisions of the statute at all, and that their tenure of office is regulated by the will of the common council solely.
We do not think the position. of policeman, under these circumstances, is such an office as authorizes the Attorney General to file an information by quo warranto in this Court to test the title to the position. It was said in People v. DeMill, 15 Mich. 182, that,—
“There are grades of positions denominated 'offices'” which do not rise to the dignity of being entitled to the notice of the Attorney General by information.” See, also, Throop v. Langdon, 40 Mich. 686.
It is certain that the intent of the charter is that these- policemen shall be subject to the orders and direction of the common council, and that such council has the power at any time to remove them. It would, therefore, be useless for the Attorney General, on the relation of any one of them, to undertake to determine who was entitled to the position, as, before the matter was judicially determined, the council could, at once and forever, end the controversy'by removing one and appointing the other, or by ignoring both contestants, and putting a third person in the place. It was held in Portman v. Commissioners, 50 Mich. 258, that the Superintendent of Fisheries of the State of Michigan was not an “officer,” within the meaning of the Constitution and laws of this State. This opinion was founded on the fact that he was subject to the orders and directions of the Board of Fish Commissioners, and removable at their pleasure.
We are also of the opinion that in any event the four respondents in this case could not properly be joined in one information. The title of one does not depend upon the title of any other, and, if it were a case for procedure by quo warranto, each would be entitled to be proceeded against singly.
The demurrer is sustained, and the proceedings dismissed, with costs against the relators.
The other Justices concurred. | [
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Cahill, J.
The complainants are the owners of, and occupy as residence property, lands in the northern part of the city of Detroit, lying between Trumbull avenue and Twelfth street, and between Merrick avenue and Kirby street. • The neighborhood is a new one, as a residence part of the city, the complainants having for the most part moved there within a year prior to the filing of their bill in 1887.
In the spring of 1886, the defendant had erected a slaughter-house on the south-east corner of Twelfth and Kirby streets, the cost of which was something over $4,000. Before doing so, he testified that he had -acquired permission from the common council. In the near neighborhood were King’s cattle-yards and Wreford’s slaughter-house, both of which had been in operation some years. Defendant was engaged principally in slaughtering hogs. The hogs were received by rail, and were unloaded from a side track near the slaughter-house to the number of about 300 a week. They were usually kept in the yard at least overnight, and sometimes 2i hours, to cool off before killing. Sometimes car-loads of hogs intended for King’s stock-yards, as well as for the defendant, would stand upon the track for several -hours at a time, and would make considerable noise by squealing.
Complainants allege in their bill that the swine confined in defendant’s yards produce a large amount of manure and filth, and give off an offensive, sickening, and unwholesome stench, and that at times it becomes so unendurable that the inhabitants, of whom complainants form a part, are compelled to leave their homes; that the confined swine make a great disturbance and noise by squealing so loudly as to awaken persons from sleep, and so constantly as to disturb inhabitants at all times, both day and night. It is alleged that, in consequence of the business carried on by defendant, the land in the vicinity has become depreciated in value; and complainants charge that the stench arising from said swine, and from the drying hair taken from the slaughtered hogs, and from the said -slaughter-house, constitutes a nuisance, and that the noise and disturbance made by said swine in confinement constitutes a nuisance; that such nuisances are greatly injurious to the health, comfort, and property interests of the complainants; that the injury to the complainants5 health and comfort cannot be measured by monetary value; that the injury to their property interests is upwards of $5,000; and that for such injury to their health, comfort, and property, they are without any adequate relief except in equity.
The prayer of the bill is for preliminary and perpetual injunction to restrain defendant from further using or employing his property for a slaughter-house, wherein to slaughter swine, or any other animals, and from employing the same for the purpose of confining therein quantities of swine or other animals for the purpose of slaughtering them, and for using the same or any part of it as a drying-yard for drying hair or bristles taken from the slaughtered swine; also for general relief.
Defendant answered, admitting that he owned and operated the sjaughter-house at the place stated in the bill, and for purposes substantially as charged,' but denied that the place was uncleanly, or gave out noisome or unwholesome smells, or that the same was a nuisance in any way. Says that the slaughter-house had been erected, and was carried on, after the newest and most approved methods, and was kept as clean as is possible for such a place to be kept; that it had been constructed expressly for the purpose for which he was using it, and that if he should be prevented from making such use- of it the value of the property, amounting to about $5,000, would be almost wholly destroyed; that, when defendant bought and built there, there were very few buildings in the neighborhood; and that, as yet, the neighborhood was sparsely settled.
The case was heard before Hon. George S. Hosmer,. circuit judge, a large number of witnesses being,examined on each side, and, the testimony being very conflicting. Upon the part of the complainants, the testimony tended to show that . the people living in the vicinity of the-defendant’s slaughter-house were annoyed, especially during the summer months, by offensive smells coming from the direction of the defendant’s place; that these smells-were in some instances so offensive as to make the parties sick. , It also appeared that people were kept awake at night by the squealing of hogs confined in defendant’s yard. It does not clearly appear from the complainants’ proof, however, whether the offensive smells of which they complain were such as were necessarily connected with a slaughter-house for the slaughtering of hogs maintained in a proper manner, or whether such smells were due to the improper conduct of the business, and in consequence of defendant’s neglect to-keep the place in as clean a condition as the same could be kept with proper care. There was evidence tending to show that defendant was in the habit of spreading the hair scraped from the slaughtered hogs upon the ground to dry before sending the same to market, and some of the witnesses thought that much of the unwholesome smell came from this hair.
On the part of the defendant, the testimony tended to show that great care was „used by defendant to keep the place clean and wholesome; that the manure and other offal was removed every day by wagons to a distance in the country; that much of the noise with which complainants found fault came from the squealing of hogs standing in cars on the track intended for King’s stockyards. A considerable number of witnesses called by the defense, who lived in the neighborhood where defendant’s business was carried on, testified that they had never noticed any offensive smells, and were never disturbed by the squealing of hogs.
The court below found asa fact that, in the prosecution of the business conducted by the defendant he has, at various times, been guilty of maintaining a nuisance in the noxious and offensive odors from the confined swine, and from swine in the process of being slaughtered, and has also been guilty of maintaining a nuisance in the offensive odors from the drying hair and bristles taken from the slaughtered swine, and that at times, depending on the state of the weather or the direction of the wind, such nuisances have been unbearable. The decree, however, did not order the defendant to cease using the place as a slaughter-house altogether, but ^"decreed that defendant refrain from using or employing the buildings and sheds erected on defendant’s premises for the purpose of a slaughter-house wherein to slaughter hogs in ' such a way as to he offensive to, or become a nuisance to, the complainants; and that defendant desist and refrain from using or employing the said inclosure or buildings for the purpose of confining therein quantities of swine or other animals in s%ich a way as to he offensive to, or to he a nuisance to, the complainants, or any of them; and that defendant desist and refrain from using said inclosure, or any part thereof, as a drying-yard in which to dry hair or bristles taken from the slaughtered swine.
The complainants were given leave to apply to the court for a further order enjoining or restraining defend ant from using his premises in any wise for the purpose of slaughtering or confining swine, if it shall appear that the further use of said buildings and inclbsure by said defendant be offensive or noxious to the complainants, or any of them, because of the noises arising from the swine, or because of disagreeable odors arising from the inclosure [paused by confining swine therein.
From this decree, complainants and defendant have appealed.
On the part of the complainants, it is insisted that the decree falls short of giving them the relief to which they are entitled, because, having adjudged the defendant's business to be a nuisance, such judgment was not followed by an injunction perpetually restraining defendant from further carrying on such business. ' On the part of defendant, it is claimed that the complainants were not entitled to any relief under their bill and the proofs made, for the reasons:
1. That it does not appear from the bill that the defendant is maintaining such a business as is a nuisance per sej that" it does not appear from the bill but that the offensive odors arise from causes which can be remedied without any serious interference with the conduct of defendant's business; that there is no allegation in the bill, and substantially no proof, that defendant's slaughterhouse is of itself a nuisance.
2. It is claimed that the decree gave no relief to complainants, and that, upon facts found by the circuit judge, the bill ought to have been dismissed.
Without attempting to review the voluminous testimony in this record, we have arrived at the following conclusions:
1. That defendant's business is not of such a character as, when properly conducted, to constitute a nuisance in the neighborhood where it is situated. This is practically conceded by complainants; and, if it were not, we should not be willing to hold, as a matter of law, that a business so necessary and important as that in which defendant is engaged, and which his own profit and the convenience of the city require should be conducted within reasonable distance of the market which he supplies, was of necessity a nuisance, independent of the manner in which it was conducted.
2. The noise made by the hogs kept in confinement for the purpose of slaughter, being to some extent unavoidable, does not constitute such a nuisance as would justify a court of equity in destroying defendant's business, for the sole purpose of ridding a neighborhood of such noise. We do not intend by this to intimate that we regard the squealing of pigs as a soothing sound. We have no doubt that such noises are more or less annoying to some people, depending somewhat upon their peculiar temperament. Some of complainants' witnesses testified that they did not notice the squealing of the pigs, which annoyed other members of the family. But in this age of steam and iron, the squealing of a pig is scarcely to be heard amid the multitude of greater noises that everywhere assault the ear. Within a short distance of defend, ant's place, and nearer to some of complainants than the slaughter-house, are the railroad tracks, over which run the engines with their shrieking whistles, louder than the squealing of a thousand hogs in chorus, and their automatic bells, rung at all times of the day and night, and yet none of the complainants would think of removing the railroad from their neighborhood because of the distressing noises which arise therefrom.
3. Complainants are not entitled to a decree which would interfere with defendant's business on the ground that the existence of it in that neighborhood depreciates the value of their property. As to such injury, if any, complainants have an adequate remedy at law. Wood, Nnis. (2d ed.) 946; Attorney General v. Nichol, 16 Ves. 342; Zabriskie v. Railroad Co., 13 N. J. Eq. 314; 2 Story, Eq. Jur. § 925.
4. We are satisfied that defendant has not, at all times, conducted his business with as much care to cleanliness as he ought. His counsel urged that the testimony fails to locate any offense arising from the slaughter-house proper. If this be granted, we fail to see the force of it. Complainants are not required to discriminate nicely as to the origin of offensive smells. The evidence is convincing that they come from defendant’s place of business, and his business must be regarded as including all that is incident to it. The defendant insists that this business can be carried on so as not to be injurious to the health, or seriously offensive, to complainants. The decree of the circuit court recognized this possibility, and undertook to give defendant time and opportunity to abate the nuisance complained of without requiring him to stop his business altogether. vThe trouble with the decree is that it fails to point out specifically what defendant is required to do in order to comply with its requirements. To adjudge that defendant should so conduct his business as not to be offensive is to give him no rule of conduct which the law had not before prescribed. The decree should have specifically pointed out the things that defendant was required to do, and to refrain from doing, in order to abate the nuisance which the court found to exist, j
5. Defendant’s business, established under the circumstances of this case, and conducted by him on his own premises, will not be enjoined because it cannot be carried on without some degree of offense and annoyance to those living near it. It is only when it reaches the point of discomfort where it becomes injurious to health that the injury can be said to be irreparable so as to call forth the extraordinary power of a court of chancery to destroy it. So careful is the law of human life and health that no consideration of mere property rights can be allowed to weigh against them. As to other wrongs, they can, for the most part, be compensated in damages. In the recent case of People v. Lead Works, 82 Mich. 477, the rule in a case at law was .stated by Mr. Justice Grant as follow:
“The defendants cannot be protected in the enjoyment of their property, and the carrying on of their business, if it becomes a nuisance to people living upon the adjoining properties, and to those doing legitimate business with them. Whenever such a business becomes a nuisance, it must give way to the rights of the public, and the owner thereof must either devise some means to avoid the nuisance, or must remove or, cease the business. It may not be continued to the injury of the health of those living in its vicinity. This rule is founded both upon reason and authority. Nor is it of any consequence that the business is useful or necessary, or that it contributes to the wealth*and prosperity of the community. Wood, Nuis. § 19; Queen v. Train, 2 Best & S. 640; Works v. Railroad Co., 5 McLean, 425; Respublica v. Caldwell, 1 Dall. 150; Ross v. Butler, 19 N. J. Eq. 296; Robinson v. Baugh, 31 Mich. 290.
“It is true that, in places of population and business, not everything that causes discomfort, inconvenience, and annoyance, or which, perhaps, may lessen the value of surrounding property, will be condemned and abated as a nuisance. It is often difficult to determine the boundary line in many such cases. The carrying on of many legitimate businesses is often productive of more or less annoyance, discomfort, and inconvenience, and may injure surrounding property for certain purposes, and still constitute no invasion of the rights of the people living in the. vicinity. Such a case was Gilbert v. Showerman, 23 Mich. 448. ”
In Cleveland v. Gas Light Co., 20 N. J. Eq. 205, the rule was stated more broadly:
“Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort physically of human existence, is a nuisance that should be restrained; and smoke, noise, and bad odors, even when not injurious to health, may render a dwelling so uncomfortable as to drive from it any one not compelled by poverty to remain. Unpleasant odors, from the very constitution of our nature, render us uncomfortable, and when continued or repeated make life uncomfortable. * * * The only question is, what amounts to that discomfort from which the law will protect? The discomforts must be physical, not such as depend upon taste or imagination.”
This language was used in a case where the court was asked to restrain the defendants from erecting or carrying on their gas-works at the place at which they had begun to erect them or in the neighborhood of that place, and although the court declined to grant the injunction on the ground that it did not clearly appear that the works, c‘ when completed, would be a nuisance,” the foregoing rule was clearly stated as one that would govern the court in dealing with the company should complaint afterwards be made. The facts in that case were that defendants proposed to erect their gas-works in a populous residence portion of the city of Newark, and such a case is to be distinguished from this, where defendant erected his place of business at the outskirts of the city, and in a locality where similar kinds of business were already established. Most of the complainants had moved into this neighborhood since the defendant’s business was established; and, although they have a right to be protected from nuisances that endanger the health of themselves or their families, a court» of equity, in determining whether it will destroy defendants business at their request, will consider whether the thing complained of is noxious or only disagreeable, and in the same connection will consider the fact that complainants have voluntarily put themselves into the disagreeable neighborhood. The rule here contended for is recognized by our statute concerning the abatement of nuisances. How. Stat. § 1643.
binder the general prayer for relief, complainants are entitled to a decree requiring defendant to remove from his premises every day all manure, blood, offal, hair, and other refuse of his establishment in covered garbage wagons, such as are in use by the board of public works in the city of Detroit, or in other wagons that will effectively avoid the spread of offensive odors; to thoroughly clean, cleanse, and disinfect his premises daily; to provide sufficient pens for the hogs in store, so that they Bhall not be crowded and rendered noisy and quarrelsome by discomfort while in confinement; and to use such other precautions as are necessary to render his place of business clean and wholesome. J
No costs will be awarded to either party in this Court. The decree below as to costs is affirmed.
Champlin, C. J., and Long, J., concurred. Morse and Grant, JJ., did not sit. | [
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] |
Grant, J.
One Frederick Gadsby brought suit in justice’s court against the plaintiff. The justice placed the summons in the hands of the defendant, Bryant, for service. Bryant was not an-officer. • The defendant served and returned the summons. Plaintiff appeared specially, and moved to quash the suit for want of jurisdiction. The justice overruled the objection, and judgment was rendered against the plaintiff. Plaintiff then took a special appeal to the circuit court, which sustained the judgment in the justice’s court. Plaintiff thereupon appealed to this Court, and the judgment was reversed. Gadsby v. Stimer, 79 Mich. 260. The costs of the plaintiff in that suit were taxed at $130.03.
After the decision of this Court in that case, plaintiff brought this action on the casé. His allegations of liability are—
1. That the defendant, contriving and wrongfully, wickedly, and unjustly intending to injure the said plaintiff, and to deprive him of his private and public credit and the quiet enjoyment of his property, did unlawfully, wrongfully, wantonly, and without any authority whatever so to do, serve upon said plaintiff a summons, — describing the summons in Gadsby v. Stimer.
2. That said defendant, knowing that said justice had no jurisdiction in said cause, did wrongfully, unlawfully, and negligently testify therein, and by his evidence wrongfully, unlawfully, and negligently aided, assisted, and caused said justice to render judgment against him for $25 damages, and $3.43 costs of suit.
3. That said defendant also with like negligence testified upon the trial in the circuit court.
The declaration then alleges that Gadsby has neglected and refused to pay the costs of that suit, and owns no property subject to execution, and therefore plaintiff claims the right to recover these costs-against the defendant. The defendant demurred to the declaration, alleging that it sets forth no cause of action. The demurrer was sustained, and plaintiff appeals.
It is difficult to see upon what ground the defendant could be held liable for the service of a summons held to be valid by both the justice’s and circuit, courts. It is more difficult to see upon what theory of the law the defendant could be held liable for apjrearing as a witness in the case. The declaration does not make out a case of "malicious prosecution. It does not set out that Gadsby had not a good cause of action against plaintiff. That issue does not appear to have been made, the plaintiff choosing to rely upon the alleged invalidity of the service, which was finally decided in his favor. It does not allege that the process was illegally or in^rovidently sued out; nor that the suit was instituted with malicious intent; nor that plaintiff had any defense to the action; nor that the justice acted in bad faith; nor that there was any concert of action between defendant and Gadsby to injure plaintiff; nor that the defendant’s testimony was untrue; nor that he in any manner influenced -the decision of the justice or of the circuit court in sustaining the validity of the service. There is no allegation in the declaration of any violation of legal duty to the plaintiff, nor of any wrongful conduct for which the defendant can be held liable. All the damages suffered by the plaintiff were the result of the decisions of the courts in holding that the service of the summons was-legally made. For these damages the jdaintiff has received the full benefit of the only remedy afforded by the law, viz., judgment for costs.
Judgment affirmed.
The other Justices concurred. | [
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] |
Long, J.
The relator is a corporation organized under chapter 95, How. Stat., which provides for the organization of street railway companies.
Section 13 of the act provides that such railway company organized under the provisions of the act may, with the consent of the corporate authorities of the city given in and by an ordinance duly enacted for that purpose, and under such rules, regulations, and conditions as in and by such ordinance shall be prescribed,—
“Construct, use, maintain, and own a street railway for the transportation of passengers, * * * but no such railway company shall construct any railway in the streets of any city or village until the company shall have accepted in writing the terms and conditions upon which they are permitted to use said streets.”
Section 14 of that chapter is as follows:
“After any city, village, or township shall have consented, as in this act provided, to the construction and maintenance of any street railways therein, or granted any rights and privileges to any such company, and such consent and grant have been accepted by the company, such township, city, or village shall not revoke such consent, nor deprive the company of the rights and privileges so conferred.”
The relator sets forth in the petition that, on October 24, 1889, an ordinance was granted by the common ■council of the city of Grand Eapids to Samuel Mather and others, and their associates, to be afterwards organized into a body corporate, authorizing them to maintain and use street railways in certain streets in the city of Grand Eapids; that the corporation was organized and the ordinance accepted by the corporation, and that the company was organized to operate a street railway system already constructed in the main, constituting various lines of street railway in said city, having definite termini, and that cars had been run over said routes for a long time, under definite authority by ordinance granting permission to the Street Railway Company of Grand Rapids, to whose rights the relator had succeeded; that on December 16, 1889, another ordinance was granted to the same parties, authorizing them to maintain street railways in other streets of the city, which ordinance has been accepted by the relator, and the rights granted in this ordinance have also been assigned to relator. It is further claimed by relator that in each o'f said ordinances, by sections 5, 7, and 15, it is provided as follows:
“Sec. 5. The cars to be used on said railway shall be drawn by electricity, or such motive power as may seem best to said company, and permission and authority are hereby given to said grantees and their assigns to place and erect in the streets of said city, on either side thereof, wherever their street railway tracks are constructed, suitable poles for suspending electric wires through and over said streets, the kind and pattern thereof to be approved by the common council of said city before the same are erected; to place in and over said streets wares and cables for the purpose of conducting electricity thereon, suitable and necessary insolating appliances, and suspension wires or cables.”
“Sec. 7. The rate of fare on said railway shall be determined by said company, and shall not exceed five cents for each passenger on any car from its starting-point to the terminus of its route, and satchels in the possession of passengers shall be carried free of charge: Provided, that for extra cars, specially chartered, the said grantees may fix the rate of fare.”
“ Sec. 15. It is hereby reserved to the common council of said city the right tó make such further rules, orders, and regulations as may, from time to time, be deemed necessary to protect the interest, safety, welfare, or accommodation of the public in relation to said railway, and the streets through which it pss?es.”
It is further set forth in the relator’s petition that in July last it petitioned the common council to approve of the kind and pattern of poles to be used in its system, and submitted plans to the council; that the subject was referred to the committee on streets, which committee reported that they, after carefully examining the proposed poles, recommended for adoption and approval of the common council the following:
"1, Iron poles, to be the E. P. Morris poles, or an iron pole of the same dimensions, and substantially like said E. P. Morris poles, and all of equally good workmanship, finish, and style.
“ 2. For the wooden poles the octagonal red pine pole, as manufactured'by Browlee & Co., or a wooden pole substantially like said Browlee & Co.’s pole as to material, dimensions, style, and finish,” etc.
That on July 20, 1890, the committee made a further report, in which it was recommended that the fire limits of said city, as now csmstituted, be designated as the district wherein iron poles only should be used, and that iron or wooden poles could be used in all parts of the city outside of the fire limits, at the option of the railway company; and that on July 28 said report was amended by adding the following thereto:
“ And, in consideration of granting said street railway company the privilege of erecting said wooden poles in certain public streets of the city, said company shall be required to furnish its patrons, through its conductors, drivers, or agents on or in charge of their several street-railway cars, without additional cost, transfer tickets on the following named lines, namely: Cherry street and Eighth ward line; West Bridge street and Ionia line; Wealthy avenue and Scribner street line; passengers to be, on demand, furnished with transfer tickets good on the so-called Hall street and Plainfield avenue line, and said Hall street and Plainfield avenue line passengers to be, on demand, furnished with transfer tickets good on the above enumerated lines, namely: Cherry street and Eighth ward line; West Bridge street and Ionia line; Wealthy avenue and Scribner street line. And thereupon said report of said committee was by said common council adopted.”
The petition sets forth further, in substance, that on August 18, 1890, and on September 28, 1890, the railway company asked the council to approve of the kind and pattern of pole to be used in the construction of the railway line, and. that the common council have taken no action thereon.
The respondent makes a return in which it admits the making of such ordinances, the organization of the relator as a. corporation, the acceptance of the ordinances by the corporation, and that the ordinances are correctly set forth in the relator’s petition. It is claimed, however, that no definite and various lines of street railway having -definite .termini were established, but the right was given to the street-railway company to operate a street railway over the streets theretofore occupied by several street-railway companies, as one route, and nowhere in said ordinances were various routes having different termini fixed or specified, but that the.entire system constituted ■one route.
It is claimed, on the part of the relator, that the condition annexed by the common council to the permission to erect wooden poles in all parts of the city outside the fire limits, as adopted by the. council on July 28, 1890, is invalid, and beyond the power of the council to prescribe; that the action of the council shows that it is not necessary to erect iron poles outside such fire limits, but the-condition upon which the relator is permitted to erect the wooden poles in such territory is an effort on the part of the city to drive a bargain with the relator, and compel it to accept this condition in consideration of the. common council doing. precisely what it shad already agreed to do by its ordinance, and what it was bound to do; that is, to fix the kind and pattern of poles-to be used. The,prayer of the relator is that the common council be required to proceed to approve of the kind and pattern of poles to be used by the relator for the purpose of operating its road under the right granted it by the ordinances.
We are satisfied from an examination of the ordinances:
1. That by section 5 it was the duty of the common council to fix and determine the kind and pattern of poles to be erected and used by the relator.
2. That the common council have so fixed and determined the kind and pattern of such poles by its resolution of July 28, 1890; that is, iron poles within the fire limits-of said city, and wooden or iron poles outside of said-fire limits.
3. That the condition attached to the use of wooden-poles outside of such fire limits is wholly inoperative and void, and beyond the power of the council to prescribe. This condition is in direct conflict with section 14, chap. 95, How. Stat., and is an attempt to deprive the relator-of the rights and privileges - conferred by the ordinances theretofore adopted, and the terms of which it is conceded the relator had duly accepted.
As the council has already done what the relator prays it may be compelled to do, the writ of mandamus must be denied.
Chamrlin, O. J., and Grant, J., concurred with Long, J.
Cahill, J.
I think the common council has the right, under the powers reserved in the ordinance, to impose the conditions which it has sought to impose upon the relator as a condition precedent to its approval of the kind of poles to be erected. Neither do I think that the resolution as passed, with the condition annexed, can be treated as though passed without it, on. the theory that such condition is void.
Morse, J., concurred with Cahill, J;
See Detroit v. Railway Co., 37 Mich. 558. | [
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] |
Champlin, C. J.
This was an action of assumpsit brought by the plaintiff, who is a physician, a druggist, and grocer, to recover for medical services, drugs and medicines, and groceries furnished to”the defendant.
It appeared upon the trial that the defendant was a married moman living with her husband, and that they had six children, all under 21 years of age. The action was upon an open account, which, by the bill of particulars, appears to have originated in 1876, and to have extended down to the time of the commencement of suit, a period of nearly or quite 14 years. The plaintiff showed that he, at or about the time .the account was opened, was sent for as a physician to attend upon some ■one of the family of the defendant; and that, in response to such call, he went to the family, and at that time had a conversation with the defendant. He proposed to show that he would not have "rendered his services or sold or delivered any goods to the defendant or her family upon the credit of her husband, for the reason that he was not worthy of credit, and was without-means. He stated that he expected to be able to show that at the time the plaintiff went there the defendant stated that her husband was entirely irresponsible, and that she would become responsible for his pay; and that, relying upon that promise to pay, he rendered the services and procured the drugs in pursuance of that contract with him, — that the husband was entirely irresponsible, and he need not look to him, and she would see that he had his pay. He also proposed to show that, upon the services being rendered and the goods sold and delivered to the defendant for her family, he gave the credit upon his books directly to the defendant; and that he would not have rendered the services or parted with the property-on the credit of the husband.
The court, upon these propositions being made, stated that he understood the rule to be that, before liability could attach, it must appear that the husband actually did refuse, or its equivalent, to furnish necessaries for the family, and that the wife could not be made liable unless such was the case. It appears from the testimony also, it may be added, that the defendant was possessed of property in her own name and right.
The question involved in this case was recently before this Court, and an opinion handed down on November 14 last, in the case of Hirshfield v. Waldron, 83 Mich. 116, and it will -not be necessary in this case to enter into any extended discussion of the proposition with reference to the power or authority of a married woman to make a binding contract with reference to the purchase of goods or for services to be performed, where she makes it in her own behalf, and upon her own express agreement to pay for such services or goods, and where she or some member of her family derives the benefit of such purchase or services.
We think the judge erred in excluding the testimony, and the judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Morse, J.
This case has been in this Court once before, and will be found reported in 78 Mich. 209.
The plaintiff sues for damages occasioned by her foot being caught iñ a hole in the sidewalk upon the east side of Jefferson street, in Bay City, at a point about midway between two gates, leading into the county jail premises, the gates being 75 feet apart. Two facts are settled beyond dispute by the record:
1. That the plaintiff was injured by getting her foot into a hole in the sidewalk in the locality described in her declaration.
2. That there was no proof that any officer of the city had actual knowledge of the existence of this hole prior to the accident.
There is no claim of any contributory negligence on the part of the plaintiff, and the main issue, therefore, was whether the hole had existed in the sidewalk so long that the city was in duty bound to take notice of its existence. Some errors are assigned upon the admission of testimony which we do not deem necessary to discuss, and we shall, therefore, only consider such alleged errors as seem to us to present matters, of general importance, which may be likely to arise in other cases of a similar nature to the one in hand.
The accident to pIaintiff*occurred on December 6, 1887. The- law of 1887, creating a liability in cases of defective sidewalks, was considered by the court and all parties in the court below as taking effect September 28, 1887. Testimony was introduced on the part of the plaintiff tending to show that the defect in the sidewalk, of which she complained, existed in the months of May, June, July, and August, 1888. .This testimony was objected to, and the court was asked to instruct the jury that they could not consider the evidence as to the condition of the sidewalk in those months, because at that time the city was not liable for any defects in the sidewalk. This request was properly refused. If this hole existed prior to September .28, 1887, and continued up to December 6, 1887, the city was not only bound to take notice of it, but in law had ample time between these last two dates to repair the sidewalk. The defendant was not authorized to leave the sidewalk as it was on the day the law took effect. If, after that, the city continued to maintain the sidewalk, it was its duty to put it in good repair, and to keep it reasonably safe for public travel; and the length of time it had been out of repair was a legitimate subject of inquiry, without reference to the date that the law went into effect.
Objection is also made that testimony was admitted of the condition of the walk at other places than were the injury occurred. The evidence was not only confined to the space between the two gates, but to near the middle of such space. The testimony developed that there ivas more than one hole there, and some of the witnesses, not knowing in which hole the' plaintiff was injured, were interrogated on both sides as to the location of the holes they observed; but the jury were instructed that plaintiff could not recover unless the city had knowledge, actual or constructive, of the identical hole into which the plaintiff stepped, and the existence of the other holes was not permitted to be used to show notice of this particular defect. There was therefore no error in the admission of this testimony.
The defendant’s counsel asked the following instruction to the jury:
“ If you find that the street commissioner went over this walk within two weeks previous to the accident, that he looked out for defects in a careful manner, and did not see this defect, and had no actual knowledge of its existence, then he used such care and diligence as was required of him, and the city is not liable.”
The request was given by the court, with the following addition:
“ But in determining the fact whether he did go over it within two weeks, and did look out for defects in a careful manner, and did not see this particular defect, you may consider all the testimony in the case as to the existence of the hole previous to the time he went over the place, and, if you find the hole, was there when he examined it, you may consider that in determining whether he did use due care.”
This addition was good law, and_ very properly made under the circumstances, there being testimony in the case that the hole had been there for months.
Some other remarks were made by the court in regard to this request which are objected to by the defendant, but such remarks were withdrawn-by the court, and the law subsequently stated as above. We do not think we can predicate error upon the remarks that were withdrawn by the court, as we cannot find, upon a review of the whole case, that the defendant could have been prejudiced thereby; nor are we prepared to say that the remarks objected to would have been error if they had • been permitted to stand as a part of the charge. The court also told the jury that—
“Notice could not be inferred or presumed unless the defect was open and notorious, or of long standing, and of such a character as would naturally arrest the attention of persons passing by.”
The case was very fairly tried, and the charge of the court was a remarkably clear and full exposition of the l,aw bearing upon the issues involved. .
The judgment is affirmed,, with costs.
The other Justices concurred.
Act No. 264, Laws of 1887.
Counsel for appellant cited the former opinion in this case, and Dundas v. Lansing, 7 5 Mich. 499. | [
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Champlin, O. J.
The Legislature, at its biennial session of 1889, passed an act numbered 254 (3 How. Stat. p. 2835), entitled—
“An act relating to the election of Eepresentatives to the State Legislature in districts where more than one is to be elected.”
Sections 1 and 2 of said act read as follows:
“Sec. 1. The People■ of the State of Michigan enact, That, in all elections of Eepresentatives to the State Legislature in districts where more than one is to be elected, each qualified elector may cast as many votes for one candidate as there are Eepresentatives to be elected, or may distribute the same among the candidates as he may see fit, and the candidates highest in votes shall be declared elected.
“’Sec. 2. The name or names of the person or persons for whom such elector intends to vote for as a Bepresentative to the State Legislature shall be written or printed, or partly written and partly printed, upon the ballot containing the names of the persons to be voted for for other State offices, and opposite the name of each person voted for as a Bepr'esentative to the State Legislature there shall be written or printed in plain figures the number of times the elector intends to vote for said person in whole numbers: Provided, That in case the total of the numbers opposite the names of the persons voted for exceed the total number of Eepresentatives to be elected from that district, the excess shall bo taken from the person so voted for lowest on the ticket, and, should there still be an excess, then from the next above, until the numbers correspond.”
Section ,3 repeals all laws and parts of laws inconsistent therewith. This act was approved by the Governor on July 3, 1889.
The city of Grand Rapids comprises one election district, and is entitled to elect two Representatives to the State Legislature. It is known as “ The First Representative District.” Fred A. Maynard, the relator, is an elector residing in that district, and in his petition, duly verified, in which he prays for a mandamus, states that on November 4, 1890, there were in said election district 14,272 qualified electors duly registered according to law, and entitled to vote for the officers then to be elected, and to elect two Representatives in the State Legislature; and that under, the laws of this State each of said electors ivas entitled to cast his vote for two Representatives in the State Legislature, one vote for each, or to cast for one person for Representative in said Legislature two votes, as the elector might see fit; that at said election 13,000 of said qualified electors voted for the several officers to be elected; that at said election 5 persons were voted for as Representatives, including relator; that the returns from the several voting precincts have been duly returned .and filed; that such returns show that, for the office of Representative, relator received 8,368 votes; Mr. White, 7,358; Mr. Hayward, 7,074; Mr. Thaw, 623 votes; and Mr. Belden, 1 vote; that the inspectors in several of the precincts counted and returned the cumulative votes for relator as single votes only; that the board of district canvassers met, and from the returns made a statement that, for said office of Representative, White received 7,258 votes; Hayward, 7,074 votes; Maynard, the relator, 5,374 votes; Thaw, 623 votes; and Belden, 1 vote, — and determined that White and Hayward were elected; that relator had the greatest number of votes, and was duly elected Representative; that he bases his claim to election upon the legality of said cumulative votes, and avers that if every ballot having his name only for Representative as aforesaid, with the statement “ two votes” opposite the name as aforesaid, shall be counted as two votes, then he received more than 10,000 votes for said office, and this exceeded the votes given for any other candidate. lie admits that, if said votes cannot be counted for him cumulatively, — that is, if every ballot having the statement “two votes,” as aforesaid, for him js legal only as one vote, and must be so counted, — then the said White and Hayward received a greater number of votes for Representative at said election than the relator. He prays for a mandamus to compel the board of district canvassers to declare him elected, and that the chairman and clerk certify the same.
The board of canvassers have answered, in which they deny that the cumulative votes cast for relator are legal, and deny that they should be counted. They set up that, previous to the election held on November 4 last, a convention of the Democratic party of the first representative district met, and placed in nomination Arthur S. White and John W. Hayward for the office of Representatives in the State Legislature, to be voted for upon a general ticket at the said election, and their names were so printed upon the 'tickets of that party; that a convention of the Republican party also met previous to the election, and placed in nomination only one person as Representative, and that person was Fred A. Maynard, the relator, and his name was printed upon the tickets of that party, with the words “two votes” opposite said name; that the ballots used at said election were furnished by the Secretary of State of the State of Michigan for that purpose; that the returns from every precinct show a large excess of votes cast over the number of voters listed in the poll-lists. These poll-lists show that 13,164 'electors voted in the city, and the return of votes shows that 23,799 votes wore cast, — an excess of 10,635 votes. The board claim that the act above recited is unconstitutional and void, and, so considering it, they disregarded it, and declared those persons elected who had received the highest number of votes, counting one vote to a ballot.
At the time of the argument, petitions for mandamus had been filed on behalf of' four persons who claim to have been elected by cumulative votes to the office of Representative in the city of Detroit, and counsel re|3resenting the parties in interest there were permitted to present their views upon the constitutionality of the law.
There has been in the latter half of the present century a growing desire to secure to minorities a proportionate representation in legislative and corporate bodies, and from time to time schemes have been advocated by those who have desired to bring about what they claim as a reform in existing modes of election to secure to the minority a just and proportionate representation. These schemes may all be reduced to four well-recognized classes, viz.:
1. ‘The “restrictive,” which requires a certain number to be -elected on one ticket, and prohibits any elector from voting for the whole number to be elected. Thus, if four are to be elected, no one can vote for more than two.
2. The “ cumulative,” which requires three or more to be elected, and permits the elector to cast as many votes as there are persons to be elected, and to distribute such votes among the candidates as the elector may choose.
3. The “ Geneva,” “ free vote,” or “ Gilpin ” plan. By this plan the districts are required to be large, and each party puts in nomination a full ticket, and each voter casts a single ballot. The whole number of ballots having been ascertained, that sum is divided by the number of places to be filled, and each ticket is entitled to the places in proportion to the number of votes cast by it, taking the persons elected from the head of the tickets. This plan doubtless comes the nearest to a proportional representation of the minority of any plan devised which is practical for popular elections. It was originated by Hr. Gilpin in 1844, who advocated it in a pamphlet published in' Philadelphia. It has never been adopted in this country,, but has become the liste libre of Geneva, and is said to work well in Switzerland.
4. The “ liare " plan, or “ single vote." This method is too intricate and tedious ever to be adopted for popular elections by the people. It requires successive counts and redistribution of the votes until an election is reached.
The effort to realize minority representation hy the use of the restrictive method was tried in Ohio, under an act passed in that state. The law was declared unconstitu. tional by the supreme court. State v. Constantine, 42 Ohio St. 437. That court held that it was the right of every elector to vote for every candidate or person to fill the offices provided by law to be elected by vote of electors, and a law which said that no person could vote for more than two of the four persons to be elected took away from the elector a substantial right guaranteed to him by the constitution.
In Pennsylvania, Mr. Buckalewe for many years advocated the adoption of the system of cumulative voting in order to secure minority representation; and, mainly through his efforts, in 1874 a provision was inserted in the constitution of Pennsylvania (article 16, § 4) permitting stockholders in corporations to vote cumulatively upon the shares of stock. It was held in Hays v. Com., 82 Penn. St. 518, that, as to corporations existing at the time the constitutional provision was adopted, the constitutional provision could not apply, because it interfered with and affected existing vested rights.
In 1870 the state of Illinois adopted a new constitution, which contains this provision (article 4 §§ 7, 8):
“The house of representatives shall consist of three times the number of the members of'the senate, and the term of office shall be two years. Three representatives shall be elected in each senatorial district at the general election in' the year of our Lord 1872, and every two years thereafter. In all elections of representatives aforesaid, each qualified voter may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same, or equal parts thereof, among the candidates, as he shall see fit, and the candidates highest in votes shall be declared elected.”
In Nebraska (article 11, § 5), in West Virginia (article 11, § 4), in Missouri (article 12, § G), and in California (article 12, § 12), by constitutional enactment, cumulative voting is permitted upon stock in corporations. So far as I am aware, Illinois is the only state which has tried the experiment of cumulative voting for members of the-legislature. It is significant that all the states which have authorized such voting have submitted it to the-people for their adoption as a part of the fundamental law. In Ohio the legislature endeavored to authorize it, without a constitutional amendment, and it was declared unconstitutional. In New York there has been legislation sanctioning such voting in certain cases;- and, although the question has been twice before the court, of appeals of that state, that court found a way of disposing of the cases in which the questions were raised without passing upon the constitutionality of the law. People v. Crissey, 91 N. Y. 616; People v. Kenney, 96 Id. 294.
Such has been the action of other states. Is the law contrary to the Constitution of this State? The provisions of the Constitution bearing upon this question are those relating to elections, and those to the election of Representatives. Article 7, § 1, prescribes the qualification of electors. It says: “In all elections, every male citizen * * * shall be an elector, and entitled to vote.” Section 2 provides that “all votes shall be given by ballot, except for such township officers as may be author izecl by law to be otherwise chosen.” Article 4, § 2,' provides that the Senate shall consist of 32 members. They shall be elected for two years, and by single districts. Each district shall choose one senator. No county shall be divided in the formation of Senate districts, except such county shall be equitably entitled to two or more Senators. Section 3 provides that the House of Eepresentatives shall consist of not less than 64, nor more than 100, members. Eepresentatives shall be chosen for two years, and by single districts. No township or city shall be divided in the formation of a Eepresentative district, but, when any township or city shall contain a population which entitles it to more than one Eepresentative, “then such township or city shall elect, by general ticket, the number of Eepresentatives to which it is entitled.” Section 34 provides that the election of Senators and Eepresentatives shall be held on the Tuesday succeeding the first Monday of November biennially. The first Constitution, adopted in 1835, was substantially the same, except that elections were annual. Senators and Eepresentatives were not required to be elected by single districts.
Laws were immediately enacted providing for elections, and the manner of conducting them, under which every elector was entitled to express his will as to the choice of rulers, and who should represent him in the Legislature, by depositing a ballot upon which his choice was indicated, containing the name of one person for one office; and if two ballots were found folded together in the box, or if any ballot included more than one name for any office, they were destroyed as fraudulent and illegal, and not counted. These laws were in force at the time of the adoption of the present Constitution, and have been continued in force ever since. They afford a practical construction of the right of every elector to vote for every officer to be elected, and that his vote shall be of equal effect with, and no more than, the vote of every other elector for every officer to be elected. Laws were passed, and exist to-day, punishing any elector for voting more than once for any candidate. Bepeaters and ballot-box stuffers were condemned under severe penalties. Such has been the Constitution and practical operation under it for more than half a century. More than this, such has been the practice by all the states of our Union under constitutional provisions similar to ours.
It was conceded upon the argument by counsel who appeared to defend the constitutionality of this law that, when the Constitution was adopted, no such thing was thought of as cumulative voting; that it is a recent invention; and that our people, when they adopted the Constitution, had no thought of investing the Legislature with the right of enacting a cumulative voting law; but they contend that, no matter what has been the uniform custom, the Legislature has the power to enact a cumulative voting law, or any other law that is not expressly or by plain implication forbidden them to do by the Constitution. The rules for construing the Constitution of this State have often been passed upon by this Court, and certain principles recognized in the performance of this duty. Thus, it has been said that, before an act of the Legislature can be declared by the courts unconstitutional, it must be prohibited by the exjjress words of that instrument, or by irecessary implication; and some members of the Court have gone so far as to say that, before you can declare the act void, you must be able to lay your finger upon the very language of the Constitution which prohibits the exercise of the power of the Legislature to enact the law. Scott v. Smart’s Ex’rs, 1 Mich. 295; People v. Gallagher, 4 Id. 244; Sears v. Cottrell, 5 Id. 251; Tyler v. People, 8 Id. 320; People v. Blodgett, 13 Id. 127; People v. Mahaney, Id. 481. The rule above announced has not been unquestioned, and in almost every case the result announced failed to secure the unanimous concurrence of the members of the Court.
In reaching a conclusion as to whether an act of the Legislature is prohibited by the express language or by necessary implication, and to enable the Court correctly to construe the Constitution, certain rules have been laid down for its guidance which will be now referred to.
“ Constitutions,” says Mr. Justice Cooley in the case of Bay City v. State Treasurer, 23 Mich., at page 506,' “do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberate action; and it cannot be permissible to the courts that, in 'order to aid evasions and circumventions, they shall subject these instruments, which in the main only undertake to lay down broad general principles, to a literal and technical construction, as if they were great public enemies, standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient. They -must construe them as the people did in their adoption, if the means of arriving at that construction are within their power.”
Chief Justice Ohristiancy, in Kennedy v. Gies, 25 Mich. 83, said:
“ In legal reasoning, and in the construction of constitutions and statutes, we are often compelled to content ourselves with conclusions somewhat less certain than those involved in mathematical axioms, because neither conventions nor legislatures always use language with mathematical accuracy, and neither the human mind nor human affairs will always submit to merely mathematical, rule. For various reasons, and - upon various grounds, ■exceptions or qualifications are sometimes implied, though not expressed.”
The learned Judge then instances cases where, if the Legislature should give to courts jurisdiction to try cases involving certain amounts or of a certain character, such act of the Legislature would not give such judge the right to try his own cause. In that case, also, he held that it was legitimate to inquire whether there was not something in the nature of the provision itself, considered in connection with the legislative and judicial history of the State, and the action of the convention which framed it, which might furnish a satisfactory inference that such an exception was intended, and should therefore be implied.
In People v. Harding, 53 Mich. 485, Mr. Chief Justice Cooley said:
In seeking for the real meaning of the Constitution, “we must take into consideration the times and circumstances under which the State Constitution was .formed, the general spirit of the times, and the prevailing sentiments among the people. Every constitution has a history of its own, which is likely to be more or less peculiar, and, unless interpreted in the light of this history, is liable to be made' to express purposes which were never within the minds of the people in agreeing to it. This the Court must keep in, mind when called upon to interpret it, for their duty is to enforce the law which the people have made, and not some other law which the words of the Constitution may possibly be made to express.”
In the ease of Attorney General v. Detroit Common Council, 58 Mich. 216, some views of our late associate, Mr. Justice Campbell, are of special significance as bearing upon the question under consideration. He said:
“It is needless to explain that under that instrument the whole scheme of government, in every department, depends upon the action of the qualified voters in their election districts. * * * All legislation imposing restraints or conditions upon voting must conform to the other clauses and provisions of the Constitution. No part of that instrument can be allowed to override of destroy any other part. * * * There is nothing in the Constitution which permits the Legislature, under the desire to purify elections, to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise. And as the right of voting is the same everywhere, it is obvious that the conditions regulating the manner of exercising it must be the same, in substance, everywhere. The machinery of government differs in its details in cities, villages, and townships; and of course it is unavoidable that there must be some differences in methods and officers to administer the election laws. But it cannot be lawful to create substantial or serious differences in the fundamental rights of citizens in different localities in the exercise of their voting franchises.”
In the light of these decisions there is in my mind no doubt that the act under consideration is unconstitutional. The Constitution is the outgrowth of a desire of the! people for a representative form of government. The foundation of such a system of government is, and always has been, unless the people have otherwise signified by their constitution, that every elector entitled to cast his ballot stands upon a complete political equality with every other elector, and that the majority or plu" rality of votes cast for any person or measure must prevail. All free representative governments rest on this, .and there is no other way in which a free government may be carried on and maintained. That the majority must rule, lies at the root of the system of a republican form of government no less than it does in a democratic. IVhen there are more than two candidates for the same •office placed in nomination, it may often happen that one candidate, although he may receive more votes than any other, may not receive a majority of the votes cast-Still the principle of majority rule is preserved, for in such case more of the electors prefer such candidate than they do any other particular candidate to represent them. It is the constitutional right of every elector, in voting for any person to represent him in the Legislature, to express his will by his ballot; and such vote shall be of as much influence or weight in the result, as to any candidate voted for, as the ballot and vote of any other elector. The Constitution does not contemplate, but by implication forbids, any elector to cast more than one vote for any candidate for any office. This prohibition is implied from the system of representative government provided for in that instrument.
The political history of the State from 1836 to the present time shows that every elector has an equal voice in the choice of those who shall represent the people in the Legislature. It is implied in those provisions of the Constitution which require that Rejsresentatives in the Legislature shall be chosen by ballot, and by single districts. By these provisions every elector expresses his wish by ballot, and a single vote is implied. It is implied in those provisions of the Constitution that declare that every male citizen of 21 years of age, and possessing the qualifications prescribed, shall be entitled to vote at all elections; and that all votes shall be given by ballot, except for such township officers as may be authorized by law to be otherwise chosen. What do these provisions express? What is the meaning of the word “vote?” It means, according to Worcester,—
“Suffrage; voice or opinion of a person given in some matter which is commonly to be determined by a majority of voices or opinions of persons who are empowéred to give them; the wish of an individual in regard to any question, measure, or choice, expressed by word of mouth, by ballot, or otherwise; that by which the will, preference, or opinion of a person is expressed; a ballot.”
See, also, Bouv. Law Dict. tit. “Vote.” And what is meant by the word “elections,” used in this article of the Constitution? Bouvier defines “election” as signifying the choice which several persons collectively make of a person to fill an office or place. This is the most usual acceptation of the term,. We think, also, that he expresses the common opinion of the public in the fourth paragraph under this title, where he says:
“ One of the cardinal principles on the subject of elections is that the person who receives a majority or plurality of the votes is the person elected. Generally, a plurality of the votes of the electors present is sufficient, but 'in some states a majority of all the votes is required. Each elector has one vote.”
Giving to the language of the Constitution its ordinary signification, it declares the principle that each elector is entitled to express his choice for Representative, as well as all other officers, which is by his vote, and the manner of .expressing such choice is by ballot. When he has expressed his preference in this manner, he has exhausted his privilege; and it is not in the power of the Legislature to give to his preference or choice, without conflicting with these provisions of the Constitution, more than a single expression of opinion or choice. As to members of the Legislature, county or township officers, the Constitution nowhere in express terms prohibits the Legislature from enacting a law that the certificates of election shall be issued to the person having the least number of votes. This is practically what is asked for in this case, for relator admits that he has received a minority of the votes cast, if each elector can cast but one vote for a candidate. No one would contend that a law declaring the person who received the least number of votes elected to an office would be a constitutional and valid law; and yet we cannot lay our finger upon the clause prohibiting in terms such legislation.
It is true, the Constitution does not prohibit the Legislature by express language from concocting' some scheme by which the equality of the electors in the choice of' Representatives may be impaired or defeated. There is nothing in the Constitution which by express language prohibits the Legislature from enacting a law providing that such electors as appear by the assessment roll of the preceding year to have been assessed $1,000 and upward shall have an additional vote for each $1,000 for which they are assessed and pay taxes on. This would permit every elector qualified under the Constitution to vote at least once, and others to vote as many times as they were assessed $1,000 upon the assessment, roll. It requires no argument to show- that such legislation would defeat the object of the elective franchise, which is that every elect- or’s franchise is of equal value to that of every other elector, and it would subvert the will of the people as expressed through the ballot. And such is the case before us. No reason can be given why, under our Constitution, one elector should be entitled to vote twice or seven times for any particular person to represent him in the Legislature, when any other elector, who desires to exercise the right which the Constitution gives him to vote for every person allowed by law to represent him in the Legislature, is permitted to vote but once. The choice of the elector, as expressed by the ballot, who “plumps” his vote under this law is equal to the choice of two electors in Grand Eapids, or to seven in Detroit, who exercise the right which the Constitution gives them to vote for every candidate to be chosen. It is no answer to say that he, too, may forego the right of an elector to vote for the number of Eepresentatives which the law permits in cities entitled to more than one Eepresentative; for to do so he is compelled to relinquish a. constitutional right, and his right as an elector is in this respect abridged. What different in principle or in result is this law, which permits one elector to cast more than one vote for a candidate, from the act of the person who stuffs a ballot-box with more votes for a particular candidate than there were electors voting for him? The only difference is that in one case the will of the majority is overcome and defeated under the forms of law, and in the other without law. Both are frauds upon the rights of the majority of the electors; both alike strike down the constitutional safeguards of the people; both are subversive of a free representative government.
It must be conceded that the Constitution, by implication, prohibits cumulative voting in single districts; that is, where but one Representative can be elected. The prohibition is equally strong in cities or towns where, by the Constitution, more than one Representative can be elected. With regard to such municipalities, the Constitution declares that such town or city shall elect by general ticket the number of Representatives to which it is entitled. Here the method of election is prescribed, and cannot be ignored. What is meant by the term “general ticket?” In the connection in which the language occurs, the term “ general ticket” is opposed to “partial” or *' special,” and signifies that the whole number of Representatives to which the town or city is entitled shall be placed upon the ticket to be voted, thereby constituting a “ general ticket.” This signification corresponds with the primary meaning of the word “general” as defined by lexicographers. It is, moreover, consistent with the provision for electing Representatives when only one is to be chosen, making the whole proceedings uniform throughout the State. Any other construction, or any construction of the Constitution which will permit an elector to vote more than once for the same person to be a Representative, would destroy that uniformity of the right of every elector, wherever he may reside in this State, to cast one vote, and but one vote, for each Representative for which he is entitled to vote; and as was said by Mr. Justice Campbell in the case of Attorney General v. Detroit Common Council, 58 Mich. 216,—
“It cannot be lawful to create substantial or serious differences in the fundamental rights of citizens in different localities in the exercise of their voting franchises.”
The law under consideration does-create substantial and serious differences between the rights of the electors in Grand Rapids and in Detroit and those of other parts of the State, in the exercise of their voting franchise. In Grand Rapids it defeats the will of a majority of the electors, and, instead of securing a minority representation, it gives an equal representation with the majority. In Detroit, as stated upon the argument of the learned counsel, instead of that municipality being represented in the Legislature by those electors who constituted a majority who voted for Representatives, and, if no elector had voted more than once for any candidate, such majority would have elected seven Representatives, the¡i minority of ’ the electors voting have elected four out [ of the seven by “plumping” their • votes in different ' parts of the city. Here the will of the majority has been defeated and overridden by votes which do not represent the will of an individual elector in each case, but which do represent, if the law is constitutional, a legal stuffing of the ballot-boxes with false votes. In this State, no matter by what means accomplished, whether because a candidate who receives a majority of the votes is ineligible, or whether an elector votes more than once for a candidate, no person is elected who receives only the vote of a minority of the electors voting. People v. Molitor, 23 Mich. 341. Although the Constitution requires Representatives to be elected upon a general ticket in the cases specified,- yet every elector is not obliged to vote for every office to be filled, or for every person on the ticket. He may vote for one or more, but- he cannot vote more than once for any one person, for the reason before stated.
Under ordinary circumstances, where a person claims an election to a legislative body which is the sole judge of the election and qualifications of its own members, we should not grant a writ of mandamus to compel the canvassing board to r.everse its action. Sherburne v. Horn, 45 Mich. 160. And while we adhere to the doctrine laid down in several of our previous decisions, that the duties of a canvassing board are ¡surely ministerial, yet, feeling, as we do, that the law is unconstitutional under which the relator claims to have been elected, we should stultify ourselves to command even a ministerial board to observe it. Happily, we are relieved from such dilemma by the honorable course of the relator, who has set up the fact in his petition that he is not entitled to the certificate unless the votes can be counted for him cumulatively, and that a less number of. electors voted for him than for those whom the canvassing board have declared •elected, and his counsel frankly states to us that unless the cumulative voting law is valid his client has no claim and asks no relief. TVe have also a precedent from Ohio, where the duty of the canvas.sing board is ministerial, but who refused a certificate of election to an office claimed to b'e vacant, but which they deemed not vacant. The supreme court held that although the duties of the canvassing board were ministerial, and they had no right to consider the question of vacancy, yet the court would consider it, and not compel the performance of an act that was useless. State v. McGregor, 44 Ohio St. 628 (10 N. E. Rep. 66).
If the people of this State desire to provide for some different means to secure minority representation than that which is. in a measure secured by the single district system under the present Constitution, they must do sot through, an amendment to that instrument, by which a proposition so vitally interesting to them may be passed, upon by the popular vote; but it is to be hoped that, when a plan is submitted to them, it will not be the system of cumulative voting, which obtains such unequal and unjust results, overturning, in many instances, the-'j will of the majority, and concerning which Mr. Horton, * in the Penn. Monthly for June, 1873, said:
. “The larger the district, the more dangerous the peculiarities of this system. Were it tried on such a scale as that of congressional elections in Ohio, anything like fairness or proportionality would at first be impossible. Tending, as it plainly must, if unrestrained, to make representation fluctuating and disproportionate. It would eventually compel the tightening of the already oppressive bands of party discipline. In general, the scale which, under the present district system, tends now to a majority, and now to a minority, would be permanently weighed down in favor of a minority.55
If proportional representation is desired, the Geneva orjj Gilpin plan approaches the nearest to exact justice. But-.', every plan yet devised is open to serious objection. Were the law under consideration a valid emanation of legislative power, we should not offer any suggestions as to its wisdom or expediency, and what we have said is in response to the argument advanced that there was a wide_ spread and prevailing desire for some sort of minority representation.
Upon consideration of the whole record, the application must be denied.
Morse and Long, JJ., concurred with Champlin, C. J.
Grant, J.
The respondent declined to canvass and count the votes for Representatives in the Legislature in the city of Grand Rapids, and to issue a certificate to relator, according to Act No. 254, Laws of 1889, which provides for cumulative voting in certain cities entitled to more than one Representative. This refusal is based upon the unconstitutionality of the act. The relator thereupon presented his petition to this Court to compel the canvassing of the votes, and the issuance of a certificate to him.
At the threshold of this controversy is ah insurmountable objection to the position taken by the respondent, if it were insisted upon. The sole duty of the canvassers under the law is to examine the original statements certified to them by the several boards of inspectors of election, or certified or corrected copies thereof, and from them to ascertain the number of votes cast for the different officers, and to make statements thereof, and issue certificates accordingly. They have no discretion, no judicial power or functions, and no ministerial functions, except in so far as the word “ministerial" means “clerical," which is one of its definitions given by Webster. Their functions, therefore, are purely clerical. The relator, upon the face of' the returns, was entitled to a certificate of election. The real question here is, who was elected Representative? The proceeding by mandamus is not the proper remedy to try the title to an office. This can only be done, finally and conclusively, by quo warranto proceedings. Frey v. Michie, 68 Mich. 323. In my judgment, it was never contemplated by the Legislature that the board of canvasser's should possess any other power than to canvass the returns and to declare the result. This does not determine the title, to the office. The certificate is only prima facie evidence of title, throwing the burden of proof upon him who contests. People v. Van Cleve, 1 Mich. 363; Sherburne v. Horne, 45 Id. 160. The canvassers have no right to shift this burden of proof by withholding the certificate, or issuing it to another.
But it is said that constitutional questions have often been raised and decided by this Court in mandamus proceedings. This is true where personal and property rights are involved, and great inconvenience and damage would result if prompt action were not taken. ■ In such case the public officer or body charged with the performance of duty may either decline to act on the ground of the alleged unconstitutionality of the law, or he may proceed. In either event mandamus will lie, — to set him in motion in the one case, and to restrain him in the other. But this does'not apply to cases where the duty of the officer is only clerical or ministerial, and the law provides an ample remedy afterwards to test the validity of his action, and that, too, without any inconvenience or damage. In such case the officer must perform his duty, and leave the parties interested to contest the result in the proper forum and by the proper proceeding. He should not, in such case, be heard to plead the unconstitutionality of the law as an excuse for his refusal.
The result of the respondent's action in this case is to shift the burden of proof to one upon whom the law in such cases does not place it. It can make no difference that that burden involves the constitutionality of the law, rather than a question of fact. This is not the proper proceeding, therefore, to raise the constitutionality of this act of the Legislature; and this Court should, in my judgment, decline to determine it in all cases where it is not expressly waived by the relator. This the relator has// done, and upon that ground alone I consent to a deter-]/, mination of the main question. Upon this question I fully concur in the result reached by my Brother Chaiiplin, and in his reasons therefor. | [
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Per Curiam.
Plaintiff, Phyllis Rapaport, appeals as of right from a January 13, 1988, Oakland Circuit Court order dismissing plaintiff’s May 9, 1986, motion pursuant to MCR 2.612(C)(1)(c) for relief from an August 1, 1985, Oakland Circuit Court order modifying the alimony provisions of a judgment of divorce. We reverse and remand for proceedings consistent with this opinion.
This is the fourth time that this divorce case has been before this Court. After a judgment of divorce was entered May 2, 1973, this Court, among other things, amended the property settlement provisions of the judgment of divorce. Rapaport v Rapaport, unpublished opinion per curiam of the Court of Appeals, decided December 17, 1974 (Docket No. 17438). In 1982, this Court affirmed the trial court’s orders related to denial of plaintiffs and defendant’s cross-motions for modification of the alimony provisions. Rapaport v Rapaport, unpublished opinion per curiam of the Court of Appeals, decided August 18, 1982 (Docket No. 54927). In 1987, this Court reversed the trial court’s October 16, 1985, order denying plaintiffs request for defendant’s tax returns. Rapaport v Rapaport, 158 Mich App 741; 405 NW2d 165 (1987), modified 429 Mich.876; 415 NW2d 864 (1987). We ordered defendant to produce his tax returns, and ordered the trial court to conduct a new hearing after which the trial court’s August 1, 1985, order modifying alimony would be reconsidered. Rapaport, supra, p 751. The order increasing alimony by $100 per week was affirmed pending the outcome of the hearing. Id. The Supreme Court subsequently modified our opinion "so as to delete the requirement that the defendant disclose his income tax returns to the plaintiff and that there be a reconsideration of the alimony issue. See Burr v Burr, 313 Mich 330 [21 NW2d 150] (1946).” Rapaport v Rapaport, 429 Mich 876. This Court must now resolve this latest appeal.
On December 23, 1983, plaintiff filed a motion to increase her alimony from $400 per week to $800 per week. On September 27, 1984, the trial court denied defendant’s motion for accelerated judgment in which defendant argued that the court lacked personal jurisdiction over him because he claimed to be living on a boat moored outside of United States territorial waters. (This Court affirmed that order in Rapaport, 158 Mich App 741.) Hearings on plaintiffs motion were held on December 12 and 13, 1984. Defendant did not appear for those hearings. Nevertheless, defendant’s attorney conducted an extensive cross-examination of plaintiff regarding financial documents which defendant provided to plaintiff pursuant to court order. Defendant’s attorney also argued to the trial court that defendant’s income had actually decreased since 1974, rather than increased as plaintiff alleged. Following the hearings, the trial court found that plaintiffs financial condition had worsened, but only to the extent that she was entitled to an increase of $100 per week. The trial court did not discuss defendant’s financial resources. An order consistent with those findings was entered on August 1,1985.
As previously stated, this Court affirmed the August 1, 1985, order increasing alimony. Rapaport, 158 Mich App 751. While affirming that order, this Court expressly declined to consider "additional motions [filed by plaintiff on May 9, 1986] alleging fraud and misrepresentation on the part of the defendant” with respect to that order. Id. Specifically, plaintiff alleged that documents produced by defendant and relied on for his "defense” of plaintiffs motion to increase alimony were false or misleading as to defendant’s finances. Plaintiff therefore requested relief from the resulting order "pursuant to MCR 2.612(C)(1)(c) . . . based on fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Plaintiff submitted a number of documents tending to support the allegations in the motion. Defendant thereafter filed a motion requesting the trial court to dismiss plaintiffs motion for not stating the allegations of fraud with particularity as required by MCR 2.112(B)(1). Although plaintiffs response to defendant’s motion alleged and documented the misrepresentations more specifically, the trial court granted defendant’s motion.
We have set out the procedural history of the present appeal in order to reveal what we believe was a fundamental error by defendant which resulted in the trial court’s decision. Plaintiffs motion was filed pursuant to MCR 2.612(C)(1)(c) within one year of the trial court’s order. See MCR 2.612(C)(2). It was not an independent action under MCR 2.612(C)(3). It was a motion. As such, plaintiff was not required to comply with the strict pleading requirements of MCR 2.112(B)(1). See MCR 2.110(A) (definition of "pleading”). Instead, plaintiffs motion was governed by MCR 2.119. See also MCR 2.113(A) (form, captioning, signing, and verifying of motions). We therefore distinguish this Court’s decision in MacArthur v Miltich, 110 Mich App 389, 390-391; 313 NW2d 297 (1981), where the plaintiff was required to bring an independent action because she was seeking relief from a final judgment rendered five years earlier.
MCR 2.119(E)(1) provides that contested motions should be noticed for hearing. When all of the facts necessary to decide the motion are not of record the court has discretion to hear the motion on affidavits, or it may direct that the motion be heard on oral testimony or deposition. MCR 2.119(E)(2). Furthermore, where a party alleges that a fraud has been committed on the court, it is generally an abuse of discretion for the court to decide the motion without first conducting an evidentiary hearing into the allegations. Michigan Bank-Midwest v DJ Reynaert, Inc, 165 Mich App 630, 643; 419 NW2d 439 (1988); St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210, 214-215; 238 NW2d 806 (1975), lv den 396 NW2d 864 (1976).
In the present case, plaintiffs motion for relief from the August 1, 1985, order and plaintiff’s response to defendant’s motion presented to the trial court significant, specific allegations of misrepresentation of material facts in documents provided by defendant pursuant to court order. Plaintiff attached a number of documents tending to support the allegations of misrepresentation. Since defendant did not appear for the hearings on which the August 1, 1985, order was based, the subject matter of the alleged misrepresentations, i.e., defendant’s financial status, was not gone into fully. We therefore distinguish the Supreme Court’s decision in Young v David Young, 342 Mich 505, 507; 70 NW2d 730 (1955), where the Court noted that the plaintiff did not specify the nature or extent of the defendant’s alleged misrepresentations and the defendant’s financial status was explored fully at trial.
There is an additional basis for distinguishing Young. In Young, the Court noted that a motion for relief from judgment was an appeal to the equity jurisdiction of the trial court. Young, supra, p 507. The allegations of the plaintiff’s pleadings, however, did not show that a fraud had been committed. Therefore, the Court held that the "averment as to fraud on defendant’s part, not supported by allegations of fact, was insufficient to afford jurisdiction to the court to proceed to a hearing.” Young, supra, p 509. By comparison, the present court rules provide for a motion for relief from an order within one year after entry of the order, and for a hearing on all contested motions in the discretion of the court.
We conclude that the trial court erred when it dismissed plaintiff’s motion under the standard set forth in MCR 2.112(B)(1) for pleadings. Further, the trial court abused its discretion when it denied plaintiffs motion for relief from the August 1, 1985, order without first holding a full evidentiary hearing on plaintiffs allegations of fraud, misrepresentation, and other misconduct by defendant with respect to that order.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Per Curiam.
Defendant appeals by leave granted the denial of its motion for summary disposition. MCR 2.116(0(10). This action involves a claim by plaintiff against defendant for payment of medical benefits pursuant to the no-fault insurance act, MCL 500.3109; MSA 24.13109. The sole issue before this Court is whether an insured, who pays a reduced premium to the no-fault insurer in exchange for coordinated medical benefits coverage, is required to seek benefits from the primary insurer before seeking payment from the no-fault insurer. We answer in the affirmative and reverse the trial court’s decision.
The facts of this case are not in dispute. In 1985, plaintiff was injured in a nonwork-related automobile accident. At the time of the accident, plaintiff was enrolled in Health Care Network (hcn), a health care program furnished by his employer. Plaintiff was required under that program to be treated by designated approved physicians. Plaintiff also had coordinated medical benefits coverage through defendant, his automobile insurer. Plaintiff did not receive treatment from doctors participating in the hcn plan, but received his treatment from nonparticipating doctors. It is alleged and not disputed that the type of treatment that defendant received was available from doctors who participated in the hcn plan. Plaintiff sought payment from defendant for these medical expenses. Defendant refused to pay for any of the medical treatment rendered by doctors who did not participate in the hcn plan. Defendant cited the coordinated benefits provision of the insurance policy and indicated that the provision required that plaintiff be treated by hcn doctors. Plaintiff filed suit against defendant for payment of medical benefits.
Defendant brought a motion for summary disposition, arguing that defendant was not required to pay benefits for medical expenses incurred outside of the hcn program due to the coordinated benefits provision of the policy.
In denying defendant’s motion for summary disposition, the trial court contrasted the language of the medical coordination provision and the absence of any cooperation requirement with the specific recitation of the insured’s various obligations in seeking mandatorily required benefits as set forth in a provision explaining the mandatory coordination features of MCL 500.3109; MSA 24.13109 for an insured seeking government benefits. The trial court concluded:
The obligation of the insured to seek available government benefits and the consequence for failure to pursue them are quite explicit, and yet that language is not used regarding other medical insurance. The difference in treatment carries the natural implication that those provisions do not apply in the latter instance and, accordingly, that the deduction for benefits available but not sought applies only to government benefits. The insurer, presumably, was free to articulate the same explicit duty and penalty regarding other medical insurance but it has simply not done so in this contract.
On appeal, defendant contends that the trial court erred in denying its motion for summary disposition. Defendant argues that by choosing coordinated medical benefits plaintiff agreed to make hcn the primary insurer and may not choose which insurer will pay benefits. We agree.
A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Dumas v Auto Club Ins Ass’n, 168 Mich App 619, 626; 425 NW2d 480 (1988).
The moving party must identify by supporting affidavit those facts which it believes cannot be genuinely disputed. Slaughter v Smith, 167 Mich App 400, 403; 421 NW2d 702 (1988). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Dumas, supra. The opposing party may not rest upon mere allegations or denial in the pleadings, but must, by affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4); Metropolitan Life Ins Co v Reist, 167 Mich App 112, 118; 421 NW2d 592 (1988), lv den 431 Mich 877 (1988).
The coordination provision of plaintiffs policy states:
If the Declaration Certificate shows Coordinated Medical Benefits, sums paid or payable to or for you or any relative shall be reduced by any amount paid or payable under any valid and collectible: individual, blanket or group disability or hospitalization insurance; medical, surgical or hospital direct pay or reimbursement health care plan; Workers’ Compensation Law, disability law of a similar nature, or any other state or federal law; or car or premises insurance affording medical expense benefits. [Emphasis in original.]
It is uncontested that plaintiffs declaration certificate showed coordination of medical benefits.
This coordination provision is required to be offered to insureds pursuant to MCL 500.3109a; MSA 24.13109(1), which provides:
An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.
Our Supreme Court in Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537, 551-552; 383 NW2d 590 (1986), explained the broad policy rationale behind the coordinated benefits provision of § 3109a:
[T]o contain both auto insurance costs and health care costs, while eliminating duplicative recovery. Further, this result is consistent with the legislative scheme vesting in insureds, rather than insurers, the option of coordinating benefits.
On these grounds, the Supreme Court declared that an insured’s health insurance coverage was to be the primary insurer regardless of policy language which attempted to force the opposite result. The Court based its holding on the Legislature’s purpose in enacting § 3109a: reducing insurance costs by lessening the cost of no-fault policies in dual coverage situations. In the face of such strong policy considerations, we do not believe that the statutory scheme allows an insured to simply ignore an existing health care benefit and frustrate the entire coordination program, a program which provided a statutorily mandated reduced insurance premium for plaintiff in this case.
Plaintiff claims that defendant contractually agreed, under the policy, to pay any expenses not covered by plaintiff’s hcn plan irrespective of whether or not plaintiff sought treatment under the hcn plan first. In contrast, defendant claims that plaintiff agreed that hcn would be the primary insurer and therefore plaintiff had a duty to seek treatment under the hcn plan first. Both parties rely on two cases which had not been decided at the time the trial court denied defendant’s motion, Calhoun v Auto Club Ins Ass’n, 177 Mich App 85; 441 NW2d 54 (1989), lv den 434 Mich 894 (1990), and Morgan v Citizens Ins Co of America, 432 Mich 640; 442 NW2d 626 (1989), reh den 433 Mich 1201 (1989).
In Calhoun, a case similar to the instant case, a panel of this Court held that an insured who obtained a coordinated benefits clause from the no-fault insurer was not obligated to "seek all possible health care benefits from his hmo plan prior to making a claim for benefits under his no-fault policy” because the insurer did not include "specific language to that effect in its coordination of benefits clause.” Calhoun, 91.
Subsequent to Calhoun, our Supreme Court in Morgan, supra, ruled that an insured may not be required, under the mandatory setoff of governmental benefits provided for by MCL 500.3109; MSA 24.13109, "to avail himself of whatever medical service in kind a governmental source may provide,” noting that "[g]overnmental medical ser vice may not be comparable in quality and service with the doctor or hospital service that the injured person purchased or may be able to purchase with the no-fault dollar.” Id. at 647. In a footnote, however, the Court noted:
We express no opinion whether an injured person who has contracted for a reduced premium under § 3109a (MCL 500.3109a; MSA 24.13109[1]), and thus has voluntarily agreed that other insurance will be primary for medical benefits, may seek recovery from a no-fault insurer unless he was unable to obtain medical care from a facility designated, pursuant to the contract with the primary insurer, by the primary insurer.
Similarly, we express no opinion whether, if Morgan contracted for a reduced premium under § 3109a on the basis of medical benefits available through his employment by the federal government, he voluntarily agreed that such benefits would be primary and may not seek recovery from Citizens unless he was unable to obtain medical care from a facility designated by the federal government which, in that hypothesis, has or may have, in effect, become the primary insurer for the purpose of coordination under § 3109a. [Id.]
As the Supreme Court recognized in Morgan, a distinction exists between the duties imposed upon an insured by § 3109 of the no-fault statute and duties imposed upon the insured by his free choice in selecting coordinated medical benefits in exchange for a reduced premium. The insured’s choice of treating physicians or facilities in such a situation is limited not by the no-fault insurer, but rather by the terms of the contract with the primary health insurer.
We disagree with the trial court and the Calhoun Court’s decision that, had defendant intended that plaintiff seek all possible health care benefits from his primary health insurer prior to making a claim for benefits under his no-fault policy, defendant should have included specific language to that effect in his coordination of benefits clause. This Court in United States Fidelity & Guaranty Co v Group Health Plan of Southeast Michigan, 131 Mich App 268, 273; 345 NW2d 683 (1983), interpreted similar language in a no-fault policy as not "easy for a layman to understand, [but] once deciphered, it clearly states that the insurer has only secondary liability.” We find that here, the coordination of benefits provision of defendant’s insurance policy deems defendant to be an insurer of last resort responsible for expenses uncovered by the insured’s primary insurer.
We disagree with the Calhoun Court’s holding that an insured who selected coordinated medical benefits coverage in his no-fault policy in exchange for a reduced premium was not required to seek treatment from his primary health insurer, but could seek treatment elsewhere at the expense of the no-fault insurer. We believe that this holding is incorrect, and the Calhoun decision is not persuasive to this Court. To further the purpose of § 3109a, we hold that an insured, who pays a reduced premium in exchange for coordinated medical benefits coverage, is required to seek benefits provided by the primary insurer before seeking payment from the no-fault insurer.
Our decision is made in the factual context in which the insured chose coordinated coverage and the no-fault insurer, accordingly, charged a lower premium rate. We express no view as to what the result would be when the insured does not so elect and the no-fault premium is not correspondingly reduced.
For the foregoing reasons, the order of the trial court denying summary judgment in favor of defendant is reversed.
Reversed.
The defendant in Calhoun is the same insurer, Auto Club, which is the defendant in the instant case and the coordinated benefits clauses at issue in each case are identical. | [
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Per Curiam.
Plaintiff appeals as of right from an Oakland Circuit Court order for summary disposition pursuant to MCR 2.116(C)(10) for the reason that there was no genuine issue of material fact. We reverse.
Plaintiff is a dealer of precision tools. While parked overnight at the home of plaintiff’s salesman, the company van was broken into and its contents stolen. The van was loaded with merchandise in anticipation of a trip the next day to call upon a specific group of customers. The day following the theft, plaintiff filed a claim with defendant for the loss. Defendant denied coverage pursuant to the policy language in that the covered vehicle was not "in transit” and that the contents were not "in the course of delivery.”
Plaintiffs motion for summary disposition was denied on the basis that there was a disputed issue of fact as to whether the van was “in transit” or "in the course of delivery.” Following plaintiff’s counsel’s suggestion that the trial court may want to reconsider its opinion prior to submitting the case to the jury, the trial court held an evidentiary hearing with plaintiff’s salesman as the sole witness.
As a result of this evidentiary hearing, the trial court sua sponte granted summary disposition in favor of defendant, holding that, to be covered by the policy in question, the property must be "in the course of delivery” and plaintiffs property was not. The trial court held further that the phrase "in transit” was unambiguous and inapplicable to the stolen tools.
Plaintiff first argues that the trial court erred when it concluded that the subject insurance policy required the contents of the company van to be "in the course of delivery” as a prerequisite for coverage. We agree.
At issue here is the interpretation of two phrases contained in the "Property Covered” section of the insurance contract:
On lawful goods consisting of tools the property of the Insured or sold by them and in course of delivery in or upon the following motor truck(s) or trailer(s) operated by the Insured, but this policy only covers while goods are actually in transit in the custody and control of the Insured within a radius of 100 miles of Southfield.
Defendant would have us interpret this sentence by adding commas in such a manner that the key phrase would read: "Property[,] of the insured or sold by them[,] and in course of delivery.” Plaintiff would have us add a comma before the "or”: "Property of the insured[,] or sold by them and in course of delivery.”
In Robert L Berner Co v National Fire Ins Co of Hartford, 331 Ill App 102; 72 NE2d 727 (1947), the Illinois court was faced with interpreting a similarly ambiguous phrase. The court stated:
The original policy insured lawful goods and merchandise consisting of wholesale produce, the property of the insured or sold by them in course of delivery while in the custody of the insured and actually in transit....
It covered only goods owned by the insured or goods sold by him and in course of delivery. [Id., pp 103-105.]
Since it is well settled that insurance contract ambiguities are to be construed against the insurer, Powers v DAIIE, 427 Mich 602; 398 NW2d 411 (1986), we will adopt the interpretation urged by plaintiff. Plaintiff’s interpretation is quite plausible and identical to the interpretation given a similar clause in the instructive Illinois case.
The trial court, therefore, erred in failing to construe the phrase so as to cover the tools stolen from plaintiff’s van.
Plaintiff next argues the trial court erred in failing to find that the merchandise was unambiguously "in transit.”
In concluding that the instant goods were not "in transit,” the trial court stated:
[The] undisputed facts of the instant case reflect that the tools were not contained within M & H’s truck for delivery. Rather, they were contained to be displayed to prospective purchasers. Further, the goods were not loaded onto an empty truck. The undisputed facts are that Plaintiff continuously kept the truck fully stocked with a $63,000 tool inventory. For these reasons, the Court finds that the goods were not "in transit” within the meaning of the policy when they were stolen. [Emphasis in original.]
In a case similar to the one before us, the Maryland Court of Appeals held that a common sense appraisal of the overall situation, rather than the precise shadings of terms of art, was determinative of the outcome. Home Ins Co v F & F Clothing Co, 250 Md 534, 540; 243 A2d 572 (1968). In Home Ins Co, defendant supplied uniforms to various businesses. These were loaded into a company station wagon which an employee drove to his home to allow for an earlier start the next day. While parked at the employee’s home, the vehicle was broken into and the goods stolen. The insurer argued the goods were not in transit since the delivery process would not begin until the employee left the following morning and that the overnight stoppage was neither contemplated by the policy nor in any case necessary or connected with transit and delivery. Id., p 536. The court set forth the test it relied upon in concluding the goods were in transit:
"The true test thus appears to be not whether movement was interrupted overnight, or over a weekend, but whether the goods, even though temporarily at rest were still on their way, with any stoppage merely incidental to the main purpose of delivery. . . .
"In the final analysis, the outcome of a case such as this should be determined not by precise seman tic shadings of terms of art, but by a commonsense appraisal of the overall situation.” [Id., pp 539-540, quoting Ben Pulitzer Creations, Inc v Phoenix Ins Co, 47 Misc 2d 801, 804; 263 NYS2d 373 (1965).]
In applying such a test to the facts in the case at bar, we conclude that plaintiffs tools were "in transit.” It would be unreasonable for us to conclude that the tools would be covered while on plaintiffs premises or in plaintiffs van en route to customers, but not while temporarily stopped between those points for rest. We hold, therefore, that the phrase "in transit” unambiguously creates coverage and that it was error for the trial court to hold otherwise.
Lastly, plaintiff argues it was improper for the trial court to grant summary disposition to defendant. On the basis of our foregoing analysis, we agree. Upon remand, we order that summary disposition be entered in favor of plaintiff.
Reversed and remanded. We do not retain jurisdiction. | [
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Per Curiam.
Respondent Luther V. Myles appeals as of right from an order entered by the Tuscola County Probate Court dismissing respondent as a party. The court found that respondent lacked standing to participate in proceedings to terminate parental rights involving Sabrina Marie Montgomery because he was not the minor child’s biological father. We affirm.
We agree with the probate court’s ruling that defendant lacks standing to object to the termination of parental rights involving the minor child. MCR 5.921(B)(3) provides that the "parents” of a child who is the subject of a proceeding to terminate parental rights are entitled to notice of the proceeding. See also MCL 712A.19b(2); MSA 27.3178(598.19b)(2). A "father” is a "parent.” MCR 5.903(A)(12). A "father” is defined as "a man married to the mother at any time from a minor’s conception to the minor’s birth unless the minor is determined to be a child born out of wedlock.” MCR 5.903(A)(4)(a). The definition of a "child born out of wedlock” includes a "child determined by judicial notice or otherwise to have been conceived or born during a marriage but who is not the issue of that marriage.” MCR 5.903(A)(1).
At the adjudication hearing, respondent himself testified that he was not the biological father of Sabrina Marie Montgomery. Respondent stated that he had not had sexual relations with Sabrina’s mother for fifteen months before the child’s birth because he was incarcerated during that time. Furthermore, the child’s mother had acknowledged to a social worker that respondent was not the biological father. The probate court expressly found that respondent Michael Quinn was Sabrina’s biological father. Application of the definitions set forth above requires a determination that respondent is not the minor child’s father within the meaning of the court rules. Therefore, the probate court properly granted petitioner’s motion to strike respondent as a party for lack of standing.
We also reject respondent’s claim that he was denied his right to due process of law because he was not present at the motion hearing to determine his standing in the action. See Fritts v Krugh, 354 Mich 97, 122; 92 NW2d 604 (1958). A parent is clearly entitled to be present at the dispositional hearing of a proceeding to terminate parental rights. In re Render, 145 Mich App 344; 377 NW2d 421 (1985). However, respondent was not a parent and, at least so far as it concerned respondent, the particular proceeding involved was not the dispositional hearing. In both civil and criminal actions, a party is entitled to be present in the court room at all stages during the actual trial of the matter or at proceedings of a trial-like nature. Render, supra, p 347; People v Swan, 59 Mich App 409, 414; 229 NW2d 476 (1975). However, the hearing to determine respondent’s standing in the present action was not a proceeding in the nature of a trial. Respondent was represented by counsel at the hearing of the motion and was, therefore, sufficiently present for the purposes of that proceeding. See MCR 2.117(B); MCR 5.915(C). Furthermore, no prejudice to respondent resulted from his absence because the probate court’s determination was based on evidence presented at the earlier adjudicative hearing. Respondent was present at that hearing, testified, and was afforded an opportunity to address the court.
Affirmed. | [
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Neff, J.
Defendant pled guilty as charged to possession with intent to deliver marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). After being sentenced to two years to four years of imprisonment, defendant filed this appeal as of right. We affirm defendant’s conviction, but reverse and remand for resentencing before another judge.
i
At about one o’clock in the morning defendant was observed by a policeman behind a gas station. Defendant was urinating when he was seen by the officer.
The officer stopped his cruiser and approached defendant. During the ensuing conversation defendant picked up a small duffel bag which had been on the ground at his feet. Because defendant "seemed to be a little bit nervous” the officer became concerned for his safety and became nervous himself, finally asking about the contents of the bag. After several requests from the officer to open the bag, defendant complied and threw it on the ground. The bag contained about a half pound of marijuana.
Defendant had about $1,500 in his wallet, separated into $100 dollar increments.
Defendant was charged with the marijuana felony and with the misdemeanor offense of urinating in public.
n
At the time of the offense, defendant was twenty-eight years old. He had no prior criminal record, either as a juvenile or as an adult. He was employed at a responsible job where he was considered a valuable employee and was married with four young children.
The sentencing guidelines called for a minimum sentence of from zero to six months in jail. Instead, the trial judge sentenced defendant to a minimum term of two years of imprisonment. The trial judge candidly explained his reasons for the departure from the guidelines’ recommended minimum sentence.
Defendant raised and preserved the issue of sentence length in this appeal, which was pending when People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), was decided. Whether we impose the "principle of proportionality” announced in Milbourn as the néw standard of appellate review of the exercise of sentencing discretion or the old standard of "shock the conscience” under People v Coles, 417 Mich 523; 339 NW2d 440 (1983), we find the trial judge’s reasons inadequate to justify the departure from the guidelines and we conclude that the resulting sentence constitutes an abuse of his discretion.
III
In spite of defendant’s prior clean record, his employment status and his family considerations, the only plea bargain involved was the dismissal of the misdemeanor charge of urinating in public. Defendant pled guilty as charged on the marijuana offense. At the plea proceedings, defendant did not attempt to minimize his conduct and was open with the court in admitting that he possessed the marijuana to sell, explaining that he had purchased a pound of the drug for $900 about a week before his arrest. He claimed that this was his first venture into trafficking, although he admitted to being a casual user since junior high school.
IV
On the guidelines departure form, the trial judge explained his reasons for the severity of defendant’s sentence:
1. Marihuana treated to [sic] lightly.
2. Court not impressed with Metro-Detroit and tri-county sentencing statistics which significantly influence the range. Western Michigan has higher standards.
At the sentencing hearing the judge was more expansive in explaining the basis of his sentencing decision:
In your case, notwithstanding the fact that you have a good record, you are going to suffer very severely—and not just because of you, but because of the Court’s desire to send a message to other people who are going to be involved with drugs— and many people look upon marijuana as being like—the comparison, maybe, of a dandelion and a rose—that it’s sort of nothing, it’s just there, and what’s the big deal, as opposed to a rose—and maybe cocaine being compared to a rose.
The Court determines that the sentencing guidelines are not appropriate in this case as a result of their very lenient treatment of marijuana. This Court considers marijuana equal to any other illegal substance, and it should not be specifically controlled by what Detroit’s statistics are, which is what our sentencing-guidelines numbers are all about—I shouldn’t say "Detroit.” I should say the "metropolitan Detroit area,” the "Tri-County area,” where 60 to 65 percent of all the numbers come from in the guidelines. I don’t feel bound by the morality in Southeastern Michigan, as opposed to the rest of the state, where maybe some of us feel that marijuana is a much more serious substance than others consider it.
The Court also desires to send a message to the community that drug dealers will be severely treated by punishment, loss of jobs, loss of freedom, et cetera.
V
We find the reasons expressed by the trial court inappropriate to support the decision to exceed the guidelines minimum range by a factor of four. The sentence imposed constitutes an abuse of discretion to the point that it both shocks our judicial conscience and violates the principle of proportionality on its face.
The trial judge has said, in effect, that both the Legislature and the Supreme Court are in error in determining the appropriate punishment for marijuana offenses. Moreover, the judge takes it upon himself to correct these perceived errors by sentencing defendant without regard to the goal of individualized sentencing mandated by our Supreme Court in People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973), and in direct conflict with the stated purpose of the sentencing guidelines to seek standardized sentencing on a state wide basis. In so doing, the trial judge has exceeded the bounds of his discretion.
VI
Defendant’s conviction is affirmed, but this case is remanded to the trial court for resentencing before a different judge. We do not retain jurisdiction.
Weaver, P.J., concurred in the result only._
People v Fleming, 428 Mich 408, 426; 410 NW2d 266 (1987); People v Crook, 162 Mich App 106, 109; 412 NW2d 661 (1987); State of Michigan Sentencing Guidelines Manual, Michigan Sentencing Guidelines Statement of Purpose. See also People v Chapa, 407 Mich 309; 284 NW2d 340 (1979). | [
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Murphy, J.
Plaintiff appeals by leave granted from an order entered by the Wayne Circuit Court affirming the Wayne County Probate Court’s grant of summary disposition in favor of defendant for lack of subject matter jurisdiction. The court ruled that, under MCR 8.122, it has jurisdiction over actions against an attorney only when the complaint is filed by the attorney’s client. The court further held that defendant was the attorney only for Carlos Johnson, the first personal representative of the estate of Wardell M. Johnson, rather than the attorney for the estate itself. Therefore, because plaintiff, the present personal representative of the estate, was not defendant’s client, the court determined that it had no jurisdiction over plaintiff’s claim. We reverse.
On April 4, 1983, Wardell Johnson died intestate. On April 11, 1983, the Wayne County Probate Court granted the petition of Carlos Johnson, Wardell’s half-brother and sole heir, to commence probate proceedings and permitted Carlos Johnson to serve as the personal representative of his brother’s estate. On the recommendation of defendant, who had served as Carlos Johnson’s attorney in an unrelated matter, the court ordered Johnson to pay only a nominal bond of $1,000. On April 19, 1983, defendant accompanied Carlos Johnson to a Bank of the Commonwealth branch where they removed $77,000 from an account held by the estate.
In May, 1983, Mardell Osborn filed a claim for approximately $60,000 against the estate for household services and companionship rendered to Wardell Johnson pursuant to oral contract, performance, and reliance. In June, 1985, the probate court awarded Osborn the amount of $24,500 plus interest for a total of $31,007.20. However, there were insufficient funds remaining in the estate to satisfy Osborn’s claim. Carlos Johnson has apparently absconded with the estate funds and his whereabouts are unknown.
Upon Osborn’s petition, Carlos Johnson was removed as personal representative of the estate and replaced by plaintiff. Plaintiff filed a petition for surcharge of fiduciary and a complaint against the estate’s attorney pursuant to MCR 8.122. Plaintiff sought an order from the probate court requiring Carlos Johnson to turn over sufficient funds to satisfy Osborn’s claim and the other costs of settling the estate and holding defendant jointly and severally liable for such funds.
The sole issue before this Court is whether the probate court has subject matter jurisdiction over a claim filed by a successor personal representative against the attorney hired by the estate’s original personal representative. We conclude that the probate court has jurisdiction over plaintiff’s claim.
MCR 8.122 provides:
Attorneys are officers of Michigan’s one court of justice and are subject to the summary jurisdiction of the court. The circuit court of the county in which an attorney resides or maintains an office has jurisdiction, on verified written complaint of a client, and after reasonable notice and hearing, to enter an order for the payment of money or for the performance of an act by the attorney which law and justice may require. All courts have like jurisdiction over similar complaints regarding matters arising from actions or proceedings in those courts.
This rule applies only to claims by clients against their attorneys. Eaddy v Garden City Osteopathic Hosp, 152 Mich App 767, 772; 394 NW2d 99 (1986). The rule is broadly drafted to cover all matters arising out of dealings between an attorney and his client. In re Jones Estate, 115 Mich App 600, 606-608; 322 NW2d 311 (1982).
Plaintiff argues, and we agree, that the probate court erred when it ruled that defendant was the attorney only for Carlos Johnson and, as such, owed no duty to the estate.
The personal representative is a fiduciary of the estate who is charged with settling and distributing the estate. The personal representative must use his authority in the best interests of the estate and the interests of parties. MCL 700.341; MSA 27.5341. MCL 700.543; MSA 27.5543 authorizes a fiduciary of the estate, such as the personal representative, to "employ counsel to perform necessary legal services in behalf of the estate.” The attorney shall receive reasonable compensation for legal services rendered to an estate. MCL 700.543; MSA 27.5543; MCR 8.303.
We conclude that the clear intent of the Revised Probate Code and of the court rules is that, although the personal representative retains the attorney, the attorney’s client is the estate, rather than the personal representative. The fact that the probate court must approve the attorney’s fees for services rendered on behalf of the estate and that the fees are paid out of the estate further supports this conclusion.
Furthermore, the particular facts of the present case support the conclusion that defendant acted as the attorney for the estate, rather than for Carlos Johnson. The pleadings and papers in the probate court record connected with Mardell Osborn’s adverse claim refer to defendant as the attorney for the estate. Furthermore, on December 17, 1984, Carlos Johnson filed an accounting of the estate for the period from April 12, 1983, to September 17, 1984, reflecting a $4,500 attorney fee which was presumably paid to defendant, the only attorney of record. The probate court approved this disbursement from the estate on June 5, 1985.
Assuming that this attorney fee from the estate was paid to and accepted by defendant, he cannot now in good conscience claim that he owed no duty to the estate. The estate was defendant’s client. We conclude that plaintiff, as successor personal representative, properly states a cause of action on behalf of the estate against defendant under MCR 8.122. Because this claim arose out of a proceeding in the probate court, the court clearly had jurisdiction over the subject matter under MCR 8.122. Therefore, we reverse the probate court’s dismissal of plaintiff’s claim and the circuit court order affirming this dismissal. In so holding, we express no opinion regarding the merits of plaintiff’s claim against defendant, only that plaintiff is entitled to proceed on the merits.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Shepherd, J.
Defendant appeals by leave granted from the order of the Workers’ Compensation Appeal Board dismissing defendant’s appeal on the basis that it had no jurisdiction to review the appeal. The wcab found that defendant was required to first appeal the magistrate’s decision as to attorney fees to the director of the Bureau of Workers’ Disability Compensation. We reverse.
While generally our review of a decision of the wcab is limited, this Court will reverse a decision of the wcab where the decision is based upon erroneous legal reasoning. Juneac v ITT Hancock Industries, 181 Mich App 636, 639; 450 NW2d 22 (1989). The wcab found that it had no jurisdiction to decide the dispute over attorney fees on the basis of the following statute:
(1) The cost of a hearing, including the cost of taking stenographic notes of the testimony presented at the hearing, not exceeding the taxable costs allowed in actions at law in the circuit courts of this state, shall be fixed by the director and paid by the state as other expenses of the state are paid. The fees and payment thereof of all attorneys and physicians for services under this act shall be subject to the approval of a hearing referee or worker’s compensation magistrate, as applicable. In the event of disagreement as to such fees, an interested party may apply to the bureau for a hearing. After an order by the hearing referee or worker’s compensation magistrate, as applicable, review may be had by the director if a request is filed within 15 days. Thereafter the director’s order may be reviewed by the appeal board or the appellate commission, as applicable, on request of an interested party, if a request is filed within 15 days. [MCL 418.858(1); MSA 17.237(858X1).]
In Gross v Great Atlantic & Pacific Tea Co, 87 Mich App 448, 451; 274 NW2d 817 (1978), lv den 406 Mich 944 (1979), this Court held that § 858 of the act applies only to disputes between attorneys and their clients and does not apply to disputes over attorney fees between the parties. We believe that the plain language of § 858 supports the holding in Gross. The statute by its very terms speaks only to disputes over the amount of attorney fees to be awarded and does not speak to the substantive issue of the propriety of awarding attorney fees. Furthermore, the procedure for settling disagreements over attorney fees outlined in § 858 does not appear to have been intended to be applied within the framework of a proceeding to recover workers’ compensation benefits, but contemplates a separate proceeding altogether for resolution of the kind of dispute involved in this case. We may infer from this that a § 858 action is to take place after resolution of the claim between the opposing parties. We decline to adopt an interpretation of the statute which would require a defendant to fully litigate and appeal the issues involved in the disability claim and then file a petition for another hearing and ultimate review by the director as to the attorney fee issue.
We reverse the decision of the wcab and remand this case for review on the merits. We reserve jurisdiction and direct the wcab to resolve this matter and submit its findings and opinion to this Court within ninety-one days of the date of this opinion. | [
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Champlin, O. J.
This is a bill filed to obtain the construction of a will. The facts and the law are sufficiently set forth in the decree of Hon. Arthur L. Can-field, the circuit judge who heard the case below, which we adopt as our opinion in this case, and which reads as follows:
“ This cause having been brought on to be heard upon the pleadings filed therein and the proofs taken in open court, and the arguments of H. W. Stevens, of counsel for the complainants, and N. E. Thomas, of counsel for the defendants John B. Petit, Frank B. Petit, Edward Smith, Frederic Smith, and Victoria Gilbert, and guardian ad litem .and of counsel for the infant defendants, Florence Smith, Franc Smith, Stella Petit, Kennith Petit, Earl Petit, Frances Petit, Katherine Petit, Louisa Petit, and Charlotte Petit.
“ And it appearing to the court that Edward Petit, late of the city of Port Huron, in the county of St. Clair, departed this life in the year 1875, testate; and that his last will and testament, and the codicils thereto, as set out in the bill of complaint, were duly proved, admitted to probate, and allowed in the probate court for the county of St. Clair, in the State of Michigan, as and for his last will and testament,' on the 8th day of April, 1875,
“That said Edward Petit at the time of his decease was seised of a portion of the west half of the north-west quarter of section fifteen, in town six north, of range seventeen east, in the county of St. Clair, in the State of Michigan, and designated and described in said will as ‘ My homestead of sixty-five acres.’
“ That in and by said will the complainants, Bethuel C. Far-rand, Marshal N. Petit, and Louisa Smith, were named as executors and executrix of said will, and by the terms thereof the said testator granted, conveyed, transferred, and set over, in trust for the uses and purposes in said will expressed, all of his property and estate, real and personal, of which he died seised and possessed, the same to be had and held by them in trust as aforesaid, to their successors in said trust, and their assigns forever, giving and granting to said executors and executrix and the survivors of them, or to their successors in said trust, authority and power to sell and deed and convey, according to the true intent and meaning of said will, any and all of the property of his said estate left in their hands by the terms of said will.
“That in and by one of the codicils of said will said testator gave and bequeathed to the defendants Frank B. Petit and John B. Petit, to each, one undivided half of block one hundred and seventy-two of the unrecorded plat, called the ‘ Petit Plat,’ and made by I. D. Carleton, to have and to hold said block to said Frank and John, their heirs and assigns, forever, to be given to them when they respectively should become twenty-one years of age; that said Frank and John are now both past the ages of twenty-one years, and said executors and executrix have conveyed to said John and Frank the said block; that in and by the same codicil to said will the said testator gave and bequeathed to the complainant Louisa Smith the brick house and block of lots on which the same stands, and in which said testator then lived at the time of his decease; that said block one hundred and seventy-two, and said block of lots on which said house stood, were included in, and were a part of, the land covered and platted by said unrecorded plat, called the ‘Petit Plat,’ made by I. D. Carleton, and were a part of said west half of said north-west quarter of section fifteen, and the title to said block one hundred and seventy-two and said block of lots has become vested by the terms of said will in the said defendants John B. Petit and Frank B. Petit and the complainant Louisa Smith.
“That all of the remainder owned by said testator of said west half of the north-west quarter of section fifteen remains undisposed of by said will, and goes by law to the heirs of said Edward Petit, deceased, unless the same was disposed of by the sixth and seventh clauses of his said will; that said clauses of said will are in the following language, to wit.:
“ ‘Sixth. The remaining portion of my homestead place of sixty-five acres, not including the house and block of lots on which the same stands, shall (before my executors shall deem it best to have the same cut up into lots and blocks and streets, as herein provided for) be for the use and occupation of my said sons, who shall be entitled to use and occupy the same until the same shall be otherwise disposed of. I direct that, whenever the public good and the best interests of my estate require the same, this portion of my estate shall be laid out and platted into lots, blocks, and streets, and that so many of the lots shall be sold as may be necessary to make a fund, the interest of which will be sufficient to pay the taxes and expense of platting and taking care of the same, and that the remainder thereof shall be kept by my executors for twenty years after my decease, when the same shall be divided and distributed as follows, viz: To the children of my daughter Louisa, one-fourth, to be divided equally between them as they respectively attain the age of twenty-one years, those having attained that age having theirs conveyed to them at that time; to the children of my son Marshal, one-fourth thereof, to be conveyed to them as they respectively become twenty-one years of age; to the children of said Frank Petit, one-fourth thereof, to be conveyed to them in equal shares thereof as they respectively become twenty-one years of age; and to the children of my son John Petit, one-fourth thereof, to be conveyed to them respectively as they become twenty-one years of age; to be had, held, and enjoyed by them, their heirs and assigns, forever.
1 ‘Seventh. In case of the death of any of my said sons without issue, and before his portion has been conveyed to him, then, and in that case, the share that has been herein provided for said son shall be equally divided between his surviving brothers and his said sister, Louisa Smith, such share falling to her to be invested for her benefit, and * she to receive the use thereof as herein provided for her receiving other portions of my estate; and in case any of my said sons at the expiration of twenty years after my decease shall be living and without issue, then I direct that the portion herein provided to be given to such children shall be conveyed to him, his heirs and assigns, forever. And the said homestead and fourteen lots hereby reserved for the use of the said Louisa during her life-time, including the brick house, after the decease of my said daughter, and after the expiration of the said twenty years after my decease, I direct shall be divided and distributed among the children of my said children in the same way, manner, and proportions as herein provided for the other part of my said homestead, viz: To Louisa’s children one-fourth, to Frank’s children one-fourth, to Marshal’s Children one-fourth, and to John’s children one-fourth, to be held by them, their heirs and assigns, forever. And if at the time of any such division of the last portion of my said estate any of my said sons are living without issue having been born to them, then that one-fourth of the same shall be conveyed to such of them as shall be in such a case, to be held by them and their heirs and assigns forever.’
“And the court further finds that the complainants are entitled to the relief prayed for in the bill, and to have a construction by this court of said will as prayed for;. and in the construction of said will the court finds that the testator, in and by said sixth clause, undertook to suspend the power of alienation of the property therein mentioned for a longer time than is permitted by the statutes of this State, and said clause is therefore void as being contrary to the provisions of sections 5530 and 5531 of Howell’s Statutes; and the same is true of said seventh clause of said will, in so far as the same attempts to provide for the disposition of said property.
“ That the- property mentioned in said sixth and seventh clauses as ‘the remaining portion of my homestead place of sixty-five acres,’ except the parts' thereof given in the other parts of said will to John and Frank and to Louisa, as hereinbefore stated, was not disposed of by said will, and the trust created by said will, in so far as its operation and effect upon said property goes, is void; and that said testator, Edward Petit, deceased, died intestate as to said property, and the same, upon his decease, fell to, and the title thereto, vested in his heirs at law.
“ That the heirs at law of said Edward Petit at the time of his decease were the complainants Marshal N. Petit and Louisa Smith,- and the defendants John B. Petit and. Frank B. Petit, and that the defendants Edward Smith, Frederic Smith, Florence Smith, Franc Smith, Victoria Gilbert, Stella Petit, Kennith Petit, Earl Petit, Frances Petit, Katherine Petit, Louisa Petit, and Charlotte Petit took and have no interest in or to said property under said will,
“ And this court doth therefore order, adjudge, and decree that the said sixth clause of the will of said Edward Petit, deceased, is void, and that the seventh clause of said will, in so far as it relates to the property devised by said sixth clause, is also void and inoperative, and that the trust created in and by said will in favor of the executors and executrix of said will does not affect or extend to the property mentioned in said sixth clause of said will, and said heirs of said Edward Petit took the same as if no trust had been created in and by said will in favor of said executors and executrix.
“ And this court doth further order, adjudge, and decree the complainants Marshal N. Petit and Louisa Smith, and the defendants John B. Petit and Frank B. Petit, upon the decease of said Edward Petit, became the owners of all of said land mentioned in the sixth clause of said' will, and that the defendants Frederic Smith, Edward Smith, Florence Smith, Franc Smith, Victoria Gilbert, Stella Petit, Kennith Petit, Earl Petit, Frances Petit, Katherine Petit, Louisa Petit, and Charlotte Petit obtained.no rights or interest in said land under said will.
“It is the further judgment and decree of the court that the complainants do pay the costs of this suit of the defendants, to be taxed out of the estate of said Edward Petit, deceased, and that all necessary costs and expenses by them incurred in and about this cause be paid and reimbursed to them out of said estate.”
The decree of the circuit court is affirmed. The costs of this Court will be paid out of the estate in the hands of the executors, and the record will be remanded .to the court below for the enforcement of the decree.
The other Justices concurred. | [
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] |
Morse, J.
The defendant is engaged in the manufacture of paints, dry colors, Paris green, and other poisons at Detroit. About June 12, 1888, the plaintiff was employed by the defendant corporation, and worked five days. He was first put to work cutting chromo yellow, a few hours. After that he was directed to take wet Paris green out of filters with a trowel, and put it in shallow tin pans on a board. After the first day he worked at stirring up the ingredients in vats, cleaning out vats, and in carrying dry Paris green to the dry-room. The boiling mass in the vats was heated to a high degree, and his business was to stir it until it was thoroughly dissolved.
He brings this action for damages, claiming that he was a common laborer, ignorant of the co.nstitutents of the vats, and of the dangerous character of his employment, or that the substances handled by him were so poisonous as to endanger his health; that it was the duty of the defendant to notify him of the poisonous character of the substances used in his employment, and that the vapor arising from the boiling vats was poisonous and dangerous when inhaled, and to provide him with appliances, to wit, rubber garments, boots, gloves, respirators, and sponges, to be used and worn by him in his employment, so as to prevent the poisonous materials, and the steam arising therefrom, from coming in contact with, and from being inhaled and absorbed into, his body and system; that defendant did not perform this duty, by reason of which plaintiff was greatly injured and damaged.
The testimony shows that the plaintiff, soon after he commenced work, began breaking out on the exposed parts of his body, and at the end of the five days had to quit work,-arid finally went to Harper’s Hospital. There seems to be no doubt that these sores were caused by mineral poison coming in contact with his skin while in his employment with defendant. It was further claimed that this poisoning, and the inhaling of the-vapor or steam from the boiling vats, caused partial paralysis of his lower limbs, and permanent injury to his health. This was denied by the defendant, and testimony of experts was given tending to show that the symptoms of paralysis, defective eye-sight, and other permanent ailments were those of white lead poisoning, and not of arsenic, it being shown that he had worked in white lead works before his employment by defendant. The jury rendered a verdict for the defendant. The-plaintiff brings error.
The record shows that plaintiff, by his counsel, contended that the vapors or steam that arose from the tubs or vats in which the arsenic and sulphate of copper were-dissolved to form Paris green, which plaintiff inhaled, were poisonous and deleterious to human health, and in such vapor and steam would be carried small particles of the arsenic and copper, which, in coming in contact with his skin, and particularly the soft spongy parts of the body, would poison and injure him, and produced the-evidence of medical experts to sustain this contention;, while the defendant claimed that such vapors would be composed entirely of water, and therefore harmless, and also sustained its theory by the evidence of medical' experts. The court seems to have accepted the testimony of the defendant’s experts as conclusive, and refused to permit the plaintiff’s counsel to argue to the jury that plaintiff received any part of his injuries from the inhaling of the vapors, and directed the jury that the plaint iff could not recover upon this branch of his claim; basing his opinion upon the testimony of defendant’s foreman, who gave evidence that the minerals used did not become fused in vapor until they were heated to 250 deg. fahrenheit, and stated that a heat of 150 deg. was all that was needed to manufacture Paris green. This -was clearly error. It was for the jury, and not for the court, to determine which theory of the experts was the true one.
It is suggested by defendant’s counsel that, inasmuch as it was conceded that the pustulation or breaking out upon the body was caused by contact with the arsenic, and the court directed the jury that the plaintiff was entitled to recover his damages suffered by such pustulation, unless it was shown that the defendant notified him of the danger of the arsenic touching the body, and its poisonous character, and, under this direction, the jury found for the defendant, therefore it must be considered that the jury found he had such notice; and consequently, if the question of inhalation had been submitted to them, the verdict nevertheless would have been the same. But. we find nothing in the record showing that he was-notified of any danger in inhaling these vapors, and. therefore a new' trial must be granted. In view of this., disposition of the case, we will notice such assignments-of error as we deem important and likely to arise again upon another trial.
The plaintiff proved by the testimony of himself and by • Charles Brangshed, who was foreman while plaintiff was; employed by defendant, that he was not informed of the-dangerous proprieties of Paris green. Brangshed went, further, and testified that he had been told by the superintendent, one Abel, not to tell the men at work there,, because if they knew that the contents of the vats were-800 pounds of arsenic in one vat in a powder, and about. 700 pounds of sulphate of copper, and about the same weight of soda, these being the ingredients of the vats, they would not continue to work there.
“I was told not to --tell the folks that was around there what the stuff was. I was not told not to tell whether it was Paris green or not, but I was told- not to let the folks know what the stuff was, — wh.at we used it for. I was told not to let the employés know what the ingredients were which entered into Paris green. I had the formula. I was told not to let any one know what the stuff was.”
The defendant was permitted, in rebuttal of this testimony, to prove by men who‘worked there at other times than while plaintiff was employed that the superintendent informed them of the dangerous character of the work. The superintendent was not sworn to dispute Brangshed’s testimony, nor was his absence accounted for. The admission* of this proof was also error. And the testimony of employés to the same effect, while the plaintiff was working there, was not admissible relative to what the superintendent told them, unless it was shown to be in the presence and hearing of plaintiff. The fact that the plaintiff’s counsel, in his opening, stated that no caution was given to any of the men in defendant’s employ could not render excusable the introduction of this testimony. The fact in issue was whether or not the defendant notified the plaintiff of the danger, and the evidence in regard to notice should have been confined to this issue. It would have been competent to have shown by Abel that he never told Brangshed to keep the men in ignorance of the poisonous nature of the materials used, but the fact that the superintendent notified other men of their danger could not be used to disprove Brangshed’s statement of what the superintendent told him, or as tending to show that plaintiff was notified.
It was not competent to show that, since the plaintiffs Injury, contracts had been drawn up by the defendant, and the men required to sign them, waiving all damages on account of injuries that might be received from the poisonous qualities used in their work; nor that danger signals had been put up in the shops. This proffered testimony was properly rejected.
The plaintiff’s counsel attempted to show by some of their medical experts that certain medical works, naming them, were standard authorities. No previous mention of these works had been made, or reference to them by any of the medical witnesses. The court committed no error in refusing to permit the witnesses to answer the questions. The counsel’s object, as they state in their brief, was to show that their witnesses were sustained in some of their testimony by standard medical authorities. We have held that this could not be done. The contents of medical books are not competent testimony. Marshall v. Brown, 50 Mich. 148; People v. Millard, 53 Id. 63, 77; People v. Vanderhoof, 71 Id. 158, 179. It would be difficult, we think, to show that a medical witness was sustained by a medical book, to which he had not referred, without showing what the book contained, or that it held what the witness testified, which would be the same thing.
The court was correct in charging the jury that it was not the duty of the defendant to inform the plaintiff of the particular ingredients or the formula used in the manufacture of Paris green, if he was notified of their poisonous character, and the precautions to be used against the dangers of working at the vats.
It is complained that the circuit judge practically told the jury that, if they found that the plaintiff knew Paris green was a poison, this would defeat his action, although he was not aware of its effect upon the system if handled as he was working with it. The instructions, taken as a whole, may be open to this complaint. A man might know that Paris green was a poison if taken internally, but not know that it would cause pustulation by handling, or be’ absorbed into the system, and cause poisonous effects, from contact with the outer surface of the body. It was the duty of the defendant not only to inform the plaintiff that it was a poison,' but of the effect it might produce to one working in its manufacture without taking due precaution; and the precaution necessary to be taken should have been pointed out, if known to the defendant, and all proper and reasonable appliances and facilities provided to guard against the dangers to be encountered in the employment. Then the person taking the employment would assume the risks of it.
We find but one other error necessary to be. noted* The action of the circuit judge in entering the jury-room, and giving them instructions, without the presence of counsel or the court stenographer, is properly brought before us by the writ of certiorari in aid of and in connection with the writ of error, and we think such action was error.
The judgment is reversed, and a new trial granted, with costs of this Court to the plaintiff.
Ohajíplin, O. J., McGrath and Long, JJ., concurred. Grant, J., did not sit. | [
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McGrath, J.
This is an action of assumpsit, brought in justice’s court, upon a note given by defendant for a portion of the second semi-annual premium on a policy of insurance issued by plaintiff upon the life of defendant; Defendant, with his plea, gave notice that the signature to the note was obtained by fraud, and that the note was without consideration.
Defendant was a switchman in the employ of the Lake Shore road, at Adrian. One Vanderburg, an agent of plaintiff, who resided at Adrian, and had known defendant for some time, solicited the insurance, took the application, delivered the policy, and took some cash and three notes for the first year’s premium. The policy was dated November 28, 1888. Two of the notes were paid, and defendant refused to pay the third, which matured about September 1, 1889. The application was filled out by Vanderburg, and presented to defendant for signature. Defendant insisted that Vanderburg had been acquainted with him for years, knew all about his occupation, and filled out the application largely from his (Vanderburg’s) knowledge of the facts; that no questions were asked as to occupation, and defendant did not read the application before signing it, but relied upon Vanderburg; that defendant was a switchman engaged at the yard, and was upon and about trains as they were being made up; that the policy, with a copy of the -application attached, was delivered to him in January, 1889; that some days after-wards, in examining the policy and copy of the application, he discovered that his occupation was given as “ assistant yard-master, does no switching, don’t go near trains;” that thereupon he called Vanderburg’s attention to this misstatement, and told him that he was not a yard-master, and that he did switching, and did go near trains; that thereupon Yanderburg took the policy for the purpose of sending it to the company for the purpose of correction; that afterwards Yanderburg returned the policy to defendant, saying that the change had been made, and that it was all right; that, supposing that the application had been changed to conform to the facts, defendant did not examine it for some time, but when he did finally examine it he found that it read “assistant yard-master, don't couple cars or do switching;'' that upon this discovery defendant saw Yanderburg, accused him of again misrepresenting defendant, and told him that he (defendant) was not protected by the policy, and tendered it back to Yanderburg; that Yanderburg claimed that he had no right to receive it; that several conversations were had with Yanderburg, who finally advised him to send it back to the company, which he did on or about September 6, 1889. The application contained the usual printed clause, declaring—
“That the above are fair and true answers to the foregoing questions, and I hereby agree that these statements, with this declaration, shall form the basis of the contract for assurance, and that any untrue or fraudulent answers * ■ * * shall violate the policy, and forfeit all payments made thereon.''
The policy provides in terms that “no agent has power to change the terms of this contract,'' and contains the further provision that—
“ The person whose life is hereby insured shall not engage in blasting, * * * or be regularly employed * * * as a mariner, engineer, fireman, conductor, or laborer in any capacity * * * upon railroad trains.''
The plaintiff requested the court to charge the jury as follows:
“1. You are directed to find a verdict for the plaintiff for the amount of principal and interest of note in issue.
“2. Even should you find that the agent, Yanderburg, wrote wrongfully the answers in the application for insurance by Reed, which untruthful answers were known to him, Reed, or not, this fact would not relieve the plaintiff from the obligation fixed in the policy; and, in case he should have died during any of the time, prior to the time fixed for the payment of the note, plaintiff would be obliged to pay the wife of insured $1,000, and hence defendant is liable on his note.
“3. There is no evidence before you that you can consider that will warrant you to find a verdict for the defendant.”
The court refused these requests, and instructed the jury as follows:
“You are instructed, as a matter of law, that if Mr. Reed, in answering the question as to what his occupation was, said to Mr. Yanderburg that he was engaged in the yard there as a switchman, making up trains, and doing general, work about the yards there in connection with trains, and Mr. Vanderburg put in his application, which was the foundation for the issuing of the policy, the statement that he did not go near the cars or do switching, then, I think, gentlemen of the jury, that that would be such a misstatement or fraud practiced upon the insured here as that he would be entitled to have these proceedings rescinded; that is, the policy and notes set aside and held for naught, from the time at least when such rescission should take place upon his part. * * * You will take all these circumstances into consideration; and if he did know it, but afterwards acted on the policy as if it was in force, and he was bound by it, and the company was bound by it, then he could not assert the defense which he is seeking to assert here; or if the agent, Mr. Vanderburg, put into this application the language as used by the defendant in stating what his occupation was, as he claims that he did, why then, of course, Mr. Reed would not have the right to assert that by way of defense to this note, because, if there was any fraud then, it would be the fraud of the defendant, and not the fraud of the company or its agent.”
The jury brought in a verdict of no cause of action.
We think the court was correct, both in the refusal to give the plaintiff's requests and in the instructions given. The application here contained absolutely no restriction upon the powers of the agent. The applications are usually filled in in the handwriting of the agent, as was done in this case; and agents are nowhere in the blank prohibited from filling in the application. Indeed, on the face of the printed blank, the very first sentence is as follows: “This blank must be filled by the agent;” and again, in a blank left at the head of the printed blank, is the following:
“ Agents will note here anything specially desired regarding the policy applied for, and to whom and where it is to be sent.”
Although these appear in what might be termed the “caption” to the application, and not in the body of the application, yet to a person not familiar with these blanks it would be misleading if it is intended that the application is to be filled out by the applicant. Again, in the body of the application, is the following:
“ N. B. Agents will be particular to see that all questions in the application are fully answered, particularly whether the age and date of birth agree.”
Again, in the general printed declaration in the application, is the following:
, “ It is hereby agreed that the policy shall not be in force unless the premium is actually paid to the company or its authorized agent.”
At the bottom of the application are the following printed words: “Approved and recommended by (T. W. Yanderburg) agent;” the name of T. W. Yanderburg being written in in this case. At the head of the filing blank, upon the back of the application, occurs the following: “Agents will not fill up this .filing,” , Yander burg received the premium in notes and cash for the company, and must be considered the duly-authorized agent of the company. Had the blank been presented to and read over by the insured before it was filled in, there is nothing contained in it which did not warrant his acting with the agent, just as he claims he did. A copy of the application was attached to the policy, and delivered to defendant. The policy contains this provision: “No agent has power to change the terms of this contract;” and also the following:
“For the information of the assured, and in order that any unintentional errors or omissions which hereafter may be found to exist may be corrected, a copy of the application upon which this policy is based is hereto attached.”
It must be conceded that the representation in the application as to the occupation of the insured is untrue, and, if made by the defendant, it would be a good defense to an action upon the policy. The court instructed the jury that, if made by the defendant, it would be no defense to the action upon the note. The jury found that it was not the act of the insured, but of the agent of plaintiff. It has been repeatedly hold that, when an application is reduced to writing by an agent of the insurer, upon oral statements of the applicant, the conversation between the agent and the applicant at the time of putting it in writing is admissible as bearing on the question of the actual contents of the paper, or the representations of the insured; and that, when it appears that the insured fairly and correctly informed the agent as to any fact, and the agent unskillfully,carelessly, or fraudulently misrepresented the insured as to that fact, such unskillfulness, carelessness, or fraud is the unskillfulness, carelessness, or fraud of the company, •and is no defense to an action on the policy. Mich. State Ins. Co. v. Lewis, 30 Mich. 41; North American Fire Ins. Co. v. Throop, 22 Id. 146; Crouse v. Insurance Co., 79 Id. 249, and cases cited. In Aetna, etc., Ins. Co. v. Olmstead, 21 Mich. 252, Mr. Justice Cooley says:
“ The agent of the insurance company assumed to have all the requisite knowledge for preparing the proper papers, and> volunteered to make them out. He had all the necessary information for that purpose, and nothing was concealed from him. If the application is not in due form, and if it fails to give all the information ■called for, it must be either because the agent was too ignorant of the business to be properly intrusted with the agency, or because he was so negligent or' reckless that he did not trouble himself to draft them correctly, or, lastly, because he was disposed to take Olmstead’s money on the fraudulent pretense of giving him indemnity when he knew he was giving none whatever.
“ The general rule undoubtedly is that, in the absence of fraud, accident, or mistake, a party must be conclusively presumed to understand the force of his contracts, and to be bound by their terms. But it cannot be tolerated that one party shall draft the contract for the other, and receive the consideration, and then repudiate his obligation on the ground that he had. induced the other party to sign an untrue representation, which was, by the very terms of the contract, to render it void. * * * The forms and requirements of different insurers are different, and when an agent, who at the time and place is the sole representative of the principal, assumes to know what information the principal requires, and, after being furnished with all the facts, drafts a paper which he declares satisfactory, induces the other party to sign it, receives and retains the premium moneys, and then delivers a contract which the other party is led to believe, and has a right to believe, gives him the indemnity for which he paid his money, we do not think the insurer can be heard in repudiation of the indemnity on the ground of his agent’s unskillfulness, carelessness, or fraud. If this can be done, it is easy to see that community is at the mercy of these insurance agents, who will have little difficulty, in a large proportion of the cases, in giving a worthless policy for the money they receive."
In the present case, upon the discovery of the fraud defendant had the right to rescind the contract. He wa< not bound to subject the beneficiary named in the policy to a lawsuit after his death, to determine the validity of the policy, especially as in that event his testimony would be wanting. Again, it is not claimed here that the company had actual notice of the facts as to defendant's occupation, but that it had constructive notice only; but it must be remembered that a copy of the application was attached to the policy, and delivered to the defendant, in which case, under the express provisions contained in the policy relating to the correction of “ unintentional errors or omissions" in the application, it was defendant's duty to call attention to this misrepi’esentation, otherwise the defendant might have been chargeable with a fraud upon the company; for while the company would not be able to avoid a policy by reason of the rule of law that its agent's wrong was the company's own wrong, of which it could not take advantage, it would be otherwise had the insured conspired with the agent, or had the insured been fully informed as to the representations made, and the contents of the application, and neglected to bring it to the attention of the company.
The judgment is affirmed, with costs of both courts to defendant.
The other Justices concurred. | [
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Morse, J.
The Kalamazoo & Hastings Construction Company, a limited copartnership, operating the Chicago, Kalamazoo & Saginaw Eailway, being in the actual occupancy of a piece of land used by it as depot grounds in the city of Kalamazoo, leased to the plaintiff, also a limited copartnership, operating a hack and bus line in said city, a certain portion of said premises, described in the lease as—
“That piece of ground lying and being between the sidewalk on the .east side of Walbridge street and the side track of the Chicago, Kalamazoo & Saginaw Eailway, in said city, being 70 feet in length from the south end of the depot there situate, said piece or parcel of ground to be occupied by said second parties for the purpose only of an omnibus, baggage-wagon, and back stand, at and about the time of the arrival and departure of trains upon said railway: Provided, said second parties shall permit the United States mail-wagon and the American Express Company’s wagon, doing business in the city of Kalamazoo, to stand and occupy that portion of said piece or parcel of land which shall be assigned for that purpose by Lewis Sergeant, — for the term of two years, commencing on the 21st day of July, 1890, and ending on the 21st day of July, 1892.”
Lewis Sergeant allotted the mail and express wagons 2ff feet of ground immediately south of the depot. He also posted in two conspicuous places, upon and adjacent to the depot, the following notice:
“Chicago, Kalamazoo & Saginaw Railway Co.
“‘General Oeeice.
“Kalamazoo, Mich., July 21, 1890.
“ Notice to whom it may concern:
“ The Kalamazoo Hack & Bus Co. have leased that piece of ground which lies within a distance of seventy (70) feet immediately south of depot at Kalamazoo, and between side track and sidewalk on east line of Walbridge street. • Said lease contains provision that Bus Co. will assign place on this ground for American Express Co., and mail-wagon. L. Sergeant, '
“Snpt. O., K. & S. Ry.”
Mr. Sergeant also informed the - hack and bus men generally that the ground described in said lease had been leased exclusively to the hack and bus company (the plaintiff), and that others must keep off. It also^ appeared that previous to the making of this lease this ground had been occupied by all the hack and bus men ■in the city, the defendant, among others, having been in the habit of going upon this ground and standing indiscriminately about the depot seeking passengers.
On August 1, 1890, the defendant, Sootsma, placed his hack upon the grounds so leased to plaintiff, and, upon being requested to'move therefrom, refused to do so. He remained there until an incoming train, and obtained a passenger, and drove away with him. The plaintiff thereupon commenced suit in trespass against Sootsma in justice’s court, which resulted in judgment for defendant. Plaintiff appealed to the circuit court, where the circuit judge directed a verdict in favor of the defendant, on, the ground that the lease was invalid, jas opposed to public policy; that the lessor had no right to grant the exclusive use of the land to the plaintiff for the purposes mentioned in the lease.
There was some contention in the court below, and in this Court, regarding the right of plaintiff to bring an action of trespass under this alleged lease, the defendant claiming that it was a mere license conveying no property in the soil. In the view we take of the case, this question does not become material.
The plaintiff gave evidence in its behalf, upon the trial in the circuit, tending to show that, in the selling by the construction company of tickets upon its road to points upon other roads, west of Kalamazoo, a coupon was attached to the ticket, entitling the passenger to transfer with baggage across the city of Kalamazoo to the railway station at which the journey was to be resumed, and that an arrangement had been entered into with the plaintiff to perform such service, and carry such baggage and passengers; that, prior to the making of the lease, there had been trouble between the hack-men and the busmen at the depot. Hack-men, not connected with plaintiff’s line, in some instances, solicited and secured passen. gers, who supposed they were to be carried .on these transfer coupons, and,, at the end of the trip, refused to accept such coupons, and charged them for so carrying them. This made trouble between the railroad company and passengers, and also was the cause of disorder and •quarrels between the various hack and bus men'about the •depot, and the lease was made to avoid such trouble and annoyance. It was not shown, however, that defendant had ever been engaged in any quarrels, or that he had refused to carx’y passengers upon such coupons, or had solicited passengers with the idea that he would carry them upon the coupons, and then refused to accept them, and demanded at the end of the trip other compensation for carrying them. But it is no matter for what purpose-this lease was made, as long as no improper action upon the part of the defendant was shown to have induced it.
The granting of this exclusive privilege to occupy this favored spot of ground, and one theretofore used customarily by all hack-men and bus-men, to the plaintiff, was a discrimination against the defendant, as well as all other hack-men and bus-men, not in the employ or service of the plaintiff, thus giving to the plaintiff a monopoly of the railroad company’s grounds, for the standing of hacks and buses, and the solicitation of passengers therefor.
How. Stat. § 3355, provides that—
“All railroad coi’porations shall grant equal facilities for the transportation of passengers and freight to all persons, companies, or corporations.”
A violation of this statute is punished by a penalty. This statute evidently does not 'relate entirely to the mere carriage in the cars of the road. To be effective, it must be construed to include also not only the receiving of such passengers and freight at its depots, but, as well, the receiving of them by other “persons, companies, or corporations” at the point upon its road where the carriage ends. The access to its depots must be free and equal to all, whether it be to take passage or leave the trains. No railroad company, under this statute, would be permitted to give to one hack and bus company exclusive access to its depots, or even better access than to others, in the carriage of passengers or freights to its trains. Nor can it any more appropriately give such exclusive or better privilege to such company taking passengers or freights from its trains, to be transported from thence elsewhere. Therefore, the circuit court was right in directing the verdict as he did.
But independently of the statute, upon principle, the plaintiff could not recover in this ease. A railroad company can make all needful reasonable rules and regulations concerning the use of its depots and grounds, and can exclude all persons therefrom who have no business with the railroad or the passengers going to and coming from the trains or depots, and it probably can prohibit all persons from soliciting business for themselves upon its premises; but it cannot, arbitrarily, admit one common carrier of passengers or freight to its depots or grounds, and exclude all others,' for no other reason than that it is for its own profit or pleasure. Such rules and regulations must touch and affect all alike. It may determine the distance from its depot or track at which persons soliciting passengers may stand while on its grounds, but this determination ’must affect and apply to all. To permit a railroad company upon any pretense, except of wrong or misconduct on the part of the person excluded, to allow one hack-man or line of hacks to occupy a place upon its grounds which is denied to another, or to set apart the most favorable ground, as in this case, to one company, and to exclude the others therefrom, would be, in the language of Justice Field, in Railroad Co. v. Tripp, 147 Mass. 43 (17 N. E. Rep. 95),—
“To enable a railroad corporation largely to control the transportation of passengers and merchandise beyond its own line, and to establish a monopoly not granted by its charter, which might be solely for its own benefit, and not for the benefit of the public.”
The rules and regulations of a railroad company in this respect must be not only reasonable, but they must not unnecessarily infringe upon the rights of the public, and others having or carrying on business in connection with railroad traffic' or travel. Summitt v. State, 8 Lea, 413. It has been held in Massachusetts that a railroad corporation may contract with one to furnish the means to carry incoming passengers, or their baggage or merchandise, from its stations, and may grant to him the exclusive right there to solicit the patronage of such passengers; but three of the seven members of the supreme court dissented therefrom, giving, it seems to me, much the better reason for such dissent. Railroad Co. v. Tripp, 147 Mass. 35. I can find no other case holding this doctrine. In Cravens v. Rodgers (Mo.), the contrary doctrine is held. The granting to the owner of one bus line the exclusive right to the best part of a railway platform at the depot, and confining a rival line to other parts of the platform, where the chance of getting passengers was not so good, was held to be a discrimination tending to destroy competition, and to encourage a monopoly, which is obnoxious to the spirit of our laws, and contrary to the constitution of Missouri, which prohibits “discrimination in charges or facilities in transportation * * * between transportation companies and individuals, or in favor of either.” 14 S W. Rep. 106. And in Railway Co. v. Langlois (decided by the supreme court of Montana, May 1, 1890), reported in 24 Pac. Rep. 209, it is held that a railroad company cannot grant the right to receive and discharge passengers at its platform to one hack-owner to the exclusion of others. In an able opinion, the case of Railroad Co. v. Tripp, supra, is reviewed, and the argument of the majority opinion in that case criticised and controverted. For other cases bearing upon this question, see Marriott v. Railway Co., 1 C. B. (N. S.) 499; In re Palmer, L. R. 6 C. P. 194; In re Parkinson, Id. 554; Camblos v. Railroad Co., 9 Phila. 411; Express Co. v. Railroad Co., 57 Me. 188.
While many of the cases above cited are decided in reference to statutes of the same import as our own, it is clear to me that the action of the construction compány — railroad company — in this case, in leasing this ground to plaintiff, would, if sustained as valid, tend to encourage and promote a monopoly of carriage of passengers from this depot at Kalamazoo, not only to connecting routes of travel upon other railroads, out of the city, but to places within the city, contrary to the spirit of our laws, and against that public policy that refuses to encourage or foster monopolies in any kind of business.
The plea is made that the railway company, owning these grounds, or having the actual occupancy and possession thereof, has the same right of control over them that any citizen would have, under similar circumstances, provided only that it discharges its duties to the public, with reference thereto, as a common carrier. This is true. But when the ground is used in its business as common carrier, and for the purpose of the standing or “setting” of hacks and buses to'solicit the patronage of incoming passengers, then it must use it' for the benefit of all, and not for the privilege of one. It could probably refuse, if such refusal was reasonable in that there was other proper ground for them to stand upon, to permit any hacks or buses to occupy the ground at all; but, if it opens the door to one, all must enter and have equal facilities and privileges one with the other.. No doubt one wrongfully creating disorder or disturbance upon this ground, or defrauding or deceiving passengers, could be lawfully ejected therefrom, and, persisting in such conduct, be forever barred therefrom by the railroad company; but that would be a matter for the railroad- company, rather than the plaintiff. As the-case stands, the plaintiff had no better right upon the premises than Sootsma.
The judgment of the court below is affirmed, with costs.
The other Justices concurred. | [
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Lon®, J.
This is an action of trespass for an assault and battery. Plaintiff had verdict and judgment for $400. Defendant brings error.
The plaintiff is 75 years of age, and an attorney at law. He met the defendant in the hall of the courthouse in Adrian, Lenawee county, where the parties reside. It appears that some litigation had been going on between them, and the plaintiff, on the morning of the claimed assault, accosted the defendant, and told him he had paid the money in on the decree. Plaintiff had filed a bill to redeem from a certain mortgage, and the decree granted him the right to redeem upon the payment of a certain amount, which he had paid to the register of the court in Ingham county. Upon being thus accosted, the defendant replied, “Yes, damn you, you have robbed me out of that farm, and, damn you, I will be revenged.”. ne thereupon struck the plaintiff with his fist, knocking him down, causing a severe contusion on the cheek near the eye. This was the plaintiff’s claim. On his cross-examination he was permitted to testify that before that time he had obtained a decree against the defendant for the possession of the farm; that he was compelled to go to the court, and take proceedings to enforce it; that he made complaint against defendant for contempt of court in not obeying the decree, and the court pronounced the defendant guilty and committed him to jail.
The defendant was called as a witness, and testified that he was imprisoned for such contempt for some six months; that when he was first shut up the sheriff gaYe him for a time the limits of the town. He was then asked by his counsel:
“ Q. Now, did or did not Mr. Millard come up there and order the sheriff to shut you up entirely?
“A. He made the order, the sheriff told me. I did not hear it, no more than the sheriff told me.”
Plaintiff’s counsel moved to strike this testimony out, and it was so ordered. The following question was then asked:
“ Q. Were you shortly after that shut up and kept confined?
“A. Yes, sir; it injured my health.”
This was objected to as immaterial, and the objection sustained. This is claimed as error. There was no exception taken to these rulings, and for that reason they cannot now be considered; but, even if there had been proper exceptions, the rulings were correct. Such testimony was wholly incompetent and immaterial so far as the defense-was concerned. It could not have been allowed even in mitigation of damages. Its admission would rather have.tended to aggravate the damages. It was at a time long-prior to the assault. The imprisonment itself, it appears, was by order of the court for contempt. If the defendant had been wronged by such imprisonment, he certainly had no right to revenge it upon the person of the plaintiff. A defendant cannot give in evidence in mitigation of damages for an assault the acts and declarations of the plaintiff at a different time, or any antecedent facts which are not fairly to be considered as part -of one and the same transaction. To entitle the defendant to give evi dence of provocation in mitigation of damages, the provocation must be so recent and immediate as to induce a presumption that the violence done was committed under the immediate influence of the feelings and passions excited by it. Coxe v. Whitney, 9 Mo. 531; Lee v. Woolsey, 19 Johns. 319.
The only other error assigned relates to the charge of the court. It is conceded that the court correctly stated the rule to the jury upon the question of exemplary damages; but it is urged that, having stated what circumstances would authorize exemplary damages, he should also have stated in the same connection what circumstances would mitigate or reduce the exemplary damages. No instructions to.the jury were asked by the defendant, and the attention of the court was in no way called by counsel to any fact or circumstance which would have mitigated the damages, and no fact or circumstance is pointed out here, and the record does not disclose any. It appears by the record to have been a cruel, wanton, and malicious assault, committed without any immediate provocation, for the purpose of revenge for some claimed previous wrong. It was committed upon an aged and infirm man, who had pleasantly accosted him that morning. We see no error in the case.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Morse, J.
This is a proceeding in the nature of a quo warranto, to test the right of the respondent to hold the office of a judge of the circuit court for the county of Kent.
At the general election in the spring of 1889 an amendment to article 6, § 6, of the Constitution was adopted, providing that the Legislature might provide for the election of more.than one circuit judge in the judicial circuit in which the county- of Kent is or may be situated. The amendment also provided that it should take effect from the time of its adoption. The Legislature, then being in session, thereupon passed Act No. 97, Laws of 1889, creating the office of an additional circuit judge for the seventeenth judicial circuit, composed of the county of Kent, and declared such office vacant from the time the act took effect, and provided that the vacancy thus declared should be filled by appointment by the Governor.
“The person so appointed to hold his office provisionally, from the time of his appointment, until the general election for township officers in the sjjring of 1893, or until his successor shall be elected; and the term for which said judge shall be appointed shall expire December 31, 1893.”
This act was given immediate effect, and was approved by the Governor May 17, 1889. The Governor appointed the respondent as such circuit judge June 1, 1889, and he has since exercised the duties of such office.
The first contention of the relator is that the act was never properly or constitutionally passed by the Legislature. The history of the bill, as far as this question is concerned and necessary to be shown in its consideration, is as follows: The bill was introduced in the Senate February 16, 1889, and referred to the committee on judiciary. May 2, 1889, said committee reported the bill with amendments, and recommended its passage. The rules were suspended, and the bill passed and ordered to take immediate effect. It then went to the House, and was there amended, passed, and given immediate effect. May 3, 1889, the Senate, on its return from the House, concurred in the House amendments, and referred the bill to the committee on engrossment and enrollment. 1 Senate Journal, p. 797. May 7, 1889, the House requested the Senate to return the bill. The Senate thereupon ordered the committee to return it to the Senate, which having been done, the face of the journal as then made up shows the following proceedings:
“Mr. Wesselius moved to reconsider the vote by which the Senate passed the bill, which motion prevailed. The question being on the passage of the bill, on motion of Mr. Wesselius, the bill was ordered returned to the House." Id. p. 811.
At the close of the Senate journal on the page before the certificate of the secretary, which bears date July 3, 1889, is a page headed—
“ Errata in the Record of Bills. (Minor errors are not noted; only such as affect the record of bills in their consideration by the Senate. The corrections are all made upon the authority of the records kept' by the bill clerk, under the supervision of the secretary.) * * * On page 811, lines ten and eleven, the vote reconsidered was not the passage of the bill, but the vote by which the Senate concurred in the House amendments to the bill on page 797.”
After the proceedings taken as shown on page 811 of the Senate journal, the bill was returned to the House, and there further amended, returned again to the Senate, the House amendments there concurred in, the bill engrossed and enrolled, signed by the proper officers of both Houses, and approved by the Governor.
The defect claimed in the passage of the bill is that the face of the Senate journal shows, on page 811, that the vote by which the Senate passed the bill was reconsidered, leaving it standing before that body as if it had never been passed; that in that shape it was returned to the House, and, when it came back to the Senate) the House amendments were concurred in, but the bill itself was not passed by the Senate, and therefore failed to become a law; that the secretary had no authority to make the correction found in the “ errata.” It does not affirmatively appear at what time the secretary made this correction of the record, but it is to be presumed, from the place where the errata is found, that he made it on or before the date of his certificate, July 3, 1889, as the certificate follows the correction. The Legislature adjourned sine die upon that date, and, as every intendment is to be taken in favor of the correctness of legislative action, it must also be presumed that the correction was made' before the adjournment of the Senate. If it was done, as we must presume that it was, before the final adjournment of the Legislature, we must also presume that it was authorized by the Senate, and that the true journal entry of the proceedings is as corrected by the “errata.”
It also appears from the journals of the Senate that, on the first day of the session of the Legislature, the following resolution was adopted:
“ Resolved that the reading of the daily journal be disjiensed with for this session, and that the secretary be authorized to make all necessary corrections in the journal from day to day.”
While this may not have been the best practice in order to secure absolute verity of the record, there is no prohibition of such practice to be found in the Constitution, the only provision being that—
“Each House shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy.” Article 4, § 10.
Under this resolution, the secretary of the Senate was authorized to make this correction at any time before the final adjournment. We have repeatedly held in this State that it is competent for the courts to go behind the authenticated act, and to examine the journals of the Legislature, to ascertain whether or not the same was constitutionally passed; but where this is permitted the whole current of authority is one way as to the presumption being in favor of the validity of the act. This presumption in favor of the legality of legislative action in the passage of a bill is so strong that it has always been held that the evidence found in the journals must be of an affirmative character, and so clear and satisfactory as to be conclusive, in order to overthrow the prima facie correctness of legislative action, which attaches to every act which has been duly authenticated by the proper authorities. Hart v. McElroy, 72 Mich. 450, and cases there cited. And the record as it appears upon the face of the journal, taken as a whole, without the errata, to one at all acquainted with legislative practice, shows clearly enough that the entry upon page 811 is a mistake, and that the “ errata ” is correct. The proper motion to have been made at that stage of the proceedings was, as appears in the errata, to reconsider the vote by which the Senate had concurred in the House amendments. Then it could have been properly sent back to the House as it was, and all the subsequent proceedings, as shown by the journal, would have been reguiar and usual. But if the vote on the passage of the bill had been reconsidered, being a Senate bill originally, it could not have properly been returned to the House. There is no doubt in our minds, from an examination of the whole record, that the correction by the secretary of the Senate sets out the action of the Senate as it was taken at the time, and that the mistake is upon the face of the journal. It follows that the bill was properly passed.
It is further contended that the respondent was appointed before the act took effect. It is shown by the journal that the Senate when concurring in the House amendments made no separate order that the bill as amended should take immediate effect. This was not necessary. When the bill was originally passed by the Senate, it was ordered to take immediate effect. The bill as amended by the House was by that body ordered also to take immediate effect. This being originally a Senate bill, it was not necessary, after it bad once been given immediate effect, and the action of the Senate thereafter was confined to concurrence in the House amendments which had by that branch of the Legislature been ordered to take immediate effect, for the Senate again to order by a separate vote that the bill as amended should take immediate effect. Concurrence in the action of the House as to the amendments must be considered as a concurrence in the order that such amendments take immediate effect. And this has been, we think, the uniform practice of the Legislature in such cases.
It is further contended that the Constitution does not authorize the Legislature to provide for the appointment of a circuit judge created under this amendment to the Constitution. The Constitution, Art. 6,' § 6, as amended in 1889, provides that—
“The Legislature may provide for the election of more than one circuit judge * * * in the judicial circuit in which the county of Kent is or may be situated.”
It is argued that this clause, standing aloné, does not authorize the appointment of a circuit judge, and this may be conceded. But this section does not stand alone. It is now a part of the Constitution, and must be construed with the whole of that instrument. It is evident that the plain intent of this amendment was to put the additional judge of the Kent circuit, authorized to be created, under the Constitution and laws of the State applicable to the circuit judges then in existence, and that his term of office should be limited and governed by the Constitution, and his successor be chosen at the same time and in the same manner as other circuit judges. Article 6, § 20, of the Constitution, provides that—
“The first election of judges of the circuit court shall be held on the first Monday in April, 1851, and every sixth year thereafter. Whenever an additional circuit is created, provision shall be made to hold the subsequent election of such additional judges at the regular election herein provided.”
The manifest intent of the Constitution is that the judiciary shall be elected, and it would have been more in harmony with the spirit of the Constitution, if not with its letter, if the Legislature in creating this office had provided for the choice of such circuit judge by a special election. In such case, the person chosen would have held the office without question until December 31, 1893, and his successor would not have been chosen until the spring election of that year. We are of the opinion, however, that a special election is not absolutely necessary, and the Legislature may authorize the Governor to make a provisional appointment. Such has been the practice, and there is authority sustaining it, to which we will refer hereafter.
It was competent for the Legislature, at once upon the adoption of this amendment, to create the office of such additional judge, and to prescribe his duties. As soon as the office was created, a vacancy existed whether the Legislature so declared it or not. Smith v. Askew, 48 Ark. 87 (2 S. W. Rep. 350), and cases cited. The Constitution provides that—
“The Legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy, where no provision is made for that purpose in this Constitution.” Article 4, § 37.
Also that “when a vacancy occurs in the office of judge of the Supreme, circuit, or probate court it shall be filled by appointment of the Governor, which shall continue until a successor is elected and qualified. When elected, such successor shall hold his office the residue of the unexpired term.” Article 6, § 14.
In this case we find a vacancy existing as soon as the office was created, not only as the -legitimate result of such creation, but also by express declaration of the Legislature. Act No. 97, Laws of 1889. The Legislature had power to authorize the Governor to fill such vacancy provisionally, until the next general election, or to call a special election. Instead of the S2iecial election, the Legislature saw fit in the act creating the office to confer the power of appointment upon the Governor. A similar question was raised in Attorney General v. Weimer, 59 Mich. 580, 589, where a new county was created. The county officers provided by the Constitution are as clearly made elective officers under that instrument as are circuit judges, yet we held in that case that the Legislature had the power to authorize the Governor to fill the county offices, upon the organization of a new county, 2irovision-ally by a2ipointment, to hold until the next general election for such offices. The same principle governs the case at bar.
But, while, it was competent for the Legislature to bridge over the time intervening between the adoption of the act and the next general election, by providing for appointment by the Governor, the act, in so far as it undertakes to fix the term of such appointee, and to declare that such term shall not expire until December 31, 1893, is unconstitutional and void. The term of such appointee under the Constitution could not extend beyond the next general election, or until his successor was elected and qualified.
As before said, the manifest intention of that instrument is that the circuit judges shall be elected, and only in case of a vacancy occurring, or the creation of an additional circuit judge in the interim between the general elections, can a circuit judge be appointed by the Governor; and, at the next general election after such appointment, his successor can be and should be elected. In case no election was held, he would, however, con tinue in office until such, time as his successor was duly elected and qualified. It is not necessary here to determine whether or not the spring election of 1890 was a general election; but a general election was held November 4, 1890, and any spring election at which Justices of the Supreme Court and Regents of the University are elected is necessarily also a general election, and is now so regarded. Westinghausen v. People, 44 Mich. 265. Article 6, § 20, of the Constitution, together with section 6 of the same article, construed with section 14, Art. 6, in relation to the filling of vacancies, make it manifest that it is contemplated that the additional judge shall also be elected, and the only authority for appointment that can be upheld is that of provisionally filling the vacancy caused by the creation of the office until the next general election shall occur.
In People v. Lord, 9 Mich. 227, the Constitution is referred to, and it is clearly enough there held that an act of the Legislature providing that, when a vacancy in a county office shall have been filled by appointment of the Governor, the appointee shall hold for the unexpired portion of the regular term, could not constitutionally apply to the office of judge of probate, as it would be in express violation of section 14, Art. 6, which is the same section relating to the filling of vacancies in the office of Supreme and circuit judge. Yet, 'under this act the respondent’s term of office is extended from June 1, 1889, to December 31, 1893, passing two general elections in the fall, and at least two general spring elections, a period of over four and one-half years. If .this act can be held valid to this extent, then an additional circuit might be created by the Legislature in the January after the regular spring election of circuit judges, and the Governor authorized to fill the office by appointment for five years eleven months . or more, thus depriving the people of the right to elect a circuit judge in effect for the full term of six years, in disregard of the plain intent and mandate of the Constitution.
But this excess in the fixing of the term of the Governor’s appointee in Act No. 97, Laws of 1889, does not void the whole act or the appointment of the i-espondent. This part of the act can be treated as a nullity without destroying so much of the act as creates the office and provides for the appointment of an incumbent to fill the vacancy. The respondent was, therefore, legally appointed circuit judge, and is'authorized to hold his office until his successor is legally elected and qualified. The information' in this case was filed September 10, 1890, and at the time issue was joined the respondent was without doubt legally exercising and holding the office of circuit judge of the Kent circuit. The writ must therefore be dismissed.
On October 4, 1890, Allen C. Adsit applied to this Court for a writ of mandamus to compel the Secretary of State to send to the sheriff of Kent county a written notice stating that' a vacancy existed in the office of additional circuit judge of Kent county, and that such vacancy would be supplied at the next general election, on November 4, 1890. October 7, 1890, we issued an order to the Secretary of State to show cause why the writ as prayed for should not be granted, returnable October 14, 1890. Upon the last-named day, the Secretary’s answer was presented by the Attorney General, denying that any vacancy existed, on two grounds:
1. That the law creating the office (Act No. 97, Laws of 1889) provided that the term of the Governor’s appointee should not end until December 31, 1893, or his successor be elected until the April election of the same year; and,—
• 2. That the act was never _ constitutionally passed authorizing such circuit judge to be appointed, setting .up the quo warranto proceedings, and the' same reasons alleged by relator in the case at .bar why such act was void.
Upon the hearing of this application for mandamus, at first blush it seemed to us that there were grave doubts whether any such office as additional circuit judge of the Kent circuit existed, and it being then too late for the requisite statutory notice to be given, and not wishing to decide so important a question upon a motion for mandamus, when proceedings to determine the same matter were pending before us by quo warranto, we held that we would not determine the motion then, but hold it until the hearing in this case. • Since that time, it is •claimed that an election has been held for such office, and that November 4, 1890, Allen O. Adsit was duly 'elected as successor to the respondent, and an application made by him has been presented to this Court praying for the issue of a writ of mandamus to compel the Board of State Canvassers to canvass the votes polled at such election and returned to said board, and to declare said Adsit duly elected circuit judge in the place of respondent, and for the unexpired term ending December 31, 1893. These applications will be disposed of in a separate opinion.
The other Justices concurred. | [
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Champlin, C. J.
This suit was commenced by attachment before a justice of the peace for the county of Wayne, and resulted in a judgment for the plaintiff. Defendant St. Louis appealed to the circuit court. The bond on appeal recited that “we, Demas St. Louis, as principal, and John H. Ley and Fred Holcomb, as sureties, * * * are held,” etc., and was in the' ordinary form, containing the condition required by statute, and was signed by Demas St. Louis and John H. Ley, but not by Fred Holcomb. John H. Ley appeared before the justice, and justified as to his responsibility under oath by affidavit subscribed by him and sworn to before the justice, and the justice certified as follows: “I hereby certify that the sureties in the foregoing bond justified their pecuniary responsibility as such on oath,” — which certificate was dated, and signed by the justice. The date of the certificate is the same as that of the bond and of the justification of Ley.
In the circuit court the plaintiff again had judgment, which under the, statute was rendered against the defend ants, DeLemos and St. Louis, and the surety in tbe appeal-bond. The judgment was entered on June 12, 1888. Ley then filed a petition in the circuit court for the county of Wayne, supported by his own affidavit, and those of his attorney, John W. A. S. Cullen, and Demas St. Louis, setting up that the judgment in the circuit court was rendered against him without notice, and that the first knowledge he had of it was in the latter part of February or the first part of March, 1890; that he signed the appeal-bond under the express agreement with Demas St. Louis that Fred Holcomb should also sign such bond as surety, and that he would not have signed it otherwise; and that he saw Holcomb's name as surety in said bond when he signed and justified, and supposed that the bond would not be used or delivered until Holcomb had also signed, so as to be jointly liable with him, and supposed and believed that Holcomb had signed the bond until the time last above mentioned; that a gross injustice has been done him by using said bond as an appeal-bond, with his name as the only surety thereon, — and asking the circuit court to vacate said judgment as against him, leaving the plaintiff to his remedy by suit, at law upon the bond. The application was denied by the circuit court, and the case is brought here by writ of error.
The only errors which' can be considered upon the record, if any, are those which go to the jurisdiction of the justice over the persons of the defendants. ' The particular grievances mentioned in this petition of Ley cannot be raised upon writ of error.
It is claimed by plaintiffs in error that the justice's court did not acquire jurisdiction over the person of Louis DeLemos on account of insufficient service of the attachment. The record shows that personal service was made upon Demas St. Louis, and that the officer attached the goods of Demás St. Louis, and that after diligent attempts to find the defendant Louis DeLemos he could not find him in Wayne county, and left a copy of the attachment and inventory, duly certified by him, with Demas St. Louis, in whose possession he found the goods attached, the said Louis DeLemos having no last place of residence within the county. The return of service appears to have been in accordance with How. Stat. § 6841, and the court, in case of two, joint debtors, is authorized to proceed, if personal service is had upon one, by section 6845.
The further objection, that the affidavit was void in stating that there was a debt justly due the plaintiff from Louis DeLemos and Demas St. Louis upon express and implied contract, is not good. If it were in the disjunctive it would be bad; but it is equivalent to saying that the debt is due upon express contract and upon implied contract, which would be the sense if a comma were inserted after the word “ express;” and if it would be good with a comma inserted, it is good without.
We thinlc the judgment of the circuit court ^should be affirmed, without prejudice to any remedy the surety may have for relief in a proceeding, where his claim for relief may be. brought before • a proper forum. Judgment affirmed.
The other Justices concurred.
The record consisted of the proceedings had in justice’s court and in the circuit court, including the petition to vacate the judgment in the latter court as to the surety, and the affidavits in its support, and the order of denial, there being no bill of exceptions in the case. The errors assigned, aside from those specifically referred to in the opinion, were, in substance, that the court erred in rendering judgment; against the surety, because—
a — He never became liable on the appeal-bond, having signed it on the express condition and understanding that the co-surety therein named should also sign the bond, which was only to become operative when such signature was affixed.
b — The bcind shows that it was never perfected “by such signature, and withal was a bond referring to a judgment in favor of the plaintiff, and against Demás St. Louis alone, and did not refer to a judgment against both of the defendants. | [
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Long, J.
The bill in this cause is filed for the purpose of haying the defendants Starkey, Ferris, and Olmsted enjoined from engaging in the business of manufacturing pails, tubs, and other articles of wooden-ware during the period of five years from June 29, A. D. 1888; to enjoin the other defendants from carrying on that business with them; and to enjoin all the defendants from using certain premises in the village of St. Louis, Gratiot county, for the purpose of manufacturing tubs/*pails, etc. The bill asks for an accounting touching complainant’s damages, for a decree requiring the same to be paid, and there is also a prayer for general relief.
The bill shows that the complainant is a corporation organized under the laws of the state of Illinois for the purpose of carrying on the business of manufacturing, buying, and selling wooden-ware, and the materials which enter into wooden-ware; that it was engaged in the business prior to June 29, 1888; that on that date the defendants Starkey, Lerris, and Olmsted were doing business at St. Louis as partners under the name of the St. Louis Wooden-ware Company; that they were engaged in business similar to that of complainant, and owned and occupied certain premises, with á manufacturing establishment, and were possessed of a large quantity of manufactured articles, materials, tools, and other chattels used in their business; that on that date the complainant and the members of said copartnership entered into a contract, which is attached to the bill, the material parts of which will be referred to. By this contract, the firm, in consideration of $6,000, agreed to sell to the complainant their stock on hand, materials, tools, implements, and chattels. The contract contains this clause:
“And said first parties also agree not to become engaged in the manufacture of tubs and pails during the next five years in the states of Michigan, Wisconsin, Illinois, Minnesota, Iowa, Missouri, Indiana, or Ohio, or allow their property at St. Louis, Mich., to be used for that purpose, nor to sell said property to any one for that business, except by consent of said second parties; and in case any of the parties of the first part violate this agreement, they do hereby agree to pay to said second party $2,000 for damages for violating this contract.”
' The contract also contains certain other provisions not necessary here to be noticed. After making the contract the complainant paid the copartnership the $6,000, and received the chattels. The defendants Starkey, Ferris, and Olmsted violated the contract, in that they are now engaged in manufacturing and selling wooden-ware in the premises in question, and, as the bill alleges, have confederated with the other defendants, Palmerton, Fowler, and Newman, to carry on the business with them, and, for the purpose of concealing their transactions, procured the defendants Palmerton, Fowler, and Newman to organize a corporation under the name of the- F. G. Palmerton Wooden-ware Company, Limited, with intent to engage in said business.
The bill further charges that the defendant Starkey pretended to convey the lands in question to his son-in-law, Palmerton; that Palmerton has conveyed them to the Palmerton Wooden-ware Company, and that the business of manufacturing wooden-ware has been carried on on said premises by the Palmerton Wooden-ware Company; that the defendants Starkey and Ferris have active supervision, control, and management of said corporation, and have been making sales of their pails and tubs in all the states of Michigan, Minnesota, Wisconsin, Illinois, Iowa, Missouri, Indiana, and Ohio. The bill charges that the corporation so organized by the defendants is a mere pretense and cover procured to be organized by the defendants Starkey and Ferris; that Starkey and Ferris furnish the capital therefor; that the stock of the corporation is held for their benefit and advantage; that the breach of the contract on the part of the defendants has greatly injured and damnified the complainant.
To this bill the defendants filed a general demurrer, which the circuit judge sustained, and on March 14, 1890, entered a decree dismissing the bill. From this decree complainant appeals.
Complainant's counsel raised but thrqe questions in this Court:
1. That the clause of the contract wherein the defendants Starkey, Ferris, and Olmsted agree not to become engaged in the manufacture of tubs, etc., during the next five years, in any of the eight states named, or permit the premises in question to be used for that purpose without the consent of the complainant, is valid.
2. That the clause of the contract which provides, “in case any of the parties of the first part violate this agreement, they do hereby agree to pay to said second party $2,000 for damages for violating this contract,” does not preclude the complainant seeking relief by injunction.
3. That Act No. 225, Laws of 1889 (3 How. Stat. §§ 9354/ — 9354y?), declaring certain contracts, agreements, undertakings, and combinations unlawful, and providing punishment for those who shall enter into the same, or do any act in the furtherance thereof, has no application in this case.
Counsel for complainant contend, under their first proposition, that this covenant is limited in res.pect to time; that it is also limited in regard to territory, — that is, to Michigan and the seven other states named; that it is a covenant embodied in the contract, by which contract the defendants Starkey, Ferris, and Olmsted sell certain property, the price being fixed at one sum both for the value of the property and for the covenant; that how much of this price is applicable to the property sold, and how much to the covenant not to engage in business, neither the contract nor the circumstances enable us to say; but that it would be presumed that, by reason of the covenant, a larger price was paid by the complainant than would be necessary merely to cover the value of the property sold. Counsel insist that this question has been settled decisively by this Court, and, in support of that proposition, cite Hubbard v Miller, 27 Mich. 15; Beal v. Chase, 31 Id. 490. Counsel also contend that the rule laid down in Beal v. Chase, supra, is approved in Doty v. Martin, 32 Mich. 462; Caswell v. Gibbs, 33 Id. 331; Grow v. Seligman, 47 Id. 610; Watrous v. Allen, 57 Id. 366.
From the view we take of this case, we need discuss but one question. The contract must be declared void on the ground of public policy. The cases cited by counsel for complainant do not sustain the doctrine they contend for here. This case does not fall within that class of cases where contracts have been upheld though the parties, by the contract, were to abstain from carrying on the same business for a particular length of time, and within a designated territory. In Hubbard v. Miller, 27 Mich. 15, the complainant was engaged in carrying on the business of a general retail hardware store in the city of Grand Haven, including the tubing and all necessary apparatus and tools for sinking drive-wells, and was also carrying on the business of putting down drive-wells. Two of the defendants, Miller and Decker, partners under the firm name of George W. Miller & Co., kept a like hardware store in the same city, and, like the complainant, kept on hand the tubing and other materials used in putting down such wells, and were also engaged in putting them down for those who chose to employ them. Complainant purchased the stock, tools, etc., of the defendants Miller and Decker, and paid their price, on condition that they would cease to do that kind of business, and would not keep well-drivers’ tools and fixtures. The defendants violated this contract. The firm of George W. Miller & Co. was dissolved, and after-wards reorganized, with the defendant Akeley as a mem ber of the firm. The new firm shortly after went into business, and kept the same kind of tools and materials as complainant, and carried on the well-driving business. Defendant Decker went into business for himself, and also carried the same line- of stock, and commenced putting down drive-wells. It is true that this Court, on the hearing' here, granted a perpetual injunction. But Chief Justice Christiancy, who wrote the opinion in the case, said:
“Whether it [the contract] can be supported or not, depends upon matters outside of and beyond the abstract fact of the contract or the pecuniary consideration. It will depend upon the situation of the parties, the nature of their business, the interests to be protected by the restriction, its effect upon the public; in short, all the surrounding circumstances; and the weight or effect to be given ,to these circumstances is not to be effected by any presumption for or against the validity of the restriction. If reasonable and just, the restriction will be sustained; if not, it will be held void."
The Court construed this contract as limited to the city of Grand Haven and vicinity. It will be noticed that the circumstances surrounding that case and the situation of the parties show that the complainant purchased a business which was similar to the one which he was then carrying on, and which he continued to carry on thereafter in the same place. The public may have been as well served by this means as though the two or three firms continued the business.
In Beal v. Chase, 31 Mich. 490, to which the learned counsel refer as sustaining their position, it appears that Chase was the publisher of a receipt-book, and carried on the business of printing. Chase sold to Beal his printing establishment, the receipt-book and copyrights, the goodwill of the business, and the right to. use the name of ,Dr. Chase in connection with the book and business, and agreed not to engage in the business of printing and publishing in the State of Michigan so long as Beal remained in the printing and publishing business at Ann Arbor. The whole business was turned over to Beal, and he was to fulfill all contracts entered into-by Dr. Chase, and was to furnish the paper, the “ Courier and Visitant," to all subscribers, etc. It appears that the business was to be carried on as Chase had carried it on, and the property purchased was devoted to the business in which it had theretofore been used; it was not, like the present case, closed up and taken out of the channels of business; and the Court upheld and enforced the contract which the parties themselves had made.
The complainant here is a corporation organized and existing under the laws of the state of Illinois, and having its place-of business in Chicago. It is alleged-in the bill that it is organized for the business of manufacturing, buying, and selling pails, tubs, and other articles of wooden-ware, and manufacturing, buying, and selling staves, heading, hoops, and- other materials which enter into their manufacture, and also for the owning and operating machinery, tools, and implements connected with and used in the manufacture of pails, tubs, and other articles of wooden-ware; that it is extensively engaged in such business; and that it sells its products in the eight great states named. It is not alleged by the bill that, in the making of the contract, the complainant intended to take the business and goodwill of Starkey, Ferris, and Olmsted, and carry on the business of manufacturing these articles in this State, but, from the terms of the contract, it is manifest that it not only intended to take these parties out of the manufacturing business, but to ship the machinery which was used for that purpose out of the State, and close the doors of the shops. Complainant did not purchase the realty. It purchased all the machinery there in use, and the contract shows that it was to be taken down and placed on board the cars. The, interests of the parties alone are not the sole considerations involved here. It is the duty of the Court to see that the public interests are not in any manner jeopardized. r. The State has the welfare of all its citizens in keeping, and the public interest is the pole-star to all judicial inquiries.
Here a large manufacturing business had been established, and presumably it gave employment to quite a number of people. By the contract these people are thrown out of employment, and deprived of a livelihood, and no other of the citizens of Michigan are called in to take their places. The business is no longer to- be carried on here, but is removed out of the State. The parties are not only bound by the contract, if valid, not to manufacture here for a period of five years, but in seven other of the states of the great north-west, teeming with its millions of people. If the complainant could enforce this contract against Starkey, Ferris, and Olmsted, and shut the doors of that shop, and prohibit their again opening them for five years in any one of those states, they could as well make valid and binding contracts to shut the shop of every manufacturing institution in the State, and in the other seven states, and compel the parties now owning and operating them to remain out of business for a term of years, and hold the doors of these shops shut during such period; for the contract which complainant seeks to enforce provides that these parties shall not allow their property to be again used for that purpose within the time limited, nor sell it to any one for that business, except by consent of the complainant, and this under a penalty of §2,000.
A somewhat similar question arose in Wright v. Ryder, reported in 36 Cal. 342. There a contract had been entered into for the purchase by the Oregon Steam Navigation Company of the California Steam Navigation Company of a steam-boat called the “New World,” for the sum of 875,000, and also an agreement by the Oregon Steam Navigation Company that the steam-boat should not be run upon any of the routes of travel on the rivers, bays, or waters of the state of California, for the period of 10 years thereafter. The validity of this contract was before the court, it being claimed that it was void on the ground of public policy, and it was held void, the court there saying:
“If the California Steam Navigation Company, which now occupies our bays, rivers, and inlets with its fleet of steam-boats, should suddenly convey them all to a purchaser on condition that they were not to be employed in navigating any of the waters of this state for a period of 10 years, no one could doubt that this would operate as a great present calamity to the public, and the condition would be void as a restraint upon trade. On the other hand, if a sloop or schooner of 50 tons burden should be sold on a similar condition, the injury to the public would be scarcely appreciable. In like manner, if all the carpenters and masons in a large city should bind themselves not to prosecute their business in this state for a period of 10 years, it might produce great public inconvenience; whereas, if only one carpenter or mason should enter into a similar contract, the loss of his services might not be felt by the public. And yet, in the latter case, we would be bound by a long line of adjudications in England and America to hold the contract void as in restraint of trade.”
In the present case, the defendants Starkey, Eerris, and Olmsted were not only to remain out of such business for the full time specified, but the premises which had been used to carry on the manufacturing by them though npt sold and conveyed under the contract, could not be again used for such, time by them or any other party for the same business. I do not think it needs the citation of authorities to show that contracts of this nature have frequently been condemned by the courts, and h”eld void as unreasonable restraints of trade, and therefore void on the.ground of public policy.
The decree of the court below must be affirmed, with costs.
The other Justices concurred.
Counsel cited 2 High, Inj. § 1139; Hardy v. Martin, 1 Cox, 26; Barret v. Blagrave, 5 Ves. 555; Watrous v. Allen, 57 Mich. 362, 368; Insurance Co. v. Insurance Co., 87 N. Y. 400; Match Co. v. Roeder, 106 Id. 473; Fox v. Scard, 33 Beav. 327.
Counsel cited Const. U. S. Art. 1, § 10; Whitely v. Lansing, 27 Mich. 131; Waldron v. Harring, 28 Id. 493, — on the proposition that a law impairing the obligation of contracts cannot be passed, and Mundy v. Monroe, 1 Mich. 68; Blackwood v. VanVleet, 11 Id. 252; Bank v. Warren, 52 Id. 557,—that denial of a remedy is unconstitutional. | [
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] |
Morse, J.
The bill in this case was filed to restrain the defendants from closing up or in any manner obstructing an alleged public highway in the township of Medina, in Lenawee county,-known as the “Savage' Boad;” it being claimed that the said highway was duly laid out in 1840 four rods in yvidth, commencing at a point on the east side of section 13 in said township, and running to the quarter-post standing on the west side of the section. It is not deemed necessary for the purposes of this case to give here the particular survey of the road made in 1840.
Between sections 13 and 14 there mils a highway, north and south. The defendant Stockwell owns land for eighty rods east of this highway upon the north side of the east and west quarter line of said section 13, and Frank A. Kinney for the same distance upon the south side. Bast of the lands of Kinney are the lands of the complainant, known as the “ Old Savage Farm.” It is claimed in the bill that this highway known as the “Savage Boad” ran upon this east and west quarter line to the center of the section near the west bank of a stream known both as “Tiffin Biver” and “Bean Creek.” It is alleged in the bill that this highway was opened on this quarter line as far as Bean creek very soon after it was surveyed and established, but the part of the road east of said creek was never opened or worked, and no bridge was ever built across the creek. The bill further alleges that the road from the west section line of 13 through to said creek has ever, since been opened, used, and traveled as a public highway, and for over 40 years has been recognized as such by the public and the township authorities, and has been kept open to the width of from 2-J rods to 3 rods; that about 15 years before the filing of this bill this road and the lands adjacent to it were set off into a road-district, and called “ Boad-district No. 42,” and ever since then the lands have been assessed for highway labor upon said road, and a pathmaster elected each year until the one in which this bill was filed; that there has never been any other road or highway, public or private, giving ingress and egress to and from the said Savage farm, now owned by complainant, and that said Savage road is the only way out from and in to this farm.
It very clearly appears from ■ the testimony that this road was laid out by the highway commissioners of Medina; the survey being made March 26, 1840, and recorded April 2, 1841. Whether such establishment conformed in every respect to the statutes then existing is not material, in our view of the case. The testimony shows plainly that the road was opened and worked, as claimed by the bill, as far east as Bean creek; that the then owners of the premises now occupied and owned by defendants, Stockwell and Kinney, when they cleared and worked their lands, built their fences so as to leave this road open to the width of from 2£ to 3 rods, the center of the same being the quarter line. From that time — a period of over 40 years — this road has been universally recognized and treated by the public as a highway, — most of them regarding it as a public way, and the others, as they testify, supposing it was a private way for the benefit of the Savage farm; it being called sometimes the “ Savage Hoad,” and sometimes “ Savage Lane.” It formed by itself a road-district, and work was done upon it. In 1884, the commissioner of highways undertook to discontinue it as a public highway, but the proceedings are not relied upon as being effectual lawfully to do so. There is no doubt in our minds that this road has become a highway by user, and that the fencing up and obstructing of it by the defendants in the spring of 1888 was unlawful, and rightfully enjoined by the court below.
The answer of the defendants relied almost entirely upon the claim that the road had never been fully opened, being, as shown by the testimony in their behalf, at different times fenced up and otherwise obstructed at various places. The circuit judge found and decreed that a public highway existed 2£ rods in width, of which the east and west quarter line was the center, and that the same extended from the quarter stake in the highway running north and south between sections 13 and 14, along the said quarter line to the north-west corner of the lands owned by complainant, which would be 1-J- rods off from the lands of each of the defendants. The defendants were ordered to remove all obstructions placed by them in such highway, and also forever enjoined and restrained from hereafter obstructing, encroaching upon, or in any wise interfering with said highway, so as to impede the full and free use of the same as a public highway.
It was shown that, when Savage lived upon his farm, at several different times he temporarily put fences across the road on his own premises to keep his cattle or stock from getting out, so that he could pasture or water them in the highway, and connected with some of his fields. There was at one time a temporary fence, with a pair of bars, at the extreme west end of the road, and between the lands now owned _ by the defendants; but there can be no serious contention that this road, in so far as it has been declared a highway by the Recree of the court below, was ever abandoned or went into disuse, or that it was not understood by all to be a highway with which the land-owners could not interfere to prevent public travel upon it. It was recognized as a public highway in 1884 by the petition and other proceedings taken to discontinue it; and one of the defendants testifies that he did not meddle with it until 1888, because he supposed that it was a road, until he was advised, about that -time, by a lawyer, that it was not. A very similar case to the one before us is Nye v. Clark, 55 Mich. 602.
Ve do not think it necessary to discuss or state the-evidence in detail. We are all satisfied that a road, — a public highway, — as found by the circuit judge has long been established by user. It is not necessary that a highway established by user should be' of the statutory width of four rods. A highway by user becomes such to the width and extent used. County of Wayne v. Miller, 31 Mich. 447, 449; Lyle v. Lesia, 64 Id. 22; Scheimer v. Price, 65 Id. 638; Kruger v. Le Blanc, 70 Id. 76; Pratt v. Lewis, 39 Id. 7, 12; McKay v. Doty, 63 Id. 581.
There is no doubt that an attempt was made to lay out this highway four rods wide, and across the whole of the section. The fact that no part of the highway east of Bean creek was ever used, or that a portion of it was shut up and abandoned west of the creek, or that the part of it running -between the lands of Stockwell and Kinney was-reduced to a width of two and one-half rods, would not destroy the right of the public or the complainant to preserve the use of such portion as had been for so long a time used as a public highway. A highway, or any portion of it, can be lost by non-user, but that will not affect the portion kept in use. Gregory v. Knight, 50 Mich. 61, 64; Lyle v. Lesia, 64 Id. 22; Coleman v. Railroad Co., Id. 163.
-The decree of the court below is affirmed, with costs.
Ohamplin O. J., McGrath and Grant, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
This suit originated in justice’s court, and involves the sum of $14.35, being the cost of printing the record in the case of Tate v. Hamilton, 81 Mich. 221. Plaintiff recovered judgment in justice’s court. Defendant appealed to the circuit court, where verdict and judgment were, again rendered for plaintiff, and. defendant appeals. The costs now amount to many times the value of the judgment.
The record was printed by one Neinhardt, at the agreed price of 3.5 cents per page. The agreement was made between Neinhardt and the defendant, who was the attorney for Tate in his appeal to this Court. Neinhardt assigned the claim to the plaintiff. The record in this case consists of 112 pages, the briefs for the appellant 32 pages, and the brief for the plaintiff 21 pages.
The principal question in the case, and the one upon which defendant’s liability hinges, is whether the defend ant in the agreement with Neinhardt bound himself or his client. It would be of no value to the profession or to the public to enter into the details of the evidence upon this question. It is sufficient to say that thé evidence upon the part of the plaintiff tended to show that Neinhardt did not know Tate;, that he dealt solely with the defendant; that he gave credit to the defendant; and that the contract was made with him as principal, and not as the agent of Tate. The evidence on the part of the defendant tended to show that he informed Neinhardt that the work was for Tate, and that he made the contract as his agent. A clear and concise issue of fact was presented for the determination of the jury. The court instructed the jury that the controversy was whether Mr. Irwin contracted with Mr. -Neinhardt upon his- own responsibility, rendering himself personally liable, or whether he contracted as the agent of his client, rendering his client liable for the work. All the instructions to the jury given by the circuit judge were based upon this proposition, and were correctly given. They were such as are familiar to the profession, and 'it would be profitless to repeat them here. It is unnecessary to consider any of the specific errors alleged. The jury found the disputed question of fact as to the defendant’s liability against him, and this is conclusive.
Judgment is affirmed, with costs.
The other Justices concurred. | [
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Grant, J.
One Alexander McLean died July 14, 1887. He was the husband of the defendant Jane McLean, and father of the defendants Jennie and Leander McLean. On July 1, 1887, he executed a deed to his wife, conveying to her 90 acres of land. On May 4, he assigned-to the defendants Jennie and Jane McLean a policy of insurance upon his life for the sum of $5,000. The bill in this case is filed to set aside this deed and the transfer of the insurance policy as a fraud upon the creditors of Alexander McLean. By the decree of the court below the deed was set aside as fraudulent, and the transfer of the insurance policy was sustained as valid. Complainants .alone appeal.
Said McLean, at the time of his death, was indebted to complainants upon two promissory notes, — one for $4,000, dated April 13, 1887; the other for $4,700, dated April 22, 1887, — executed by himself, and payable to the •order of one J. S. Dougall. No money consideration was paid for either the deed or the policy of insurance, except •one dollar, expressed in the assignment of the policy. 'The policy was issued in 1871, and by its terms was payable—
“To the said Alexander McLean, his executors, administrators, or assigns, in sixty days after due notice and satisfactory proof of death.”
The annual premium was $148.25, which he had regularly paid, less the dividends; the last payment having been made April 7, 1887. These premiums were usually paid upon receipts sent by the company- to the Lowell National Bank, which discounted the above notes, and afterwards transferred them to the complainants. Upon the consent of the executors the insurance company paid the amount of the policy to the defendants Jane and Jennie McLean. Complainants’ claims were allowed against the estate in the amount of $9,255.05. Complainants made a written request to the executrix and •executor-to contest these transfers, and tendered a proper indemnity bond. They refused to institute such proceedings, and thereupon complainants commenced this suit. At the time these transfers were made, Alexander McLean was in failing health, and insolvent, and his estate is also insolvent;
In the absence of a valuable consideration aside from love and affection, it is conceded that the transfer of this insurance policy is void as to creditors, unless it is ^protected by How. Stat. § 4238, which reads as follows:
“It shall be lawful for any husband to insure his life for the benefit of his wife, and for any father to insure his life for the benefit of his children, or of any one or more of them; and in case that any money shall become payable under the insurance the same shall be payable to the person or persons for whose benefit the insurance was procured, his, her, or their representatives or assigns, for his, her, or their own use and benefit, free from all claims of the representatives of such husband or father, or of any of his creditors.”
It is manifest from the testimony of Jennie and Leander McLean that these transfers were not thought or spoken of until their father had executed these notes, which, according to their testimony, he did in order to save his. worthless and criminal son-in-law, Dougall, from State prison. Jennie testified that the matter was earnestly discussed by the family; that they looked upon these debts as fraudulent, and they thought something could be done to help them. The obvious intent of the transfers was to avoid the payment of these notes, which constituted the great bulk of his indebtedness, and save-the property for his wife and daughter. It needs no argument to show that transfers of property under such circumstances are, as to creditors, fraudulent in law and void.
This policy was property, a chose in action, and up to the time of its assignment it was the property of Alexander McLean just as certainly and effectually as a promissory note payable 10 years from date, or upon the happening of a certain event, was his property. Creditors had a right to rely upon that as one of his assets. For 16 years he had done nothing to indicate that this policy was for the sole benefit of his wife and daughter, any more than the accumulation of other property was for their benefit. The law of this State exempts certain property for the benefit of.the family. Beyond this, all of a man’s property, when he is living, and of his estate, when dead, belongs first to his creditors, and must be applied to the payment of his debts. It is the inflexible duty of the courts to see that his property is thus appropriated. The question involved is one purely of law, not ■of sentiment. Because .in the present case the application of the firmly established rule may result in taking from the heirs all the property of the estáte, not exempt by law, for the benefit of creditors, this affords no excuse for not applying the rule. In the next case, there may be poor creditors to suffer, and rich heirs attempting to retain the property. In either case the law is the same, and must be inflexibly applied. These remarks are prompted by the strong and able appeal in the brief of counsel for the defendants, on account of their pecuniary condition.
A life insurance policy being property, it follows' that its assignment must be governed by the same rule as that of other property. The assignment of a- policy is not within the statute. Alexander McLean did not insure his life for the sole benefit of his wife and daughter. He insured it for the benefit of his estate, in which his creditors were to be interested. The argument is not sound that, because he could insure his life under this statute for the benefit of his wife and daughter, therefore he can assign a policy which was not taken out for their sole benefit, and thus place it beyond the reach of creditors. The distinction between the two is obvious. He might have transferred this, like any other property, to his wife or children without consideration, when solvent; but when, being insolvent, he transferred it without a valuable consideration, it was subject to the payment of his debts, and the assignment was void.
If the defendants are correct in their contention, a. holder of an endowment policy for §50,000 might, a few days before it becomes due, assign it to his wife or children, to the exclusion of his creditors. Such a transfer cannot, in my judgment,' be sustained upon either legal or equitable principles. The law recognizes no distinction in the transfer of a debtor’s property. Whatever is his, subject to his control, is his property for all intents and purposes; and, ’in the absence of statutory provision, all transfers made by him must be governed by the same-rule.
It is of no consequence that Alexander McLean might, at any time during his life have surrendered this policy, for its cash value or otherwise, or that he might have converted any of his property into cash, and taken out insurance directly for the benefit of his wife and daughter. The statute gave him that right. But this question must be determined by what he did do, not by what he might have done.
The defendants introduced evidence tending to show that the notes held by complainants were given by Alexander McLean in renewal of other notes, to which Dougall, his son-in-law, had signed McLean’s name without authority. Considerable testimony upon this point was introduced upon both sides. It is unnecessary to-determine the question, as it is entirely immaterial to the issue. The notes were allowed as valid claims against the estate, and defendants do not claim to here contest their validity; but they claim from this testimony that complainants did not take these notes in reliance upon this policy as an asset of Mr. McLean. It is wholly immaterial whether or not they knew of this policy at that time. The sole question here is whether the transfer of this property was void as to creditors. This question cannot be affected by the fact that at the time the debts were incurred the creditors did not know that the debtor owned the specific property assigned.
The original answer was based upon the sole defense that the assignment was covered by the statute. After the testimony was closed, the court permitted an amendment, to the effect that, as to the defendant Jennie McLean, the assignment was for a valuable consideration. This consideration was based upon services which she had rendered as a member of the family. She lived' there without any contract for hire, and with no other relation than that of father and daughter, and a member of the family. She testifies that her father promised to do something for her, and in his will made a liberal provision for her. She had no valid contract which she could enforce either against him or his estate, nor is there any evidence to show that he assigned this policy for any such consideration.
The decree of the court below must be reversed, and decree entered here for the complainants, with the costs, of both courts.
The other Justices concurred. | [
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Morse, J.
This is a suit in assumpsit upon the commou counts to recover the sum of $1,245.55, with interest from December 12, 1'888. The plaintiffs’ claim is that this sum is the balance due them upon materials furnished and used in the building of a house owned by defendant. The house was built for defendant by two carpenters, Kujjperness and Johnson. The defendant claims that these carpenters contracted to build his house and furnish the materials at the stated sum of $3,400, and they are the persons liable to plaintiffs for the materials furnished.
It does not appear that defendant ever made any contract with plaintiffs for any part of these materials. The full bill of plaintiffs was $1,845.55, upon which Kupperness and Johnson paid $600. The materials were ordered of plaintiffs by Kupperness and ‘ Johnson. Plaintiffs charged them on their books to the account of “H. M. Zekind House. Kupperness-Johnson,” — supposing they would have a lien upon the house under the lien law, since declared unconstitutional by this Court. The claim of the plaintiffs to recover from defendant seems to be based wholly upon conversations with the defendant after part of the materials had been furnished. Mr. Collins, one of the plaintiffs, testifies that just before October, 1888, after most of the materials had been furnished, Mr. Zekind came down and asked him if plaintiffs would wait upon him for their bill until January 1, 1889. Collins replied that they would. The bill was due December 12, 1888. Collins saw Zekind again a day or two after January 17, on which day plaintiffs had rendered him a bill of the goods furnished. Zekind came to the office of plaintiffs, and asked if they would take a mortgage on the house of Kupperness or Johnson for the amount of the bill, and Collins told him he would not. He then asked if they would take such mortgage provided he got it discounted. Collins replied that they would. Zekind said nothing leading them to believe that he in any way denied his liability for the bill. In March, Zekind told them that he meant to repudiate the bill, and they brought suit. Plaintiffs testified that they granted the credit on the strength of the lien law. They do not claim that Zekind, in so many words, promised to pay them for these materials, but impliedly did so by asking them to wait upon him until about the 1st of January.
Mr. Zekind denies that he ever promised to pay them for the materials. He says that, when he called upon them about October 1, he asked them “how the boys were paying up,” and they showed by the books that $600 had been paid, and there was a balance unpaid of about $350. He then asked them if they could not wait upon Kupperness and Johnson until January 1, because it was going to press him some to pay Kupperness and Johnson, and plaintiffs said they would wait with pleasure. Kupperness testified that about this time he asked defendant for some money; and, the balance due being more than Zekind expected, Zekind said he would go down and see plaintiffs and get them to wait on him. Zekind says that he told Kupperness that he would get them to wait upon Kupperness and Johnson.
A large portion of the' record is devoted to testimony, received under objection, relating to the cost of the house as built, the plan of the same, amount of extra work done, etc., which was entirely immaterial to the issue. Such testimony would have been relevant in a suit between Ku]3perness and Johnson and Zekind, perhaps, upon their contract to build the house, but it had no place in this case. It is evident from all the testimony that Kupperness and Johnson contracted to build the house and furnish all the materials, and it makes no difference whether they agreed to do this for $3,400, or, as they claim, Mr. Zekind told them to go ahead and build the house, and he would do what was right. In either case there is not a scintilla of evidence tending to show that it was intended that he should purchase any of the materials, or that he made them his agents for such purpose. While he may be liable to them for the whole cost of the building, he could not be made liable to others for their purchases. The court was therefore-radically wrong in admitting the testimony as to the cost of the house, etc., referred to above, and in submitting to the jury the proposition that, if they found Kupperness and Johnson to be the agents of the defendant in purchasing these materials of plaintiffs, the defendant should be held liable for this balance. The debt, in the first place, to plaintiffs, was undeniably, from this record, the debt of Kupperness and Johnson.
Nor do we think that defendant, by asking plaintiffs to wait upon him until January 1, 1889, could be made liable for this debt of another. Plaintiffs do not even claim that he ever expressly promised, even orally, to pay this balance, but, by requesting them to wait upon him until January 1, he impliedly promised to pay them. A large portion of this balance was furnished after he asked them to wait upon him, and there is nothing tending to show that either plaintiffs or defendant had such portion in mind when this request was made. I can find nothing in this implied promise to take it out of the statute of frauds. The cases cited by plaintiffs’ counsel, to wit: Heyn v. O’Hagen, 60 Mich. 150; Loranger v. Foley, 79 Id. 244; Hagadorn v. Lumber Co., 81 Id. 56,—do not apply. There was no agency here to ratify, as in the first case above cited; nor was the debt originally the debt of the defendant, as in the other cases. Defendant asked the plaintiffs, according to their theory, to wait upon him until January 1, in October, for the payment of lumber, etc., ordered by and furnished to Kupperness and Johnson, and charged to “II. M. Zekind House. Kupperness-Johnson” upon their books. ' They had never given any credit to him, but relied upon payment Ijy Kupperness and Johnson and a supposed lien upon the house. Before this request they had never thought of looking to defendant for payment, but relied principally upon the lien law of 1887, which has since been declared to be no law. Spry Limber Co. v. Trust Co., 77 Mich. 199.
The question of an estoppel is raised against the defendant, but we find nothing in the record to justify it. The plaintiffs do not show that they released Kupperness and Johnson from their liability, or lost any right against them on account of the conversation with defendant. They claim they did not proceed against the house, under the lien law, however, becau'se of such alleged implied promise on his part to pay them. When they talked with defendant it is not .shown that they had taken any steps under any lien law, or that defendant ever had any reason to believe that they intended . to do so. Indeed, the record and the argument of plaintiffs’ counsel give the inference that proceedings under the lien law were not taken because it was supposed they had no lien that they could enforce, under the decision of this Court in the Spry case. But,, even .if, as one of the plaintiffs testifies, they did not proceed under the lien law against the building' because of the supposed promise of the defendant to pay them, the talk of defendant with them, upon which_they ground such promise, was not sufficient in law so that they could rely upon it and build an estoppel. We do not think that the law -uf estoppel can be invoked, in such a case as this, to, in effect, take this promise (if there was any promise) to pay another's debt out of the statute of frauds. The-circuit judge should have directed a verdict for the defendant at the close of the plaintiffs' testimony, as requested by the defendant's counsel.
The judgment will be reversed, with costs of both courts, and a new trial granted.
The other Justices concurred. | [
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] |
Champlin, 0.- J.
This was an action of replevin commenced in justice’s court to try the title of the plaintiff to a span of horses.
The defendant justified his right to possession under a, certain chattel mortgage executed by Alfred Davidson and his wife, the plaintiff, • to the Groton Bridge & Manufacturing Company, dated August 20, 1888, to secure the payment of $170, November 1, 1888, with interest. The-plaintiff was not named in the body of the instrument as-a party thereto, but signed her name to it under the name of her husband. She claimed and gave testimony which tended to prove that the horses were her separate-property, and that her signature -to the mortgage was-obtained through fraudulent misrepresentations made to her to induce her to sign the instrument. The so-called note, which the mortgage was giren to secure, was in the words and figures following:
“$170.00. Chesaning, Mich., Aug. 17, 1888.
“ On or before the. eirst day of November, 1888, ave, of Saginaav county, State of Michigan, promise to pay to the order of the Groton Bridge and Manufacturing Company one hundred and seventy dollars at the -Steavart Bank, Oavosso, for value received, with interest at seven per cent, to maturity, and seven per cent, per annum on principal and interest from maturity until paid.
“The express conditions of the transfer of the possession of the engine, separator, belt, and tank, for which this note is given, are such that the title, OAvnership, or right of property does not pass from the said Groton Bridge and Manufacturing Company until this note, with interest, is paid in full. The said Groton Bridge and Manufacturing Company have full power to declare this note due, and take possession of said property, at any time they “may deem this note insecure, even before the maturity of the same, and sell the said property at public or private sale, and apply the proceeds toAvards the payment of this note; and, should this note be collected by suit, the maker and indorser agree to pay all reasonable costs of collection, including plaintiff’s attorney’s fees.
[Signed] “A. Davidson.”
(The written portions are printed in small capitals.)
The court, in instructing the jury, said:
“I doubt very much whether any Avoman would, or-ought to, secure on her separate'property a debt where a. contract Avas made such as appears in this no.te, between the vendor and the vendee; for it is virtually leaving theAvhole matter in the hands of the vendor, — title, right to-declare the debt due, sale of the property at public or private sale, and in fact it is a provision, that is very stringent indeed, so much so that I am surprised that-any sane man would ever sign such a note. I therefore-conclude that the failure to represent to her the clause in this note, and the representation to her of this mortgage, Avhich Avouid indicate that the -note Avas simply an ordinary note, due in November, 1888, in the nature of the misrepresentation, and the failure to represent to her facts that ought to have been represented, I conclude- that they amounted to a fraud upon her, and that she cannot' be held as estopped in this case.”
The testimony was not without conflict as to what representations were made, nor of the failure to represent to the plaintiff facts which ought to have been- represented, and the court erred in taking the question of fraud from the jury, and deciding that the plaintiff had been defrauded himself. For this error the judgment must be reversed. The costs of this Court will abide the event of the new trial.
The record has been printed solid, and in such small type as to make it exceedingly difficult to read the record. Under such circumstances, the prevailing party will not be allowed costs.
The other Justices concurred. | [
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Per Curiam.
Plaintiff The Detroit News, Inc., filed this action pursuant to the Michigan Freedom of Information Act (foia), MCL 15.231 et seq.; MSA 4.1801(1) et seq. At issue was whether closed sessions of the Detroit City Council held on January 29, and February 3, 1988, were held in violation of the Open Meetings Act (oma), MCL 15.261 et seq.; MSA 4.1800(11) et seq., and, if so, whether the minutes of those meetings should be released to the public. The trial court concluded that the meetings were held in violation of the oma and that the minutes should be disclosed under the foia. We affirm.
The underlying facts involve defendant’s acquisition of property for the Chrysler Jefferson/Connor Project. A consent final judgment detailing defendant’s acquisition of fifteen acres of land with equipment and inventory for approximately $42 million was entered on January 12, 1988. The consent judgment was approved by Emmett Mo-ten, head of the city’s Department of Community and Economic Development, by Donald Pallen, Corporation Counsel for the city, by an assistant corporation counsel and by a special assistant corporation counsel. The city council, by means of a December 10, 1986, resolution, expressly authorized Mr. Moten to enter into an agreement for use and possession of the subject property and to execute that agreement and any ancillary documents on behalf of the city.
On January 28, 1988, the members of the Detroit City Council unanimously passed a resolution to close their January 29, 1988, session for the ostensible purpose of discussing settlement strategy in connection with pending litigation relative to the Chrysler Jefferson/Connor Project. Through a second resolution, the meeting was continued to February 3, 1988.
Plaintiff filed a freedom of information request for a copy of the minutes of the two closed sessions of the city council. Plaintiffs request was denied by the city and plaintiff filed the complaint in this case alleging a violation of the foia.
Plaintiff subsequently amended its complaint to add a count alleging violation of the Open Meetings Act. Plaintiff sought a preliminary injunction to enjoin defendant from violating the oma, a declaratory judgment that the closed meetings of January 29, and February 3, 1988, violated the oma, and sought to have the city produce a sealed copy of the minutes for in camera review.
Defendant filed a motion for summary disposition, arguing a lack of jurisdiction in the trial court to review the matter and claiming that plaintiff had failed to state a claim upon which relief could be granted and that there was no genuine issue of material fact. The trial court denied defendant’s motion in a comprehensive written opinion. The trial court examined the consent final judgment and the minutes of the closed meetings and concluded that litigation was not pending at the time the closed sessions were held. The trial court determined that the closed city council meetings violated the oma and that the minutes of those meetings were public records subject to disclosure under the foia. The trial court also enjoined further closed sessions to discuss the Chrysler Jefferson/Connor Project.
On appeal, defendant contends that the city’s motion for summary disposition should have been granted because plaintiffs amended complaint did not state a cause of action and because the trial court lacked jurisdiction to invalidate the closed meetings. Defendant argues that plaintiff made no showing of irreparable injury because of the closed meetings and presented no evidence that any violation of the oma occurred.
We note initially that there is no merit to defendant’s claim that plaintiff failed to meet its burden of proof in this matter. Once a request has been made under the foia and denied by defendant, the burden falls upon defendant to show a viable defense. Pennington v Washtenaw Co Sheriff, 125 Mich App 556, 564-565; 336 NW2d 828 (1983). Exemptions are affirmative defenses to requests for documents. An affirmative defense cannot succeed unless the matters upon which it rests are proved. The burden of producing evidence and establishing these facts rests upon the defendant. Booth Newspapers, Inc v Regents of the University of Michigan, 93 Mich App 100, 108-109; 286 NW2d 55 (1979). Because the defendant controls the material requested, it is difficult for the plaintiff in a foia case to confidently assert circumstances and facts in its favor. Accordingly, the burdens of pleading and proof are allocated to rectify this disadvantage. Id.
We also reject defendant’s claim that the preliminary injunction in this case was improper. The oma allows an individual to commence a civil action for injunctive relief to either compel compliance with the oma or enjoin further noncompliance with the act. MCL 15.271; MSA 4.1800(21). Because the purpose of the act is to promote openness in government, it is given a broad interpretation. Wexford Co Prosecutor v Pranger, 83 Mich App 197, 204; 268 NW2d 344 (1978). As defendant argues, injunctive relief involves an extraordinary remedy which is available only when justice requires, when there is not an adequate remedy at law and when there exists a real and imminent danger of irreparable injury. Wexford Co Prosecutor, supra at 205. However, much like an action under the foia, an oma action challenging a closed-door session places the plaintiff at a distinct disadvantage in garnering factual support for its claim. With only the defendant aware of what actually occurred at a meeting, the burden of establishing that a meeting is exempt from the oma should fall upon the party claiming exemption. We believe it is implicit in the purpose of "sunshine laws” such as the oma that there is real and imminent danger of irreparable injury when, governmental bodies act in secret.
The trial court also acted properly in conducting an in camera review of the minutes. As is often the case in foia matters, the affidavits filed by defendants were wholly conclusory and lacking in factual allegations of what actually occurred at the closed meetings. See Evening News Ass’n v City of Troy, 417 Mich 481, 515-516; 339 NW2d 421 (1983), reh den 418 Mich 1202 (1984); Booth Newspapers, 93 Mich App 111-112. In such cases the favored remedy is in camera review. Evening News, supra at 516.
Defendant also argues that the trial court should not have reviewed the minutes because it lacked jurisdiction to invalidate the city council’s decision to close the meetings. The statutory limitations period in MCL 15.270(3); MSA 4.1800(20X3) does not apply in this case since plaintiff did not seek to invalidate the actions of the city council. There is no limitations period under MCL 15.271; MSA 4.1800(21), the section under which plaintiff sought injunctive relief.
Next, defendant argues that the minutes are exempt from disclosure because the city council closed its meetings to discuss pending litigation with its attorneys. MCL 15.268; MSA 4.1800(18) provides that a public body may meet in closed session "only for the following purposes”:
(e) To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.
(h) To consider material exempt from discussion or disclosure by state or federal statute.
A strict construction must be given to closed-door exceptions in order to limit the situations in which meetings are not opened to the public. Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459, 467; 425 NW2d 695 (1988).
Defendant argues that entry of the consent final judgment did not end the ligation in the Chrysler Jefferson/Connor matter. Defendant contends that the city council had not authorized the consent judgment as required by the city charter and that they had the option to move to set aside or appeal the judgment. This argument is rather disingenuous in light of the December 10, 1986, city council resolution authorizing Mr. Moten to enter into and execute this agreement. Moreover, as the trial court indicated in its well-reasoned written opinion:
[A] review of the consent judgment indicates that the litigation was over. The consent judgment sets forth a comprehensive agreement between the parties. It also requires additional action to be taken by both sides in that lawsuit. Among other things, it provides a mechanism for payment of funds not disputed and for the escrow of funds which may be disputed at a later date. The trial court retained jurisdiction to enforce the provisions of the judgment. However, nothing presented by the City indicates that there were any existing disputes that required returning to the Court to litigate. Further, the Minutes do not indicate that the possible future disputes were the focus of the discussion held in closed session. To the contrary, it is rather clear that the concerns center around the financial obligations required under the consent judgment and how best to meet them as well as the circumstances leading up to and surrounding entry of the consent judgment.
The fact that disputes may arise in the future does not reduce the finality of the consent judgment in terms of ending the litigation. As disputes arose and became the subject of litigation, it may have been appropriate to discuss the trial or settlement strategy of those issues.
Our review of the consent final judgment and the minutes in this case convinces us that the trial court was correct. We believe that MCL 15.268(e); MSA 4.1800(18)(e), strictly construed, only exempts from open meetings discussions of those matters in which a judgment has not yet been reached or in which a settlement agreement has not been accepted. The additional proceedings provided for in the consent final judgment here concerned execution of the judgment rather than any pending issues of liability. Nor does the city council’s concern over financial obligations and the circumstances leading up to entry of the final consent judgment qualify as pending litigation under the statute. Accordingly, we conclude that the trial court correctly ruled that the January 29, and February 3, 1988, meetings were held in violation of the oma and that the minutes of those meetings were public records subject to disclosure.
Finally, we reject defendant’s suggestion that oral opinions of an attorney are "public records” under the foia and, as such, could be used to authorize holding a closed session under the oma. We are persuaded by this Court’s analysis of this issue in Booth Newspapers, 168 Mich App 466-470, and decline to hold otherwise.
Affirmed. Remanded for proceedings consistent with this opinion. | [
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Per Curiam:.
Plaintiff appeals as of right from an order granting summary disposition in favor of defendants. MCR 2.116(C)(7), (8) and (10). We affirm.
On May 19, 1987, the Local Development Financing Authority of Auburn Hills approved a development plan and tax increment financing plan for the proposed Chrysler Technology Center and Supplier Park (Center). The city council approved the plan, determining that it constituted a public purpose. Under the plan, the Center is to receive tax increment financing to offset various construction costs.
On August 10, 1987, plaintiff brought suit challenging the public funding of the Center. Following discovery, plaintiff dropped all claims except its challenge to funding for construction of barrier-free access. On July 25, 1988, following cross-motions for summary disposition, the judge upheld public funding of the barrier-free design requirements. He granted summary disposition to defendants, ruling the requirements were improvements specifically permitted by statute and served a public purpose.
On appeal, plaintiff first argues that the use of public tax revenues to fund the construction of barrier-free design requirements for a private entity does not serve a valid public purpose. Therefore, plaintiff urges, it is unconstitutional.
The Supreme Court has conducted a limited analysis of the constitutionality of the Local Development Financing Act (ldfa). MCL 125.2151 et seq.; MSA 3.540(351) et seq. Advisory Opinion on Constitutionality of 1986 PA 281, 430 Mich 93; 422 NW2d 186 (1988). The Court concluded that the use of tax revenues as a pledge of tax increment bonds constitutes a loan of municipal credit under article 9, § 18 of the Michigan Constitution. However, it is permissible if the use of the funds satisfies the requirements of Const 1963, art 7, § 26. Advisory Opinion, 129. Under § 26, defendants’ loan of credit, in the form of tax increment financing, must be provided for by law and must be intended for a public purpose. Section 14 of the ldfa satisfies the first part of the test. It authorizes municipalities to pledge their credit, in the form of anticipated tax revenues, in support of tax increment bonds. MCL 125.2164; MSA 3.540(364). Advisory Opinion, supra.
In order to satisfy the second constitutional prong, defendants’ use of the financing must be for a valid public purpose. The Michigan Supreme Court has sanctioned a liberal interpretation of the public purpose doctrine. Id.; Gaylord v Gaylord City Clerk, 378 Mich 273, 298-300; 144 NW2d 460 (1966). In accordance with this interpretation, the Court found that the ldfa clears the second constitutional hurdle. This is so even though the act indirectly benefits private interests and may go beyond the limited public purpose recognized in other cases. Advisory Opinion, 130. The object of the ldfa, to contribute to economic growth by eliminating unemployment and underemployment, is in accordance with the general definition of public purpose. MCL 125.2151; MSA 3.540(351); Gaylord, 300.
Plaintiff argues that the construction costs in question would be incurred by the Center even absent public financing. It urges that this expenditure cannot be justified solely because it is part of an incentive package to promote economic growth.
Plaintiff has failed to demonstrate that defendants’ determination of a valid public purpose was manifestly arbitrary. Gregory Marina, Inc v Detroit, 378 Mich 364, 396; 144 NW2d 503 (1966). The court did not err in dismissing the constitutional claims.
Next, plaintiff contends that the statute does not allow tax increment financing for a facility not yet in existence.
A tax increment financing plan may use public monies only for eligible property in public facili ties. MCL 125.2162; MSA 3.540(362). Eligible property is defined by the act as follows:
(h) "Eligible property” means land improvements, buildings, structures, and other real property, and machinery, equipment, furniture, and fixtures, or any part or accessory thereof whether completed or in the process of construction comprising an integrated whole, located within an authority district, of which the primary purpose and use is 1 of the following:
(iii) A high technology activity that has as its primary purpose research, product development, engineering, laboratory testing, or development of industrial technology. This subparagraph shall not apply after December 31, 1991. [MCL 125.2152(h); MSA 3.540(352)(h).]
Public facility includes
an improvement to a facility used by the public or a public facility as those terms are defined in section 1 of Act No. 1 of the Public Acts of 1966, being section 125.1351 of the Michigan Compiled Laws, which improvement is made to comply with the barrier free design requirements of the state construction code promulgated under the state construction code act of 1972, Act No. 230 of the Public Acts of 1972, being sections 125.1501 to 125.1531 of the Michigan Compiled Laws. [MCL 125.2152(k)(iii); MSA 3.540(352)(k)(iii).]
Plaintiff claims the Legislature coined "facility used by the public” to demonstrate its intent to allow public revenues for private entities only when they fund improvements to existing facilities.
Where a statutory provision is sufficiently ambiguous to necessitate interpretation, the primary duty of the court is to ascertain the intention of the Legislature. We examine the statutory language, the subject matter under consideration, its scope and purpose, other relevant statutes and legislative history. Kerby v Judges’ Retirement Bd of Michigan, 166 Mich App 302, 309; 420 NW2d 195 (1988), lv den 431 Mich 863 (1988). In such situations, all other rules of statutory construction are ancillary to this primary duty, serving only as guides to assist in the determination of legislative intent. Kerby, supra. Statutory provisions should be read in their entirety and in connection with the statute as a whole; provisions should not be construed so as to render another part nugatory. Danto v Michigan Bd of Medicine, 168 Mich App 438, 442; 425 NW2d 171 (1988); Manistee v Employment Relations Comm, 168 Mich App 422, 426-427; 425 NW2d 168 (1988), lv den 431 Mich 884 (1988).
The statute under interpretation refers to the act governing barrier-free design of public facilities and facilities used by the public. MCL 125.1351 et seq.; MSA 3.447(121) et seq. A facility used by the public is defined as a building, structure or improved area utilized for purposes of education, employment, or housing. MCL 125.1351(d); MSA 3.447(121)(d). It is to be used, among others, for employment or education.
Section 2 provides insight into the question whether the phrase applies only to existing facilities. It provides in part:
(1) A public facility or facility used by the public the contract for construction of which or the first contract for construction of a portion of which is made after July 2, 1974, shall meet the barrier free design requirements contained in the state construction code.
(2) An existing public facility or facility used by the public undergoing a change in use group or occupancy load, or an alteration other than ordinary maintenance, after July 20, 1975, shall meet the barrier free design requirements contained in the state construction code according to the following .... [MCL 125.1352; MSA 3.447(122).]
The use of the phrase in this manner contemplates its application to both existing facilities (subsection 2) and facilities not yet built (subsection 1). Moreover, we fail to see how limitation of the financing to only existing facilities would further the purpose of the legislation. It is in keeping with the purpose of the ldfa, encouraging local development and economic growth, to apply this phrase to both existing and new facilities. Thus, the statute provides for tax increment financing for construction of barrier-free improvements in the Chrysler Center.
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Per Curiam.
Defendant Department of Licensing and Regulation, administrator of the Homeowner Construction Lien Recovery Fund, appeals as of right an order of the Kalamazoo Circuit Court granting summary disposition to defendant Wickes Companies, Inc., and ordering the fund to pay Wickes $5,285.23, plus interest and costs. We affirm.
In 1976, Wickes furnished materials to Gary Webster, doing business as G & G Webster Custom Builders, for the construction of a residential home on property owned by J. C. Wedel. When Wickes did not receive payment for the materials, Wickes filed suit in district court and received a default judgment against Webster in the amount of $5,285.23.
At approximately the same time, Abode Building Materials, Inc., instituted the present cause of action for foreclosure of its construction lien on Wedel’s property due to Webster’s nonpayment for materials supplied by Abode. Abode named the department as a defendant, seeking to recover payment of the construction lien from the fund. Abode’s complaint also named Wickes as a defendant.
Wickes filed a counterclaim against Abode and a cross-claim against J. C. Wedel, his wife, the department, and one other supplier who had furnished materials for the construction of Wedel’s home. On October 1, 1987, Wedel filed an affidavit preventing the attachment of construction liens to his property, pursuant to MCL 570.1203; MSA 26.316(203).
During the foreclosure proceedings, Gary Webster filed for bankruptcy and Wickes subsequently filed a claim in the bankruptcy proceedings upon its default judgment against Webster.
On May 31, 1988, Wickes moved for summary disposition in the instant action pursuant to MCR 2.116(0(10) claiming that, as a matter of law under § 203 of the Construction Lien Act, it was entitled to recover payment from the fund. The fund, in defending against Wickes’ motion, argued that Wickes had failed to make a reasonable effort to obtain payment from Webster, as required by § 203 of the act, since it did not pursue adversary proceedings in the bankruptcy court to have the default judgment declared nondischargeable.
The trial court found that Wickes had made a reasonable effort to obtain payment from Webster and granted summary disposition. On appeal, the sole issue raised by the department is whether § 203(3)(g) of the Construction Lien Act requires a creditor of a bankrupt residential builder to have the builder’s debt declared nondischargeable in bankruptcy before the creditor is eligible to collect on the construction lien from the Homeowner Construction Lien Recovery Fund.
A motion for summary disposition under MCR 2.116(0(10) tests the factual support for the party’s claim. Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 741; 440 NW2d 101 (1989), lv den 433 Mich 873 (1989). The trial court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Dumas v Auto Club Ins Ass’n, 168 Mich App 619, 626; 425 NW2d 480 (1988). When the trial court is satisfied that it is impossible for the claim asserted to be supported at trial, the motion should be granted. Peterfísh v Frantz, 168 Mich App 43, 48-49; 424 NW2d 25 (1988).
Section 203(3) of the Construction Lien Act sets forth the requirements which must be fulfilled before recovery from the fund may be sought. It provides in pertinent part:
A person who seeks recovery from the fund shall establish all of the following:
(a) That he or she would be entitled to a construction lien on a residential structure except for the defense provided in subsection (1).
(b) That payment was made by the owner or lessee to the contractor or subcontractor.
(c) That the contractor or subcontractor has retained or used the proceeds or any part of the proceeds paid to the contractor or subcontractor without having paid the person claiming the construction lien.
(d) That he or she has complied with section 201.
(e) That he or she has not colluded with another person to obtain a payment from the fund.
(f) That he or she has complied with any applicable licensing acts.
(g) That he or she has made a reasonable effort to obtain payment from the contractor or subcontractor.
(h) That the contractor or the subcontractor, with whom the person claiming the construction lien contracted with, is licensed if required by law to be licensed. [MCL 570.1203(3); MSA 26.316(203) (3).]
In maintaining that the trial court erred in its finding that Wickes made a reasonable effort to obtain payment from Webster, the department posits three arguments.
First, the department argues that the Construction Lien Act was intended to protect homeowners from having to pay twice for improvements to their property. We agree. See MCL 570.1203(1) and (2); MSA 26.316(203X1) and (2). However, MCL 570.1203(3); MSA 26.316(203X3) also sets forth a legislative intent in establishing the fund so as to insure that vendors and suppliers do not bear the burden when a contractor, who has retained the homeowner’s proceeds, fails to pay for the materials supplied or improvements made in the construction of a residential structure.
Second, the department argues that, had Wickes sought to have the debt declared nondischargeable in bankruptcy, the department could have refused to renew or reissue a contractor’s license to Webster pursuant to MCL 339.2411(3); MSA 18.425(2411)(3). This section of the Occupational Code states in pertinent part:
The department shall suspend or revoke the license of a person licensed under this article whose failure to pay a lien claimant results in a payment being made from the homeowner construction lien recovery fund pursuant to the construction lien act .... The license shall not be renewed nor shall a new license be issued until the licensee has repaid in full . . . the amount paid out plus the costs of litigation and interest....
While the department’s efforts to keep insolvent and incompetent contractors out of the construction industry are laudable, we fail to see this goal as being one intended by the Legislature in adopting the requirements of § 203 for recovery from the fund. Had the Legislature intended that claimants, at their own expense, assist the department in the disciplinary process, it would have explicitly stated that intent in the Construction Lien Act. It did not, and we note that the department fails to cite any authority in its novel interpretation of the statutory provisions.
Lastly, the department argues that Wickes should be required to obtain the exemption order in bankruptcy court to maintain the financial integrity of the fund. The Legislature expressly set forth the funding procedures by which the fund’s financial integrity was to be maintained. See MCL 570.1201; MSA 26.316(201). In light of these provisions, permitting Wickes to recover from the fund is highly unlikely to have an adverse affect upon the financial integrity of the fund.
A lien claimant may sue in contract or may seek a foreclosure of its construction lien. MCL 570.1302(2); MSA 26.316(302X2). Wickes pursued its contractual claim against Webster and per fected a default judgment. When Webster filed bankruptcy, Wickes filed its claim of default judgment in the bankruptcy proceedings. Since the record indicated Webster had insufficient assets to satisfy the claim, Wickes chose not to seek an exemption order in the bankruptcy proceedings but sought to foreclose its construction lien instead. We believe Wickes made a reasonable effort to obtain payment from Webster and, therefore, summary disposition was properly granted.
Affirmed. | [
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] |
Weaver, J.
John D. O’Hair, the prosecuting attorney for Wayne County, attempted to obtain records of assets seized under the drug forfeiture laws by the City of Detroit Police Department, as well as an accounting of how those funds were spent. Plaintiff filed an action under Michigan’s Freedom of Information Act to obtain these records. MCL 15.231 et seq.; MSA 4.1801(1) et seq. After a show cause hearing the circuit court granted plaintiff his requested relief, ordering defendant to produce the records at issue by March 23, 1990. That portion of the judgment was stayed by this Court when we granted defendant leave to appeal. We amend in part and affirm.
i
Defendant’s first assignment of error is that the court erred in ordering defendant to produce and deliver documents to the Wayne County Prosecutor’s Office, a public agency.
Defendant’s argument relies on its construction of the statute, MCL 15.233(1); MSA 4.1801(3X1), which provides:
(1) Upon an oral or written request which describes the public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of a public record of a public body, except as otherwise expressly provided by section 13. A person has a right to subscribe to future issuances of public records which are created, issued, or disseminated on a regular basis. A subscription shall be valid for up to 6 months, at the request of the subscriber, and shall be renewable. [Emphasis added.]
MCL 15.232; MSA 4.1801(2) defines a person as "an individual, corporation, partnership, firm, organization, or association.” Defendant contends that under this definition, plaintiff cannot request documents under the foia because plaintiff is a governmental agency.
Defendant’s argument rests on the assumption that John O’Hair, when acting as county prosecutor, is transformed into a governmental agency, and is no longer an individual, a person. We reject this premise.
The statute does not specify that the requester must be a private person as opposed to a public person. It simply states "a person.” The county prosecutor is a public official, but remains an individual, a public person, distinct from the agency as a whole. As such he is a person under the foia.
Once defendant’s premise is rejected, its whole argument falls. Accordingly, we find that the circuit court correctly ordered defendant to produce the requested documents in the March 15, 1990, order.
ii
Defendant next contends that plaintiff did not have standing to bring the suit, because he did not first make a formal request for these documents. Only after a formal request for documents and a denial by a public body may a suit to compel disclosure be brought. MCL 15.235; MSA 4.1801(5) and MCL 15.240; MSA 4.1801(10).
Defendant’s position is that John O’Hair, as a private citizen, could not bring suit to compel disclosure of documents under the foia because the only letter requesting the documents was written on the county prosecutor’s stationery and signed by John O’Hair in his capacity as prosecuting attorney. Defendant contends that this has the effect of one person making the request and another attempting to enforce it.
Our disposition of the first assignment of error renders this complaint irrelevant, since we have held that John O’Hair, when acting in his capacity as prosecutor, is still an individual, a person under the foia.
hi
Defendant’s final argument on appeal is that ordering defendant to produce the requested documents was contrary to the Uniform Budgeting and Accounting Act (ubaa), MCL 141.421 et seq.; MSA 5.3228(21) et seq.
A public body may exempt from disclosure under the foia any records or information specifically described and exempted from disclosure by statute. MCL 15.243; MSA 4.1801(13). Defendant claims such an exemption is set forth by the ubaa. After review of the statute, we are unable to find any tenable support for defendant’s argument. Further, the foia itself lists only twenty exemptions. MCL 15.243; MSA 4.1801(13). The ubaa does not appear in any of them.
Accordingly, we affirm the judgment of the circuit court. We amend that portion of the order previously stayed so that defendant must comply with the order within fourteen days from the date this opinion is issued.
We do not retain jurisdiction.
In forming its decision the trial court found plaintiff was proceeding in his capacity as a private citizen and noted that a governmental agency could not request records under the foia. We specifically do not reach the issue of whether one government agency can obtain records from another under Michigan’s Freedom of Information Act, which would be a question of first impression in this Court.
When filing suit plaintiff styled himself as county prosecutor and as a private citizen. As we have seen, defendant’s thesis was that only as a private citizen could plaintiff receive relief.
MCL 141.433, MSA 5.3228(33) reads:
(1) Notwithstanding the confidentiality provisions of any tax laws, any authorized employee of the state treasurer, certified public accountant or firm of certified public accountants conducting an audit under this act shall have access to and authority to examine all books, accounts, reports, vouchers, correspondence files and other records, bank accounts and moneys or other property of any local unit excepting any records which were obtained from the United States internal revenue service under the federal state cooperative exchange agreement.
(2) An officer of a local unit upon demand of persons authorized under this act, shall produce all books, accounts, reports, vouchers, correspondence files and other records, bank accounts and moneys or other property of the local unit under audit or investigation and shall truthfully answer all questions related thereto.
(3) The liabilities and penalties provided by all specific confidentiality statutes for divulging confidential information shall be applicable to all persons authorized to make an audit under this act. | [
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Shepherd, P.J.
Pursuant to a plea bargain agreement, defendant pled guilty to second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). He was sentenced to four to fifteen years imprisonment. Defendant appeals as of right, seeking resentencing before a different judge. We remand for resentencing.
Defendant concedes that the minimum sentence was within the guideline sentence range, but asserts that the reasons articulated by the trial court for the sentence show an abuse of discretion. Although the trial court did not refer to the guidelines at sentencing, the trial court completed a sentencing information report and articulated reasons for the sentence. While we are not persuaded that the sentence imposed was excessive, People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987), or that the trial court’s consideration of the dismissed charges was improper, People v Salgat, 173 Mich App 742, 746; 434 NW2d 229 (1988), we find merit in defendant’s claim that the trial court gave inappropriate consideration to his age at sentencing.
We find no support for the defendant’s claim that the record reflects bias on the part of the trial court. However, the record shows that the trial court considered the sixty-four-year-old defendant’s age in assessing the risk of recidivism in this case. The trial court believed that defendant’s age "argues strongly against any redirection of [defendant’s] unhealthy desires for children.”
A majority of our Supreme Court has stated:
We disagree with the dissent’s implication that age alone may be a proper reason for departure where defendant is in an age group with a high likelihood of recidivism. While age may be considered a mitigating or aggravating factor in terms of the individual defendant and the circumstances of the particular crime, its consideration should be limited. Any predictions of a defendant’s future behavior based on a status characteristic such as race, religion, gender, or age are suspect.
Neither the Michigan guidelines nor the proposed federal guidelines use age as a sentencing factor. A reasonable sentence may include a limited consideration of defendant’s áge in terms of other permissible and relevant individual factors such as the absence or presence of a prior record. [People v Fleming, 428 Mich 408, 423-424, n 17; 410 NW2d 266 (1987).]
On the basis of Fleming, we conclude that resentencing is justified. Although the sentence was within the guidelines and defendant’s age was clearly not the sole reason for the sentence, the trial court’s remarks indicate that it improperly used defendant’s age in assessing the risk of recidivism. Specifically, there was nothing in the presentence report or elsewhere in the record to justify the trial court’s conclusion that the age of this defendant points in the direction of a higher probability of recidivism. On the contrary the only scientific report in the file, a report from Dr. Gordon J. Blush of the Psychodiagnostic and Family Services Clinic, indicated that this particular defendant because of his specific background was an unlikely candidate for recidivism.
The trial judge’s conclusion seems to be based on his own unsubstantiated personal view of a highly complex aspect of human psychology. The trial judge has simply concluded that an older person is more likely to be a repeat offender than a younger person. Before a sentencing judge can make such a conclusion, some scientific or psychological justification should be made part of the record and the defendant must be afforded the opportunity to challenge the court’s belief at the sentencing hearing. See Davis, "There is a Book Out . . . An Analysis of Judicial Absorption of Legislative Facts, 100 Harv L R 1539 (1987).
The above article demonstrates the dangers of judicial adoption of complex or disputed theories in the social sciences without adequate evidence or analysis. We do not permit courts to accept theories or techniques employed in the physical sciences until they have been accepted by the scientific community. People v Young (After Remand), 425 Mich 470; 391 NW2d 270 (1986). The theory that the advanced age of a defendant increases the probability of recidivism and justifies a longer sentence than would be given to a younger person (even within the guidelines) is sufficiently complex and controversial to require scientific justification before it may be relied upon by a court. We do not wish to imply that at a defendant’s sentencing the court must conduct a full evidentiary hearing as would be required under Young, supra, where the issue is guilt or innocence at a trial. Nevertheless as a minimum we would require that the probation department or the professional psychologist engaged by the court offer an opinion to the court that the age of the defendant in question would make it more likely that he would commit a similar offense again.
The fact that this sentence of four to fifteen years was within the guidelines range of one to four years is of no consequence. Since the trial judge sentenced defendant to the maximum minimum allowed by the guidelines, the judge using proper criteria might sentence defendant to a lesser term within the guidelines.
Remanded for resentencing before the original trial judge. We do not retain jurisdiction. | [
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Champlin, C. J
This case originated in justice’s court. The action was commenced by a summons in assumpsit to recover back from the defendant money which, the plaintiff claims, he had overpaid ' to the defendant, on account of driving some logs.
The defendant is a corporation organized under the laws of the State of Michigan, and engaged in running and driving logs in Pere Marquette river. The plaintiff put certain logs in the river in the spring of 1889, which the defendant ran down the river, and delivered to the plaintiff, during the sawing season of that year. A portion of the logs in question were hemlock, and the balance of them were pine. In the spring of 1889, or in the month of January in that year, the defendant mailed to the plaintiff what is called the “rates and rules of service ” adopted by the defendant in reference to its running and delivering logs for the year 1889. These rates and rules for service specified the prices which it would charge for‘running logs from certain divisions upon the line of the river,’ and for assorting and delivering the same. The rules also provided, among other things, as follows:
“ 6. Payments to be made as fast as logs are ready for delivery, before delivery, or logs will be stored at owner’s expense. Sworn weekly statements of the amount of logs sawed of each and every mark shall be rendered by each mill-owner, from statement by sworn scaler, to the boom company, on the Monday succeeding; the final settlement to be made on the woods scale.”
Rule 7 of the company reads as follows:
“All parties employing the boom company to do their work shall, on the first day of April, and on the first day of each succeeding month, give a sworn statement of amount of logs put in by them at the different divisions on the Pere Marquette river and its branches, or charges will be computed from division thirteen for logs in south branch, and from division six in north branch. The company does not hold itself to running the logs absolutely, but only to reasonable diligence after taking possession of the drive. The log-owner receiving this is requested to accept by affixing signature, and returning the same to the boom company by return mail.
“Perk Marquette Boom Company.
“ Accepted........................._............
“...............................18-...”
It does not appear, in the case before us, that the plaintiff ever accepted the terms and conditions contained in these rules by signing the same, as requested, and returning them to the defendant; nor does it appear that he complied, in any respect, with rules 6 and 7, with reference to making sworn weekly statements of the amounts of logs sawed, etc., or of the amounts put in on the first day of April, and each succeeding month, on the Pere Marquette river. But it does appear that, some time in the latter part of May, the defendant forwarded to the plaintiff the blank form, to be filled out by him, and returned to defendant, substantially as follows:
“Ludington, May 37, 1889.
“ To the Pere Marquette Boom Company, Ludington, Mich.:
“The following statement shows the amount of logs and other floatables put into the Pere Marquette river and its branches by--, as stated.”
Then follows a blank for the date, the time from and to which the logs were put in, the name of the logger, the log-mark, the division, the number of logs, and the number of feet, to which is appended:
“I hereby certify that the above statement is correct to the best of my knowledge and belief.”
This blank was received by plaintiff, and filled in, showing that the total number of feet was 791,338, and the certificate was signed by him, and returned to the boom company.
During the season, the plaintiff made complaints to the defendant that it was not using due care in separating and delivering his logs to his mill, and the officers of the company promised to give the matter their attention, did so, and reported that the men in charge had been careless during most of the season. The plaintiff complained also that all of his logs had not been delivered to him;, that there was quite a shortage; that he was satisfied that there was a large shortage, and the officers of the company said that he should go on and saw up his logs, and ascertain how much he had, and they would try to do what was right and fair in the matter; but that, finally, they refused to deliver the balance of his logs, unless he-would pay the price which they charged according to the statement sent to them by him, and, in order to get his logs delivered, he was compelled to, and, indeed, they suggested that he should, pay the same under protest, which he did, and then they delivered the logs.
Plaintiff finished sawing, and testified himself, and introduced other evidence, to show that a correct scale of the sawing was kept in the mill, the number of feet of logs which were delivered to him by the defendant being-shown by that scale; that it amounted to 636,167 feet, being a shortage from that shown by the woods scale furnished to the defendant on the blank stated of over 155,000 feet; and this suit was brought to recover back what he had overpaid for the running and delivering of the logs.
Upon, the trial, the defendant contended that -these words: “The final settlement to be made on the woods scale,” — being the closing paragraph of the sixth rule, were binding upon plaintiff, and that it had the right to charge him for running the amount of logs shown by the woods scale. There are two reasons why this contention in this case is not correct. The first is that plaintiff never signed the contract. He put the logs into the river, doubtless, intending that the boom company should run them, as any other parties would intend, perhaps, if they neglected to run them themselves, that the boom company should do the work of running them. But, unless there is a contract existing between the parties agreeing upon the terms and price of running, the company is left, under the statute, to run such logs as obstruct the stream, and charge therefor a reasonable compensation. The terms of this statement, .embracing the rules, sent, out to the different log-owners, contemplate that, in order to make the contract binding between the parties, it should be accepted and signed and returned to the company; otherwise it may be presumed that, in the absence of any contract, the parties are left to that contract which is made by the statute.
But we are not prepared to accede to the proposition that these words were intended, in the connection in which they were used, that this woods scale should be the-scale upon which final settlement should be made, and that such scale should be binding upon both parties. The rule does provide that sworn weekly statements of the amount of logs sawed of each and every mark shall: be rendered by each mill-owner, from a statement by a sworn sealer, to the boom company, on the Monday succeeding. Now, if the woods scale is to be final and arbitrary of the amount which shall be paid for running the logs, of what use is this provision for the scaling of the logs in the mill, and rendering a sworn statement? Besides, as suggested by the circuit judge, if the woods scale is the criterion, if the party was to pay for the number of feet shown by the woods scale, then the- defendant would be equally bound to run and deliver that amount upon the final settlement, and, if there was a mistake in the woods scale, it might lay the defendant open to a large liability. We do not think there was any such agreement, or meeting of the minds of the parties, from what transpired with reference to these logs, as would justify us in holding that their minds agreed upon the woods scale which should determine the amount which should be paid for running the logs, or the amount of logs which should be delivered by the boom company. The circuit judge was inclined to the opinion that the parties had agreed upon that as the scale upon which settlement should be made, and instructed the jury that, unless they were satisfied that the defendant, through their carelessness and negligence in the running and •delivering of the logs, had failed to run and deliver the logs to the plaintiff, the plaintiff would not be entitled to recover; but that if, by their carelessness, they had neglected to run and deliver the logs mentioned in that scale, and had only run and delivered the quantity shown upon the trial to have been sawed at the mill, then the plaintiff might recover back the excess. We think this was putting the case in as favorable a light before the jury as the defendant was entitled to. It was not claimed that any logs had been run, and were still in the hands of the boom company, upon which the charges had :not been paid. They claimed to have delivered all the jogs that came to their hands. They certainly were not ■entitled to charge for running any more logs than they delivered, unless they could show that they were lost without their fault. And we think the burden of proof was upon them, if they claim an excess for running logs which they had not delivered, to show that they had per formed the work, and that the logs had been lost without their fault.
The scale-sheets were properly received in evidence, and we discover no error in the record before us, and judgment is affirmed.
The other Justices concurred. | [
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] |
Per Curiam.
Defendant was convicted, following a jury trial, of first-degree criminal sexual conduct. MCL 750.520b(l); MSA 28.788(2)(1). He was thereafter sentenced to serve a term of twenty to thirty years in prison. He now appeals and we affirm.
The victim was involved in a minor automobile accident on 1-94 in western Wayne County. She was initially unable to start her car. Defendant, who was driving a "commuter van,” pulled to the side of the road and offered assistance. Defendant was able to get the car started and the victim moved her car off the road. Defendant then offered to take the victim to a telephone. According to the victim, she got into the van with defendant because the commuter van service was a reputable company.
Defendant began driving around, without ever stopping at a telephone booth. At some point, they returned to the victim’s car and defendant expressed the opinion that, due to the damage to the car, the car was not drivable. Defendant then told the victim that he was on his way to the airport and that, if she wished, she could ride with him that far. The victim accepted the offer.
At some point after this, as they were driving along 1-94, defendant assaulted the victim and began to disrobe her. Defendant then forced the victim to submit to various sexual acts, including defendant’s digital penetration of the victim’s vagina and forcing the victim to perform fellatio on defendant. As he was driving the victim back to her car, defendant began choking her with her underwear, leaving a burn on the side of her neck. Once back at her car and released, the victim realized that her car was drivable and drove home, thereafter summoning the police.
Defendant first argues that he is entitled to a new trial because there was insufficient evidence to warrant binding him over on the charge of first-degree criminal sexual conduct. Defendant did not move to quash the information in the trial court, however, and therefore has failed to preserve this issue for appeal. People v Eagen, 136 Mich App 524, 528; 357 NW2d 710 (1984).
Defendant next argues that the trial court was without jurisdiction over the offense inasmuch as a Recorder’s Court judge presided over the trial and the crime was committed outside the corporate limits of the City of Detroit. On the basis of the facts of this case, we disagree. There is no dispute that the crime was committed within Wayne County, but outside the boundaries of the City of Detroit, and that the judge who presided over defendant’s trial was a Recorder’s Court judge. It is less clear, however, whether the Recorder’s Court judge was acting as a Wayne Circuit Court judge and, if not, whether Recorder’s Court nevertheless had authority to try defendant.
As to the question whether defendant was tried in Detroit Recorder’s Court or in Wayne Circuit Court with a Recorder’s Court judge presiding, the lower court record provides no direct answer to that question. The caption on the trial transcripts indicates that trial was held "in the recorder’s COURT FOR THE CITY OF DETROIT.” Of the Various forms filed in the lower court record, having boxes to be checked to indicate either Recorder’s Court or the Third Judicial Circuit, approximately one-third indicate Recorder’s Court, another third indicate the Third Judicial Circuit, and another third have neither box checked. However, we find these statements, or lack of statements, in the lower court record to be relatively unimportant to the resolution of the question whether the trial court had jurisdiction over the offense. To hold that the court lacked jurisdiction merely because the court reporter typed "in the recorder’s court for the city of Detroit" at the top of the trial transcript would exalt form over substance.
The Recorder’s Court of the City of Detroit has jurisdiction over only those crimes committed within the corporate limits of the City of Detroit. MCL 725.10a; MSA 27.3950(1). Thus, since the offense was committed outside the City of Detroit, Detroit Recorder’s Court would have no jurisdiction to try defendant. Accordingly, we must determine whether defendant was tried in the Recorder’s Court or in Wayne Circuit Court, which would have jurisdiction over the offense.
The mere fact that defendant’s trial was presided over by a judge of Detroit Recorder’s Court does not, in and of itself, resolve the issue before us. The Supreme Court is authorized to appoint "persons who have been elected and served as judges to perform judicial duties for limited periods or specific assignments.” Const 1963, art 6, §23. See also MCL 600.225; MSA 27A.225. The Supreme Court, in Administrative Order No. 1986-1, 426 Mich lxviii, "temporarily assigned” all judges of the Third Judicial Circuit as visiting judges of the Recorder’s Court of the City of Detroit and all judges of the Recorder’s Court were "temporarily assigned” as visiting judges of the Third Judicial Circuit. Thus, Recorder’s Court Judge Edwards was authorized to serve as a judge of the Third Judicial Circuit to preside over defendant’s trial.
Defendant, however, argues that Administrative Order No. 1986-1 represents an unconstitutional exercise of power by the Supreme Court. Defendant attacks the validity of the administrative order on the basis that the constitution merely grants the Supreme Court the authority to make temporary assignments of judicial duties for limited periods of time or specific tasks and the Supreme Court, in promulgating Administrative Order No. 1986-1, made an open-ended, rather than temporary, appointment of visiting judges to the Third Judicial Circuit and the Recorder’s Court. We are loath, however, to conclude that this Court possesses either the authority or the audacity to hold that the Supreme Court exceeded their constitutional authority in promulgating an administrative order.
Assuming for the sake of argument, however, that we are so empowered and emboldened, we must conclude that defendant’s argument, while perhaps appealing in form, must fail in substance. Clearly, even if the Supreme Court lacked the authority to make an open-ended appointment of visiting judges en banc, such as they did with the administrative order, they could certainly enter a series of specific orders in each case appointing the particular Recorder’s Court judge or circuit court judge as a visiting judge to the other court with respect to each individual case. What purpose would be served, however, by requiring the Supreme Court to have entered a series of thousands of individual orders rather than one administrative order? Since the Supreme Court could have reached the same result with individual orders that it achieved with one administrative order, we see little to be gained by the administrative incon venience of requiring those individual orders. Accordingly, we must reject the argument that Administrative Order No. 1986-1 exceeds the power granted to the Supreme Court by the constitution.
Defendant also challenges the practice of Recorder’s Court judges and circuit court judges visiting each other’s courts on the basis that judges are supposed to serve in the community to which they are elected and that both the community and the defendant have an interest in a trial being presided over by the judge elected from the community in which the offense occurred. Defendant’s argument in this regard also fails.
First, the constitution authorizes the appointment of visiting judges and nothing within the constitutional provision limits such appointments to those judges who have previously served on the bench to which they are assigned to visit. Indeed, to agree with defendant’s argument would virtually eliminate the visiting judge system in Michigan since we would have to restrict such visiting judge appointments to those judges who have previously served on the particular court’s bench.
Second, the Third Judicial Circuit’s local court rule 6.102(E) provides that either the prosecutor or the defendant may request that only judges elected or appointed to the court having jurisdiction over the offense be assigned to that case. The request must be filed in writing within seven days after the magistrate signs the return to circuit court. Thus, both the people’s and the defendant’s interests in having a case presided over by a trial judge elected from that jurisdiction are protected since either may insist on such an assignment.
Returning to the question originally posed, whether defendant was tried in the Recorder’s Court or in Wayne Circuit Court, the fact that Judge Edwards presided does not resolve that question since he is also an acting Wayne Circuit Court judge. We might resolve the question on the basis of whether the jury was drawn from the Recorder’s Court pool or the circuit court pool. Indeed, this would seem to be the issue of greatest substantial concern to a defendant. However, the record is singularly unenlightening as to whether the jury was selected from a Recorder’s Court pool or a circuit court pool. Simply, we cannot tell from the record where the jurors lived. However, defen dant’s brief does quote from a document outlining the court consolidation plan and that document specifically states that if a jury trial is held in a circuit court case, circuit court jurors will be used. Defendant does not allege, nor does the record affirmatively show, that this provision was ignored and a jury was drawn from the Recorder’s Court jury pool. Accordingly, we can only conclude from the scant, information available that a circuit court jury was empaneled. This, then, leads us to the conclusion that defendant was, in fact, tried in circuit court.
For the above reasons, we conclude that defendant was, in fact, tried in circuit court despite the fact that his trial was presided over by a Recorder’s Court judge and various documents in the lower court record may suggest that the trial was held in Recorder’s Court. Accordingly, we conclude that the trial court had jurisdiction to hear defendant’s case.
Next, defendant argues that certain statements made to the police were involuntary and should have been suppressed from evidence. We disagree. Both statements of which defendant now complains were made at defendant’s instigation and followed an interrogation at which defendant had been advised of his Miranda rights. Accordingly, the trial court’s determination that the statements were voluntarily made was not, when the facts are viewed in the totality of the circumstances, clearly erroneous. People v Godboldo, 158 Mich App 603; 405 NW2d 114 (1986).
Defendant next argues that the trial court erred in denying his motion for mistrial after the bailiff, on the court’s instruction, informed the jury of the progress being made on a jury request for a view of the van in which the alleged rape occurred. Although there is a strict rule requiring reversal when communication is made with a jury outside the presence of the court room and counsel, see People v Lyons, 164 Mich App 307; 416 NW2d 422 (1987), that rule is inapplicable to the case at bar since the communication was not conducted outside the presence of counsel. Since counsel had . the opportunity, fortuitous or otherwise, to hear the bailiffs statements to the jury, the automatic reversal rule does not apply and, in its place, defendant would have to make the ordinary showing of improper or prejudicial conduct warranting the grant of a mistrial. Since defendant argues on appeal only the applicability of the automatic reversal rule and does not argue, absent application of that rule, that the conduct involved merits a mistrial, we decline to reverse the trial court’s determination of this issue.
Finally, defendant argues that the trial court erred in accepting a verdict on one count and then asking the jury to continue deliberations on the remaining two counts because such procedure violates the spirit of the unanimity requirement and improperly invites compromise. However, defendant did not preserve this issue by raising an objection in the trial court. Furthermore, the issue is not properly before this Court since defendant cites no authority in support of his argument. People v Sovoda, 155 Mich App 735, 742; 400 NW2d 702 (1986).
Affirmed.
Mackenzie, P.J., concurred in the result only.
Similarly, the Supreme Court could presumably issue orders appointing the visiting judges on a monthly basis and achieve the same result. Again, however, little would be achieved by such a requirement beyond creating a plethora of paperwork.
One potential defect in Administrative Order No. 1986-1, which does not affect the case at bar, should be noted. The constitution grants the authority to the Supreme Court to appoint to judicial duties those judges who have been "elected” to judicial office. Presumably, therefore, judges who have been appointed by the Governor to fill vacancies under the authority granted to the Governor under the same section of the constitution are ineligible, under the terms of the constitution, to receive appointments as visiting judges until they stand for election and are "elected” judges. See Const 1963, art 6, § 23. Thus, Administrative Order No. 1986-1 may be ineffectual to the extent that its sweeping appointment of visiting judges includes those judges who have been appointed by the Governor and have not yet stood for election. This, however, does not affect the case at bar inasmuch as the presiding judge at trial, the Hon. Prentis Edwards, was appointed to the Recorder’s Court on January 21, 1985, 420 Mich xi, and has subsequently stood for election twice, in 1986 .and 1988. See 429 Mich xii and 432 Mich xi. Thus, Judge Edwards was constitutionally eligible to be appointed as a visiting judge to the Third Judicial Circuit.
Defendant’s argument that this protection is inadequate since the requirement. that the demand be made within seven days of the magistrate’s signing the return is an insufficient amount of time is unpersuasive on the facts of this case. Specifically, defendant makes no allegation or showing that he ever requested that the matter be assigned to a judge of the Third Judicial Circuit subsequent to the seven-day period and was refused because the request was untimely. Had defendant made such a request which was refused on the basis of timeliness under the court rule, defendant’s argument that the time period allowed to make such a request was inadequate could be entertained here. However, since no request was apparently ever made, the question of the adequacy of the lower court rule in requiring that the request be made within seven days of the return need not be determined in this case.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
The single case cited by defendant in support of his argument on this issue. People v Hickey, 103 Mich App 350; 303 NW2d 19 (1981), is not on point. | [
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R. B. Burns, J.
This is an appeal by the prosecutor of the sentences imposed on defendants after they pled guilty to possession with intent to deliver at least 225 grams but less than 650 grams of a mixture containing cocaine. MCL 333.7401(2)(a) (ii); MSA 14.15(7401)(2)(a)(ii). Pursuant to MCL 333.7401(4); MSA 14.15(7401)(4) of the amended statute, the sentencing court departed from the ten-year statutory minimum sentence prescribed by § 7401(2)(a)(ii) and entered a sentence of five to thirty years of imprisonment for each defendant.
First, the prosecutor claims that under the amended MCL 770.12(1); MSA 28.1109(1) the state may appeal a sentence as of right. This issue was decided in People v Reynolds, 181 Mich App 185, 188; 448 NW2d 774 (1989), where this Court determined that the amended statute authorized the prosecutor to take an appeal as of right from a defendant’s sentence. Thus, an appeal as of right is available to the prosecutor in this case.
Next, the prosecutor claims that the sentencing court did not state substantial and compelling reasons to depart from the statutory minimum sentence.
At the time applicable herein, MCL 333.7401(2) (a)(ii); MSA 14.15(7401)(2)(a)(ii) provided:
A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and:
(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 10 years nor more than 30 years. [Emphasis added.]
MCL 333.7401(4); MSA 14.15(7401)(4) provides:
The court may depart from the minimum term of imprisonment authorized under subsection (2)(a) (ii), (iii), or (iv) if the court ñnds on the record that there are substantial and compelling reasons to do so. [Emphasis added.]
The reasons provided by the court in support of its departure from the statutory minimum for the instant defendants include the following: they had histories of family problems which appeared to have been resolved; the amount of the mixture containing cocaine was approximately 237 grams, which is just over the minimum of 225 grams for this offense; there was a lack of criminal history; they had a work history; and they were middlemen in the situation. In addition, as to defendant Krause, the court stated he had "worked with the police on former problems.” The prosecutor contends that these reasons are not "substantial and compelling.”
The trial court’s discretion to depart from the statutorily mandated minimum sentences under § 7401 is very limited. In the recent decision of People v Downey, 183 Mich App 405, 416; 454 NW2d 235 (1990), a panel of this Court stated:
We conclude that the Legislature intended to give trial courts discretion to depart from the presumptively mandatory sentences only in exceptional cases. The scope of a sentencing court’s discretion is thus narrow, the factors used in departing must be objective and must be of such significance that the statutory sentence is clearly inappropriate to the offender. The trial court must keep in mind that the Legislature has declared that the mandatory minimum sentence is an appropriate sentence. The trial court must begin its analysis from that perspective. We review the trial court’s decision to impose an exceptional sentence for an abuse of the narrowly defined discretion which it possesses.
The issue of what constitutes substantial and compelling reasons was thoroughly addressed in Downey. After consideration of the statutory language, the Downey Court reviewed the presumptive sentencing statutes and guidelines from Washington and Minnesota and indicated that each of the factors adopted by those courts as substantial and compelling reasons to depart from those states’ presumptive sentencing guideline ranges should be considered substantial and compelling reasons to depart from the mandatory sentence prescribed in § 7401 to the extent they can apply to the offense and the offender. However, the Downey Court declined to limit the applicable considerations in departing from the mandatory sentences to the factors on these lists. Id., pp 412-413.
The Downey Court determined that the Legislature has required the sentencing judge to exercise his discretion with the presumption that the mandatory minimum sentence is the place to begin and that the sentence is appropriate and must remain there unless there are substantial and compelling reasons to depart. Id., p 413. We agree with Downey that the bases for determining departure must be objective and verifiable. Id., pp 414, 415. This means that the facts to be considered by the judge in determining substantial and compelling reasons must be actions or occurrences which are external to the minds of the judge, defendant and others involved in making the decision and must be capable of being confirmed. However, we disagree with the Downey panel’s conclusion that, because an action is taken or an incident occurs after a defendant’s arrest, such action or incident becomes subjective. See id., pp 415-416. The fact that a defendant expresses remorse, whether orally or in writing, is an objective action which can be confirmed. However, a defendant’s intent when he expresses remorse is within his own mind and is, therefore, subjective. It cannot be confirmed by his own statement. Consequently, his mere protestation of remorse should not be considered as a balancing factor for determining substantial and compelling reasons to depart from the mandatory sentence.
On the other hand, a defendant’s active involvement in volunteer work, or cooperation with the police after his arrest, are events which exist outside the minds of the persons involved in deciding the defendant’s sentence and can be verified. Although a defendant’s intent in engaging in these postarrest activities may very well be self-serving, such intent does not make the acts subjective in nature. We believe these activities, being objective and verifiable, may be considered by the judge in measuring a defendant’s punishment. However, such consideration should be tempered by an awareness that postarrest actions by the defendant are often undertaken for the primary purpose of influencing the sentencing judge. It is only when the sentencing court, upon an evaluation of all the objective, verifiable information, reaches the conclusion that the collective facts provide substantial and compelling reasons to depart from the mandatory sentence that it may, in the exercise of discretion, decide to do so.
In the present case, as to defendant Krause, the court stated that he had "worked with the police on former problems.” A defendant’s cooperation with the police may, in some circumstances, be so "substantial and compelling” as to warrant a sentence below the statutory minimum. However, in this case the extent of defendant Krause’s cooperation is not clear from the record. The extent of his cooperation must be objective and verifiable, as well as significant enough, when taken with other objective and verifiable factors, to be considered substantial and compelling in order to overcome the presumptive statutory minimum.
As to both defendants, the court stated that they were "middlemen.” It is unclear why the sentencing court determined that this was a factor to be considered. Being a middleman would not be a "minor or passive” role in relation to the crime for which they were convicted. See id., p 411. While defendants’ work histories prior to their arrests and their lack of criminal histories are factors which can be considered, id., p 415, it is doubtful these would attain the level of being substantial and compelling factors, standing alone. Further, the possible resolution of family problems and the fact that the amount of cocaine possessed was just over the minimum for the offense for which they were convicted are factors of little or no weight.
Because the sentencing court relied on factors which were not substantial and compelling in sentencing defendants, their sentences are vacated. We remand their cases for resentencing and instruct the trial court that, in doing so, it must begin with the mandatory sentences and require defendants to demonstrate objective and verifiable reasons to justify departure. Only if these are "exceptional” cases should defendants receive sentences less than the statutorily mandated minimum. Id.
Reversed and remanded for resentencing consistent with this opinion and in light of Downey. We do not retain jurisdiction.
Reilly, J., concurred. | [
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] |
Marilyn Kelly, J.
Appellant, Ronald Hoogewerf, appeals as of right the circuit court’s order regarding the distribution of proceeds of a wrongful death judgment pursuant to MCL 600.2922(6); MSA 27A.2922(6). On appeal, Ronald claims that the trial court erred in awarding him only ten percent of the monies recovered as a result of his son’s death. We affirm.
Christopher Hoogewerf died on November 3, 1984. His mother, Judy Hoogewerf, was named personal representative of his estate. She filed a wrongful death action against Michael Kovach and Orleans Family Restaurant. The suit was ultimately settled with entry of a consent judgment totalling $159,139.92. Christopher was survived by his father, his mother, two brothers and two grandparents.
On June 13, 1988, the court entered an order approving attorney fees and awarding each grandparent 2 Vi percent of the net proceeds. An eviden tiary hearing then was held to determine distribution of the remaining ninety-five percent.
Following the hearing the judge found that Judy Hoogewerf had suffered the greatest loss from the death of Christopher. He also found that Christopher had a closer relationship with his brothers than his father. Accordingly, the judge awarded Judy fifty-five percent of the proceeds, each brother received fifteen percent, and Ronald received ten percent.
Initially we note that there exists no clear standard of review of the trial court’s allocation of wrongful death proceeds. The statute requires the court to distribute the proceeds to designated surviving relatives and the estate in a fair and equitable manner considering the relative damages sustained by each party. MCL 600.2922(6)(d); MSA 27A.2922(6)(d).
A panel of this Court articulated a standard of review in a case involving distribution of wrongful death proceeds in probate court. It held that the findings of fact of a probate judge may not be reversed, unless the evidence clearly preponderates in the opposite direction. In re Young Estate, 119 Mich App 307, 313; 326 NW2d 492 (1982). The exact meaning of the Young standard is unclear. Also, Young was appealed from a different court. We decline to apply it to this case.
The appropriate standard is the one mandated by the court rule. Findings of fact by the trial court may not be set aside unless clearly erroneous. MCR 2.613(C). In reviewing the findings, we give due regard to the special opportunity of the court to judge credibility. In re Dupras, 140 Mich App 171, 174; 363 NW2d 26 (1984). We then review the court’s distribution of the proceeds, based on its findings, for an abuse of discretion.
In this case, the evidence supports the finding that Judy Hoogewerf sustained by far the greatest loss on the death of Christopher. After his parents divorced in 1972, Christopher lived with his mother and brothers for all but three months. He contributed financially to the family household. Ronald often failed to make timely support payments. The judge did not clearly err when he found that Christopher’s relationship with his mother and brothers was much closer than his relationship with his father. Based on the findings, the distribution of proceeds was not an abuse of discretion.
Affirmed. | [
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Sullivan, J.
On remand from the Supreme Court for consideration as on leave granted, 432 Mich 930 (1989), plaintiff appeals from an opinion and order of the Workers’ Compensation Appeal Board denying disability compensation. We reverse and remand.
Plaintiff, an hourly employee of defendant, was struck by an automobile while crossing a public street on his way to work. Defendant provided parking for its employees in a lot situated on the south side of an east-west street. The street dead-ends at defendant’s plant. The salaried employees’ parking area was immediately to the east of defendant’s plant. The hourly employees’ parking area was, in turn, located immediately to the east of the salaried employees’ parking area. On the morning of February 8, 1980, plaintiff parked his car in the hourly employees’ parking area. He then left the lot intending to walk to the plant along a sidewalk on the opposite (north) side of the street from the parking area. As noted, plaintiff was struck while crossing the street.
The appeal board concluded that plaintiffs injury did not occur in the course of his employment because plaintiff left defendant’s "protected zone” when he crossed the street and because defendant did not control the route plaintiff traveled to work. We disagree.
The general rule is that injuries suffered by an employee while going to or coming from work are not compensable. Bush v Parmenter, Forsythe, Rude & Dethmers, 413 Mich 444, 451; 320 NW2d 858 (1982); Thomas v Staff Builders Health Care, 168 Mich App 127, 129; 424 NW2d 13 (1988), lv den 430 Mich 886 (1988). This general rule is supplemented by MCL 418.301(3); MSA 17.237(301) (3) [formerly MCL 418.301(2); MSA 17.237(301X2)], which provides in relevant part:
An employee going to or from his or her work, while on the premises where the employee’s work is to be performed, and within a reasonable time before and after his working hours, is presumed to be in the course of his or her employment.
This provision, when read literally, requires that the injury occur on the employer’s premises to give rise to the presumption. Upton v General Motors Corp, 124 Mich App 61, 65; 333 NW2d 384 (1983), lv den 417 Mich 1100.12 (1983). Nevertheless, cases decided by this Court in the 1960s and 1970s expanded the meaning of "premises” to encompass areas outside the employer’s actual property. Upton, supra; Fischer v Lincoln Tool & Die Co, 37 Mich App 198, 202; 194 NW2d 476 (1971), lv den 387 Mich 755 (1972).
When plaintiff’s accident occurred, he was within the zone, environments and hazards of his labor and, therefore, was presumed to be in the course of his employment under the coming-and- going provision at issue, MCL 418.301(3); MSA 17.237(301)(3). In discussing a coming-and-going provision virtually identical to the one at issue in this case, our Supreme Court in Lasiewicki v Tusco Products Co, 372 Mich 125, 131; 125 NW2d 479 (1963), quoted a pertinent "important principle” from Hills v Blair, 182 Mich 20, 27; 148 NW 243 (1914), an early case in which the Court construed the language "arising out of and in the course of employment” relative to place of injury:
"In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment. One of the tests sometimes applied is whether the workman is still on the premises of his employer. This, while often a helpful consideration, is by no means conclusive. A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazards, as to be in effect at the place and under the protection of the act.” (Emphasis supplied.)
Quoted in Hills v Blair, supra, as authority for the proposition above stated, is [one] of the earlier authorities from English compensation law, a progenitor of the Michigan statute. In Hoskins v Lancaster, 3 BWCC 476, 480, it was held (26 TLR 612):
"It is not a sufficient test that the workman should be on the premises of the employer; but it may be sufficient that he is in such a state of proximity as may be treated as a reasonable margin in point of space.”
Relying in part on the language quoted above, a panel of this Court later held that an employee injured while crossing a highway on his way from his employer’s factory to an employer-leased parking lot for employees fell within the language of the pertinent coming-and-going provision. Jean v Chrysler Corp, 2 Mich App 564; 140 NW2d 756 (1966). Reaching the employee parking lot after his shift was over, with no unwarranted lapse of time, was a "necessary adjunct of the [employee’s] employment.” Id., p 570. Jean was good law then. It is good law today. Also see Adair v Metropolitan Building Co, 38 Mich App 393; 196 NW2d 335 (1972).
Nor does the case of McClure v General Motors Corp (On Rehearing), 408 Mich 191; 289 NW2d 631 (1980), reh den 408 Mich 1109 (1980), compel a different result. In McClure, the question was whether injuries suffered off the employer’s premises at lunch hour were compensable. A majority of the Supreme Court declined to extend the workers’ compensation act to injuries suffered any place in which the employee may be during the work day. A plurality opinion, warning against expansion of workers’ compensation coverage by judicial decision, held that, although it may have been a "circumstance” of the plaintiffs’ employment that they had been injured off-premises during lunch hour, the Legislature has not yet seen fit to provide compensation for off-premises activity of a personal character. Id., p 207. Although plaintiff here had another route to defendant’s plant which would not require him to cross the street, we do not believe that he was engaged in an activity of a personal character when he was crossing the street.
Panels of this Court have been reluctant to extend the meaning of the word "premises” in MCL 418.301(3); MSA 17.237(301X3). See, e.g., Denny v Kostadinovski, 117 Mich App 517; 324 NW2d 19 (1981). Although we understand that reluctance, we do not believe that we should mount a retreat from established law. While we should not be enslaved to precedent, it would be well to remember what was written in Mahnich v Southern Steamship Co, 321 US 96, 113; 64 S Ct 455; 88 L Ed 561 (1944):
The tendency to disregard precedents . . . has become so strong [as] ... to shake confidence in the consistency of decision and leave the courts below on an uncharted sea of doubt . . . without any confidence that what was said yesterday will hold good tomorrow.
Accordingly, we reverse the appeal board’s conclusion that plaintiffs injury did not occur in the course of his employment. This case is remanded to the appeal board to resolve the two-member board’s split over whether plaintiff was disabled. MCL 418.261(2); MSA 17.237(261X2).
Reversed and remanded. We do not retain jurisdiction.
Reilly, P.J., concurred. | [
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] |
Michael J. Kelly, J.
This case involves a dispute between two factions of shareholders of Woodmere Cemetery, Inc. The dispute surfaced when plaintiffs, the majority faction, decided to replace Woodmere’s board of directors which was controlled by defendants, the minority faction. After plaintiffs called a special shareholders’ meeting for December 9, 1988, to remove the existing board, defendants scheduled a special board meeting for December 8, 1988, for the purpose of issuing additional stock to themselves in order to obtain control of the corporation. On December 7, 1988, plaintiffs were granted a restraining order which prohibited the board from holding its meeting until after the special shareholders’ meeting. With defendants absent, plaintiffs proceeded on December 9, 1988, to elect from among themselves a new board of directors. Defendants challenged the validity of the shareholders’ meeting and held a special board meeting on December 10, 1988. At that meeting, defendants amended the corporate bylaws to eliminate preemptive stock rights and issued to themselves additional stock effecting a controlling interest in the corporation. Thereafter, actions were filed wherein the factions each sought the ratification of its own special meeting and nullification of the other faction’s meeting.
Following a hearing on January 10, 1989, the circuit court granted plaintiffs injunctive relief and ordered that both special meetings be nullified and that a new shareholders’ meeting be held at which the board of directors was to be elected by all shareholders. That meeting was held on February 1, 1989, and plaintiffs succeeded in obtaining control of the board. Subsequently, the circuit court granted plaintiffs’ motion for summary disposition and dismissed the lawsuits. Defendants appeal as of right. We affirm.
Defendants essentially make two claims on appeal, the first being that the circuit court improperly granted the preliminary injunction. Defendants state that the trial court held an invalid hearing, that plaintiffs failed to show cause for the injunction, and that the circuit court did not set forth the reasons for issuing the injunction. We find no error.
MCR 3.310(A) provides that an injunction may not be granted before a hearing on the motion is conducted and, further, that the moving party has the burden of establishing that the relief should be granted. Additionally, MCR 3.310(C)(1) declares that an order granting an injunction must set forth the reasons for its issuance. Although it is not compulsory for a trial court to hold an evidentiary hearing before the issuance of an injunction, some formal hearing is required. Fancy v Egrin, 177 Mich App 714, 722; 442 NW2d 765 (1989). If a party’s entitlement to the injunction can be established in a particular case by argument, brief, affidavits or other forms of nontestamentary evidence, the trial court need not take testimony at the hearing. Id., p 723. The trial court must, however, conduct an evidentiary hearing where the circumstances of the case require such a hearing. Id.
In the present case, the parties placed their respective positions on the record and the trial court then provided its reasons for granting the injunction. It is apparent from the record that the parties also presented some argument in chambers. In addition to the hearing, the trial court relied on the parties’ petitions, pleadings, and affidavits in determining plaintiffs’ entitlement to the injunction. The trial court also set forth in the order its reasons for granting the injunction. We therefore find that the trial court satisfied the requirements of MCR 3.310.
Defendants further argue that plaintiffs did not meet their burden of proof for injunctive relief and that the injunction impermissibly disturbed the status quo and granted plaintiffs’ final relief. We disagree.
Our Supreme Court in Michigan State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 157-158; 365 NW2d 93 (1984), enunciated a four-factor analysis to determine whether a preliminary injunction should be issued: (1) the likelihood that the party seeking the injunction will prevail on the merits; (2) the danger that the party seeking the injunction will suffer irreparable injury if the injunction is not issued; (3) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief; and (4) the harm to the public interest if the injunction is issued. Other considerations surrounding the issuance of a preliminary injunction are whether it will preserve the status quo so that a final hearing can be held without either party having been injured and whether it will grant one of the parties final relief prior to a hearing on the merits. Bratton v DAIIE, 120 Mich App 73, 79; 327 NW2d 396 (1982). This Court will hot overturn a trial court’s grant or denial of a preliminary injunction save for an abuse of discretion. Id.
Here, plaintiffs established the likelihood of their success on the merits. Defendants initially argue that plaintiffs had no authority to challenge the issuance of the new stock because they did not first satisfy the demand requirement of MCL 450.1491; MSA 21.200(491). However, a demand is not required where it would be futile, as is the case here. See Kimball v Bangs, 321 Mich 394, 418; 32 NW2d 831 (1948).
Next, defendants argue that the first board of directors properly amended the corporate bylaws to eliminate the shareholders’ right to a pro rata offering of new stock and then properly issued that new stock only to themselves. We disagree.
It is well established that stock issued for the purpose of establishing control of the corporation, and not having some corporate goal as its principal purpose, is fraudulent as against the other shareholders and cannot be permitted to stand. Essex v Essex, 141 Mich 200; 104 NW 622 (1905). It is obvious from the present record that the first board’s motive for the stock issue was to obtain control of the corporation. Defendants’ contention that their efforts to establish control were for the good of the corporation because plaintiffs intended to "siphon funds” therefrom does not persuade this Court to find differently. If such is the case as defendants allege, then their proper action would be to bring suit against the majority for breach of fiduciary duty to the corporation, see Production Finishing Corp v Shields, 158 Mich App 479, 486; 405 NW2d 171 (1987), lv den 430 Mich 859 (1988), cert den 488 US 955; 109 S Ct 392; 102 L Ed 2d 381 (1988), rather than to wrestle control of the corporation away from them, see Stott Realty Co v Orloff, 262 Mich 375; 247 NW 698 (1933). Furthermore, the situation at hand is easily distinguishable from those cases cited by defendants wherein management or a majority faction successfully manipulates company stock in order to fend off a corporate raider or to frustrate a dissident minority. See, e.g., Treadway Cos, Inc v Care Corp, 638 F2d 357 (CA 2, 1980); Heit v Baird, 567 F2d 1157 (CA 1, 1977). Those cases deal with management’s right to resist unfriendly takeovers which would be harmful to the corporation and adverse to corporate goals. Here, defendants attempt to impose their will over that of the majority and, thus, over that of the corporation.
Defendants also assert that the rural cemetery corporations act, MCL 456.101 et seq.; MSA 21.871 et seq., prohibited the removal of the first board prior to the end of their one-year term. The act provides that directors "shall serve for the ensuing year, and until their successors shall be chosen.” MCL 456.104; MSA 21.874. Woodmere’s bylaws, however, allow for the removal of directors by a vote of a majority of the shareholders. Although a bylaw may be invalid, it is nonetheless binding on stockholders who themselves, voluntarily and for their own benefit and protection, enacted it. Wei-land v Hogan, 177 Mich 626, 631; 143 NW 599 (1913); Allied Supermarkets, Inc v Grocer’s Dairy Co, 391 Mich 729, 736; 219 NW2d 55 (1974). Since they participated in the enactment of the foregoing bylaw, defendants are now estopped from challenging its validity.
Next, given the fact that two boards were simultaneously attempting to lead Woodmere in different directions, we have no difficulty in finding that the second and third elements of the injunction analysis were fulfilled. And since defendants concede that the fourth element is irrelevant to this case, we are satisfied that the injunction met the test set forth in Michigan State Employees Ass’n, supra.
As to the remainder of defendants’ first claim, we find that the injunction preserved the status quo and did not grant plaintiffs all of the relief which they had requested. The status quo to be preserved by a preliminary injunction is the last actual, peaceable, noncontested status preceding the pending controversy. Bratton, supra. The instant injunction did just that. It nullified both parties’ special meetings and returned them to their status prior to the controversy.
The final relief sought by plaintiffs, included the ratification of their special meeting held on December 9, 1988. The trial court did not grant this but instead ordered the parties to resolve their differences according to Michigan law and the corporation’s bylaws. Although the outcome of the court-ordered meeting was the same as that of plaintiffs’ special meeting, defendants had the opportunity to participate and to persuade a member or members of the majority to break rank. Hence, the trial court did not abuse its discretion in granting the injunction.
Defendants’ second claim on appeal is that the trial court erred in granting summary disposition pursuant to MCR 2.116(0(10) in favor of plaintiffs. We disagree.
A motion for summary disposition brought under MCR 2.116(0(10) tests whether there is factual support for the claim. The nonmoving party has the burden of showing that a genuine issue of material fact exists. The court must consider the pleadings, depositions, admissions, affidavits, and other documentary evidence available to it and must give the benefit of any reasonable doubt to the nonmovant. The granting of the motion is proper only if the court is satisfied that no factual development could justify recovery by the nonmoving party. Pantely v Garris, Garris & Garris, PC, 180 Mich App 768, 773; 447 NW2d 864 (1989).
The facts of this case have not been materially contested. As discussed above, in determining the first element of the injunction analysis, defendants failed to create a genuine issue of material fact concerning the merits of this case. Following the trial court’s issuance of the injunction and the February 1, 1988, shareholders’ meeting, no issue remained in dispute. Therefore, the trial court did not err in granting plaintiffs’ motion for summary disposition.
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] |
Sawyer, J.
Defendant was convicted, following a jury trial, of possession of cocaine in an amount of 225 grams or more but less than 650 grams. MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii). He was sentenced on his conviction to serve a term of ten to thirty years in prison. He now appeals and we reverse.
Defendant was stopped on 1-94 in Berrien County for speeding on August 13, 1988. He and a codefendant, Mark Shores, who was a passenger in the car, were asked to step out of the vehicle. At some point, defendant reentered the vehicle to retrieve the registration and proof of insurance. The State Police trooper observed defendant kicking a brown paper bag in front of the driver’s seat. That bag was later found to contain 493 grams of a substance containing 93 percent cocaine.
Defendant was originally charged with and tried for possession with the intent to deliver cocaine in an amount of 225 grams or more but less than 650 grams. MCL 333.7401(2)(a)(ii); MSA 14.15(7401X2) (a)(ii). Defendant’s theory was that he had simply been driving the vehicle on behalf of Shores since Shores had a suspended license and that the cocaine did not belong to defendant. At the conclusion of trial, defense counsel requested that the jury be instructed on simple possession, to which the prosecutor did not object, and the jury was given an instruction which substantially conformed with CJI 12:3:00, which covers violations of § 7403(2)(a). As indicated above, defendant was, in fact, convicted of this offense.
Following his conviction, defendant moved for a new trial on the basis of improper jury instructions in that defendant maintained that the jury should have been instructed on simple possession under § 7403(2)(b) rather than (2)(a). The trial court denied that motion.
Defendant again argues on appeal that he was entitled to an instruction based on a violation of subsection (2)(b) of § 7403 rather than subsection (2)(a). We agree.
At the time of the instant offense, MCL 333.7403; MSA 14.15(7403) provided as follows:
(1) A person shall not knowingly or intentionally possess a controlled substance unless the controlled substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this article.
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and:
(i) Which is in an amount of 650 grams or more of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for life.
(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 10 years nor more than 30 years.
(iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 5 years nor more than 20 years.
(iv) Which is in an amount of 25 grams or more, but less than 50 grams of any mixture containing that controlled substance is guilty of a felony, and shall be imprisoned for not less than 1 year and not more than 4 years, and may be fined not more than $25,000.00 or placed on probation for life.
(v) Which is in an amount less than 25 grams of any mixture containing that controlled substance is guilty of a felony, punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both.
(b) A controlled substance classified in schedule 1, 2, 3, or 4, except a controlled substance classified in schedule 1 for which a penalty is prescribed in subdivision (a), (c), or (d), is guilty of a felony, punishable by imprisonment for not more than 2 years, or a fine of not more than $2,000.00, or both.
(c) Lysergic acid diethylamide, peyote, mescaline, dimethyltryptamine, psilocyn, psilocybin, or a controlled substance classified in schedule 5, is guilty of a misdemeanor, punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.
(d) Marihuana, is guilty of a misdemeanor, punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.
(3) The court may depart from the minimum term of imprisonment authorized under subsection (2)[(a)](ii), (iii), or (iv) if the court finds on the record that there are substantial and compelling reasons to do so.
The question arises concerning which subsection the simple possession of cocaine is punished under. The answer, surprisingly, is that the simple possession of cocaine is punishable under both subsections (2)(a) and (2)(b). Subsection (2)(a) is applicable because that subsection applies to any substance contained in Schedules 1 or 2 and which is either a narcotic drug or is described in MCL 333.7214(a) (iv); MSA 14.15(7214)(a)(iv), the latter reference being to cocaine and other derivatives of coca leaves. Simple possession of cocaine, however, is also punishable under subsection (2)(b) since that subsection applies to any substance classified in Schedules 1, 2, 3 or 4 except for a Schedule 1 substance for which a penalty is prescribed in subdivisions (a), (c) or (d). Cocaine, although punishable under subdivision (2)(a), is not a Schedule 1 substance. Rather, cocaine is a Schedule 2 substance. See MCL 333.7214(a)(iv); MSA 14.15(7214) (a)(iv); see also 1986 AACS, R 338.3116(l)(e). Since cocaine is a Schedule 2 substance, it does not come within the exception to subsection (2)(b) and, therefore, simple possession of cocaine is punishable under § 7403(2)(b) as well.
The difference in penalties between subsection (2)(a) and subsection (2)(b) is significant. The statute, as it existed at the time of the offense, punished simple possession of cocaine under subsection (2)(a) in a range from four years in prison for possession of less than 25 grams up to mandatory life in prison without parole for possession of 650 grams or more. In fact, the offense for which defendant was convicted carried a mandatory minimum sentence of ten years and a maximum sentence of thirty years. Subsection (2)(b), on the other hand, imposes a maximum sentence of two years, with no mandatory minimum.
First, it is evident that simple possession is a necessarily lesser included offense to possession with intent to deliver since the only distinguishing characteristic is the additional element of the intent to deliver in the greater offense. Cf. CJI 12:3:00 with CJI 12:3:01; see also People v Beach, 429 Mich 450, 461; 418 NW2d 861 (1988) (lesser included offense is an offense such that it is impossible to commit the greater offense without first having committed the lesser offense). While possession does not necessarily constitute a lesser included offense of delivery, People v Kamin, 405 Mich 482, 497-498; 275 NW2d 777 (1979), simple possession is a necessarily lesser included offense of possession with intent to deliver since one obviously cannot possess a controlled substance with the intent to deliver it without having also committed the offense of possession. Accordingly, since defendant was charged with possession with intent to deliver, he was entitled to an instruction on simple possession.
There remains, however, the question whether defendant’s failure to object to the instructions as given constitutes a waiver of this issue and, similarly, whether the trial court’s instruction as given adequately met defendant’s request. We answer both questions in the negative.
When the trial court inquired as to any requested instructions on lesser included offenses, defense counsel responded, "Yes, possession.” Thus, an instruction on simple possession was requested, though defendant did not object following the jury instructions when the trial court gave the instruction which corresponds to § 7403(2)(a). A failure to object to an instruction waives appellate review absent manifest injustice. People v Benson, 180 Mich App 433, 436; 447 NW2d 755 (1989). Under the unique facts of this case, we conclude that a miscarriage of justice would result if we were to fail to review this issue. First, as noted above, an instruction on simple possession was requested. Second, the difference in penalties between the two statutes is significant, with the misinstruction resulting in defendant’s serving a ten- to thirty-year term instead of facing a maxi mum possible sentence of two years. Third, the statute itself is inherently ambiguous since it punishes the possession of cocaine under two separate, divergent subsections. Fourth, the Criminal Jury Instructions lend further confusion to the issue since Use Note 1 to CJI 12:3:01, which is the appropriate instruction to give under § 7403(2)(b), incorrectly states that that instruction is not to be given if the offense involves cocaine. Finally, there exists no logical reason why a defendant charged with possession with intent to deliver 225 grams or more of cocaine would want a simple possession instruction under § 7403(2)(a) since the penalties are the same as for possession with intent to deliver, but that instruction would allow the jury to convict on less evidence, since the jury would not have to find the element of delivery. With all of these factors in mind, we conclude that a manifest injustice would result if we failed to review this issue.
Next, we do not believe that the trial court’s instruction adequately covered defendant’s request. In defendant’s motion for a new trial, defense counsel stated that he requested an instruction on simple possession with the belief that a conviction for simple possession would carry a lesser penalty. Indeed, as we noted above, there exists no rational reason why a defendant charged with possession with intent to deliver would want an instruction on simple possession unless a simple possession conviction would carry a lesser penalty. As applied to defendant in the case at bar, only a simple possession conviction under § 7403(2) (b) would carry a lesser penalty. Thus, giving an instruction based on CJI 12:3:00 for a violation under § 7403(2)(a) actually placed defendant in a worse position than if no instruction on simple possession had been given at all since defendant was exposed to the same penalty, yet the jury could convict on less evidence, namely; not having to find that defendant had the intent to deliver. In fact, since the jury did convict defendant for simple possession, rather than possession with intent to deliver, it is apparent that the jury concluded that defendant had no such intent and may quite well have acquitted defendant entirely had no instruction on simple possession been given. Accordingly, we must conclude that defendant’s request for an instruction on simple possession could be adequately granted only by instructing the jury under § 7403(2)(b) with an instruction based upon CJI 12:3:01.
As for the prosecutor’s argument that any error was harmless since the jury clearly found that defendant possessed an amount of cocaine over 225 grams, that position is without merit. It is irrelevant what amount of cocaine defendant possessed. It matters not whether a person possesses a quarter gram of cocaine or a quarter ton of cocaine as § 7403(2)(b) would apply to either offense. Simply, subsection (2)(b) does not distinguish on the basis of weight and, therefore, the weight of the substance is irrelevant. At most, the jury’s conclusion that defendant possessed more than 225 grams of cocaine would support a conviction under either subsection (2)(a) or subsection (2)(b). Moreover, the instructional error is not harmless since the jury did convict on the lesser offense for which an instruction was given rather than the greater offense. See Beach, supra at 490-491.
Finally, there remains the issue of the appropriate remedy to be afforded defendant. The appropriate procedure for this case is to reverse the conviction and instruct the trial court to enter a conviction on the lesser offense and to resentence accordingly, with an option to the prosecutor to retry on the original charge on which defendant was convicted. See Kamin, supra at 498, 501.
Accordingly, we reverse defendant’s conviction for possession of cocaine in an amount of 225 grams or more under MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii) and remand the matter to the trial court with instructions to enter a conviction against defendant for possession of cocaine in violation of MCL 333.7403(2)(b); MSA 14.15(7403)(2)(b) and to resentence defendant accordingly. However, the prosecutor has the option of retrying defendant for possession of cocaine in an amount of 225 grams or more under MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii) provided the prosecutor files a motion to do so prior to sentencing. If retrial is sought, the trial court will, of course, have to instruct the jury on possession under both subsections 7403(2)(a) and (b). We note that there exists a great potential for confusion by the jury in distinguishing between the two offenses since the only difference between the two offenses is that the weight of the substance is relevant under subsection (2)(a) and is irrelevant under subsection (2)(b). We leave it, however, for the trial court and the parties to fashion an appropriate instruction to address this potential problem.
In light of our disposition of the above issue, it is unnecessary to consider defendant’s remaining issues.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Weaver, J., concurred in the result only.
Thus, the provision in the parties’ stipulated facts to the effect that the prosecutor would have objected had he known that defendant was requesting an instruction under § 7403(2)(b) is of little relevance to this matter. Since this offense is a necessarily lesser included offense to the charged offense and is punishable by imprisonment for two years, defendant was entitled to the instruction. Beach, supra at 463-465.
Use Note 1 provides as follows:
This instruction is to be used for any controlled substance found in Schedules 3, 4 or 5, or any Schedule 1 or 2 substances which are neither narcotic drugs nor cocaine-related substances as described in MCL 333.7214(a)(iv); MSA 14.15(7214)(a)(iv).
As discussed above, this use note is incorrect since it states that the instruction should not be given if the charge involves possession of cocaine, a Schedule 2 substance, and, as discussed above, subsection (2)(b) of the statute does cover possession of cocaine since it is a Schedule 2 substance.
For that matter, this principle applies to any possession charge for cocaine or a narcotic drug in Schedules 1 and 2 in an amount of fifty grams or more, since the penalties for those offenses under § 7401(2) (a) foi; possession with intent to deliver are the same as for simple possession under § 7403(2)(a).
Our decision is, of course, without prejudice to defendant to raise in the trial court any issue related to the propriety of charging under § 7403(2)(a) with respect to cocaine and the inherent ambiguity in the statute. | [
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Per Curiam.
Defendant, Allstate Insurance Company, appeals as of right from a February 14, 1989, order granting summary disposition in favor of plaintiff, Foremost Insurance Company, subrogee of State Employees Credit Union, in this action to recover insurance benefits for the fire loss of a motor home insured by defendant. We affirm.
Bobby Taylor executed an installment note with secu, which note was secured by a 1982 motor home. Secu was named as a lienholder on the title to the motor home. On the same day, Taylor entered into a separate contract with defendant Allstate to provide motor vehicle insurance for the motor home. The declaration sheet and the certificate of insurance designated secu as a lienholder. In recognition of secu’s interest in Taylor’s vehicle, Allstate issued the credit union a "loss payable clause” which provides in pertinent part:
Loss or damage, if any, . . . under the policy shall be payable as interest may appear to [State Employees Credit Union] and this insurance as to the interest of the . . . secured party . . . shall not be invalidated by any act or neglect of the . . . Owner of such automobile . . . provided, however, that the conversion, embezzlement or secretion by the . . . Debtor in possession of the property in sured under a . . . mortgage or other security agreement is not covered under such policy, unless specifically insured against and premium paid therefore.
Thereafter, the motor home was destroyed by fire. Neither party contests that the fire was intentionally set by Taylor in an attempt to defraud Allstate. Taylor’s insurance claim was accordingly denied by Allstate. Allstate also denied secu’s request for coverage under the policy based on secu’s interest as a lienholder to the motor home. Thus, Foremost, as subrogee of secu, filed the instant action against Allstate seeking recovery for the loss of the motor home. Defendant now appeals from the trial court’s order granting summary disposition in favor of Foremost.
On appeal Allstate claims the trial court erred in finding coverage existed under the loss payable clause where the property was destroyed by an intentional act of the insured owner and the underlying policy denied such coverage. We disagree.
A "standard” or "union” loss payable clause, such as the one herein at issue, operates as a separate and distinct contract of insurance and gives the mortgagee or lienholder an independent status which might authorize a recovery by the mortgagee-lienholder even though recovery is precluded to the mortgagor-owner. Citizens State Bank of Clare v State Mutual Rodded Fire Ins Co of Michigan, 276 Mich 62; 267 NW 785 (1936). We believe the instant case presents such a situation. Here no one contests that Taylor’s intentional conduct precludes his recovery under the policy. However, the loss payable clause issued secu specifically stated that, as to secu, the insurance would not be "invalidated” by "any act or neglect” of Taylor. We therefore find no error in the trial court’s conclusion that Taylor’s acts of arson and misrepresentation did not preclude recovery by Foremost as secu’s subrogee under the loss payable clause.
Contrary to defendant’s assertions, Boyd v General Motors Acceptance Corp, 162 Mich App 446; 413 NW2d 683 (1987), does not require a different result. In Boyd, a panel of this Court held that, although loss payable clauses constitute separate contracts of insurance, a loss payable clause cannot provide greater coverage than that provided in the underlying policy. Thus, as the underlying policy in Boyd provided coverage only for accidental losses, recovery by the lienholder pursuant to the loss payable clause for damages resulting from an intentional act would have expanded the scope of coverage and was properly denied. No such result would obtain in the instant case. Here, the underlying policy specifically provides for comprehensive insurance coverage where the loss is occasioned by fire, theft, larceny, malicious mischief, vandalism, etcetera. Thus, the policy itself clearly covers intentional acts and the loss payable clause precludes a denial of recovery where the covered act is caused by the insured.
We also reject Allstate’s claim that the loss payable clause’s express exclusion of coverage for losses occasioned by the debtor’s "conversion” precludes Foremost’s recovery as we do not believe a person can "convert” his own property. Nor does anything in the policy indicate that the "conversion” exclusion refers to anything but the insured property, the motor home.
Affirmed. | [
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] |
Doctoroff, J.
The City of Troy appeals as of right from an April 4, 1989, decision and order of the Michigan Employment Relations Commission which was contrary to the decision and recommended order of the hearing referee. The commission found that the city committed an unfair labor practice when it disciplined two union officials who were attempting, in good faith, to properly represent a union member. We reverse.
The AFSCME, Council 25, Local 574-A represents a bargaining unit composed of nonpolice employees of the city. Police Service Aide Karen Zielesch, a member of the bargaining unit and an employee of the city since 1984, was the only witness to an indecent exposure committed by another police service aide in the lockup facility of the Troy Police Department. She and her union representative, Kathleen Powell, informed their supervisor of the incident so that the supervisor would be aware of a possible problem. They stated, however, that they wished to avoid any formal action.
On December 9, 1985, Zielesch received the following memorandum:
Karen: Please report to Chief Carey’s office on Thursday, December 12, at 3:30 p.m. The Chief would like to discuss with you an incident that happened in lockup a short time ago that you may have some information on. There is no complaint against you in any way and you will not need a shift rep.
However, after receiving this memorandum, Zielesch did request that the union represent her in any investigation to be conducted.
On December 12, 1985, Zielesch, accompanied by Powell, met with Chief Carey and the internal affairs lieutenant. At the beginning of the meeting Zielesch was given a copy of General Order 17, which provides that all employees are required to cooperate in personnel investigations and may be disciplined for failing to obey an order issued pursuant to General Order 17. During this meeting, Zielesch answered questions regarding the incident in the lockup. She later testified that she was upset before and after the meeting, and with the whole situation.
In January, 1986, the employee who had committed the offense was discharged and the union filed a grievance. In March, Zielesch received a memorandum requesting that she meet with personnel director Ronald Dowell regarding an arbitration hearing on the grievance. Dowell, who had reviewed a transcript of the previous meeting with Chief Carey, testified that he was concerned about Zielesch’s reaction to the situation and her apparent reluctance to testify against a fellow employee. According to Dowell, the purpose of the meeting was to allow him to explain defendant’s reasons for taking disciplinary action and to make Zielesch more comfortable with the situation.
On the day the meeting was originally scheduled, Dowell was called away from his office and he told his secretary to notify Zielesch that he would be late. When Dowell returned, his secretary informed him that Zielesch could not attend the meeting that day because union representation was not available. When Dowell called Zielesch to reschedule the meeting he explained to her that the meeting was not disciplinary or investigatory, that she was in no trouble but if she wished the meeting could be scheduled for a time when a union representative would be available in case a problem arose.
The meeting was rescheduled for April 4, 1986. When Zielesch arrived accompanied by Powell, Dowell refused to allow Powell to enter his office. Dowell explained that it was not the type of meeting which would require union representation, but that Powell could wait outside to be available if Zielesch disagreed during the course of the meeting. Powell then told Dowell that under no circumstances would Zielesch talk with him without the benefit of union representation. Dowell responded that he would order Zielesch into his office if necessary.
At that point in time, Powell instructed Zielesch to wait outside of Dowell’s office and not to enter until she returned. Powell then went to the office of the union’s chapter chairperson, Chris Zimny. When Powell informed Zimny of the circumstances, Zimny told Powell that, if Zielesch got an order from the shift commander to talk without a union representative present, Powell should allow it. Powell then returned to Dowell’s office to rejoin Zielesch. When Dowell did not come out of his office, and since it was close to the start of their work shift, Powell and Zielesch informed Dowell’s secretary that they would be at the front desk of the police department if needed. Dowell attempted but was unable to obtain an order at that time from either Chief Carey or a shift commander, and the planned meeting did not take place.
On April 7, Dowell requested that Zimny report to his office along with a union representative. In response to questions from Dowell regarding her advice to Powell and Zielesch, Zimny stated that she told them that Zielesch was entitled to representation, but also that she had no authority to order Zielesch not to enter Dowell’s office. According to Dowell, however, Zimny admitted that her advice could have been construed as a directive that the meeting was not to take place without union representation. Zimny testified that she believed the purpose of the April 4 meeting was to coach Zielesch with respect to her testimony at the upcoming arbitration hearing.
On April 14, 1986, both Zimny and Powell received memorandums describing disciplinary actions against them. Zimny was suspended for two days and Powell for one day. Both suspensions were imposed for insubordination in refusing to permit Zielesch to meet with Dowell without union representation where Zielesch was not subject to disciplinary action.
In their decision and order, all three members of the commission agreed with the hearing referee that under the Supreme Court’s holding in National Labor Relations Bd v J Weingarten, Inc, 420 US 251; 95 S Ct 959; 43 L Ed 2d 171 (1975), Zielesch had no right to union representation at the April 4, 1986, meeting because the record did not indicate that Zielesch had any reasonable basis to believe that she might be disciplined as a result of that meeting. 420 US at 256. See also Wayne Westland Education Ass’n v Wayne-Westland Community Schools, 176 Mich App 361; 439 NW2d 372 (1989), lv den 433 Mich 910 (1989); Regents of the University of Michigan v Local 1583, AFSCME, 1977 MERC Lab Op 496 (adopting the Weingarten rule under the public employment relations act).
However, contrary to the recommendation of the hearing officer, the majority on the commission panel concluded that disciplining union officials Zimny and Powell for giving "good faith, but mistaken advice” to Zielesch regarding her right to union representation under Weingarten was a violation of section 10(l)(a) of the public employment relations act (pera), MCL 423.210(l)(a); MSA 17.455(10)(l)(a). We disagree. While § 10 (l)(a) prohibits public employers from interfering with public employees in the exercise of their rights under §9 of pera "to engage in lawful concerted activities for the purpose of . . . mutual aid and protection . . . ,” MCL 423.209; MSA 17.455(9), we do not find that the actions of Zimny and Powell which are at issue in this case were entitled to protection.
We cite with approval the following excerpt from the decision of the hearing officer, which was also found persuasive by the commission’s dissenting member:
Misconduct in the course of concerted activity, including insubordination, is not beyond an employer’s right to discipline. North Ottawa Community Hosp [1982 MERC Lab Op 555], supra; City of Detroit (Fire Dep’t), 1986 MERC Lab Op 14; Michigan State Univ, 1983 MERC Lab Op 419; see also NLRB v Burnup & Sims [,] Inc, 379 US 21 [85 S Ct 171; 13 L Ed 2d 1], 57 LRRM 2385 (1964). When Union representatives Howell [sic] and Zimny advised Zielesch not to cooperate with the Employer except under the circumstances they dictated they were subsequently disciplined for insubordination. A similar situation was considered by the nlrb in Manville Forest Products Corp [269 NLRB 72]; 115 LRRM 126[6] (1984). In that case a Union representative was disciplined for advising employees not to respond to employer questions in connection with an investigation of alleged misconduct in the plant. In response to the contention that the Employer could not lawfully suspend the union steward because of the advice he gave employees while acting in his official capacity, the nlrb stated:
"The Board has never held that a union official’s advice is entitled to such wide reaching protection. If, for example, a union steward interferes with management by advising employees to refuse to obey their superior’s orders, such conduct is unprotected ... it is within an employer’s legitimate prerogative to investigate misconduct in its plant and to do so without interference from any of its employees—including those who are union officials. Thus, if a steward interferes with such an inquiry by advising employees not to cooperate— advice which, if followed, could lawfully result in the employees themselves being disciplined—it defies logic to conclude that such advice is entitled to protection solely because of its source. When a union steward is disciplined for violating job rules and not because of his position as a union official, the steward cannot look to his union status for protection.” [115 LRRM at 1267.]
The dissenting member of the commission also correctly noted that the cases relied upon by the majority did not accurately support their position, stating:
MERC v Reeths-Puffer School Dist, 391 Mich 253; [215 NW2d 672] (1974), involved an employee’s attempt to file a grievance in good faith over a matter affecting him and which was a right claimed under a collective bargaining agreement. This is a classic example of what every employee is entitled to and arises from rights basic and fundamental to grieve. Likewise, in Dickinson County Sheriff and Board of Commissioners, 1982 MERC Lab Op 747, the union president in his urgings of unpaid volunteers not to accept county fair assignments which would reduce overtime pay for members of his unit, was fulfilling a time honored right to protect and preserve unit work covered by a labor agreement. And in 60th District Court, 1979 MERC Lab Op 558[,] and Brighton Area Schools Board of Education, 1982 MERC Lab Op 1607, the attempt of the employer to discipline employees for remarks made at union meetings were [sic] not only violative of basic union membership entitlements, but constituted an impressive intrusion of fundamental rights of free speech. These cases are not in tandem with the facts existing in this case. To find them supportive, it would have been necessary to conclude that Weingarten rights were involved (NLRB v Weingarten, Inc, 420 US 251). As my colleagues note, no Weingarten violation was committed here.
The union argues that the actions of Zimny and Powell concerning the April 4, 1986, meeting, should be excused because, although they were mistaken in their belief that Zielesch’s Weingarten rights were involved, they nevertheless acted in "good faith.” While we agree that an employee cannot be disciplined for "attempting in good faith to enforce a right claimed under a collective bargaining agreement,” Reeths-Puffer, supra at 265, there was absolutely no basis for Zimny or Powell to have reasonably believed that any such right was at risk here.
In the first place, we see no reason to excuse the actions of Zimny or Powell with regard to the April 4, 1986, meeting on the basis of a good faith mistake of fact. The record indicates that both of them were fully informed of the situation faced by Zielesch prior to advising her not to cooperate with Dowell without an express order from a shift commander. Since Zielesch herself could have had no reasonable basis on which to have feared discipline as a result of the April 4, 1986, meeting, neither Zimny nor Powell could have reasonably believed the situation to be otherwise.
Further, we see no reason to excuse their conduct based on a good faith mistake of law. In cases involving federal law, the federal courts have held union officials to a higher standard than the rank and file to uphold rights and duties under the collective bargaining agreement. NLRB v Armour-Dial, Inc, 638 F2d 51; 106 LRRM 2265 (CA 8, 1981); Gould, Inc v NLRB, 612 F2d 728; 103 LRRM 2207 (CA 3, 1979); Indiana & Michigan Electric Co v NLRB, 599 F2d 227; 101 LRRM 2475 (CA 7, 1979). The commission majority in this case was concerned that
[w]hether Weingarten applies to a situation is a complex question often debated by legal experts, as illustrated by this case. Its application, as set forth in the Administrative Law Judge’s decision, turns on the presence of several elements, most of which have been given additional elaboration and clarification by case law. Given this state of the law and their perception that Zielesch honestly feared discipline, Zimny and Powell, who are not legal experts, could reasonably have concluded that Zielesch was entitled to Weingarten rights.
However, we find that this stated concern misapprehends not only the holding of Weingarten, but the purpose behind that holding as well. The question is not whether Zielesch "honestly” feared discipline, but whether she "reasonably” feared discipline, and the entire commission found that she did not. See Weingarten, 420 US at 252, and Wayne-Westland Education Ass’n, supra.
Further, Weingarten did not make the decision whether to demand union representation at investigatory meetings more complicated for union officials or their members, it made it easier. As cited previously, § 9 of pera permits public employees "to engage in lawful concerted activities for the purpose of . . . mutual aid and protection . . . .” MCL 423.209; MSA 17.455(9). Section 9 is similar to § 7 of the National Labor Relations Act, 29 USC 157, under which Weingarten was decided. By implying a "reasonableness” standard not otherwise expressed in the statute, the Weingarten Court provided employees with a greater margin for error to demand representation at such meetings without fear of later disciplinary action by their employer should hindsight prove that their reasonable beliefs were in fact mistaken.
However, we reiterate that the commission in this case unanimously found that Zielesch did not have any reasonable basis on which to fear discipline as a result of the April 4, 1986, meeting. We find that conclusion to be supported by competent, material and substantial evidence in the record. Wayne-Westland Education Ass’n, supra at 364. However, we find it to be contradictory, and in error, for the majority of the commission to have concluded that the city committed an unfair labor practice for disciplining Zimny and Powell, where from the record there is no competent, material or substantial evidence that either of them had any greater reason to believe that Zielesch faced possible discipline at that meeting with Dowell than did Zielesch herself. Since no Weingarten rights were involved, the advice of Zimny and Powell to Zielesch not to cooperate with Dowell, except under conditions dictated by them, was not activity protected by § 9 of pera. Consequently, defendant’s subsequent disciplinary actions against them did not violate § 10(l)(a) of pera.
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] |
Griffin, J.
Today we are asked to revisit our recent decision in Safeco Ins Co v Economy Fire & Casualty Co, 182 Mich App 552; 452 NW2d 874 (1990). In doing so, we affirm its holding, but on the basis of documentation not presented to the Safeco panel, we reach the opposite result.
i
In Safeco, supra, we held that the defendant’s certificate of Michigan no-fault automobile insurance was not automatically revoked by defendant’s decision in 1983 to cease its underwriting of no-fault automobile insurance in Michigan. We stated that the relevant statutory provision, MCL 500.3163; MSA 24.13163, "makes no reference to or provision for automatic termination of certification in the event authorization to write auto insurance in Michigan is withdrawn.” Safeco, supra at 556.
Section 3163 in its entirety states the following:
(1) An insurer authorized to transact automobile liability insurance and personal and property protection insurance in this state shall file and maintain a written certification that any accidental bodily injury or property damage occurring in this state arising from the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle by an out-of-state resident who is insured under its automobile liability insurance policies, shall be subject to the personal and property protection insurance system set forth in this act.
(2) A nonadmitted insurer may voluntarily file the certification described in subsection (1).
(3) When a certification filed under subsections (1) or (2) applies to accidental bodily injury or property damage, the insurer and its insureds with respect to that injury or damage have the rights and immunities under this act for personal and property protection insureds, and claimants have the rights and benefits of personal and property protection insurance claimants, including the right to receive benefits from the electing insurer as if it were an insurer of personal and property insurance applicable to the accidental bodily injury or property damage.
As we noted in Safeco, supra, until its certificate of Michigan no-fault automobile insurance was withdrawn, defendant’s out-of-state auto insurance policies were more marketable because of their Michigan no-fault automobile coverages. On the basis of this benefit, we rejected defendant’s argument that its Michigan no-fault automobile certificate was impliedly withdrawn when it terminated its authorization to write automobile insurance in Michigan:
Thus, we see no reason to conclude that the Legislature intended an out-of-state insurer, such as defendant here, to have the unilateral option to either rely on or render void its properly filed and maintained no-fault certification depending on whether in a particular situation the provisions of the no-fault act work to its benefit or subject it to liability. [Safeco, supra at 557.]
Left unresolved in Safeco, supra, was the method for withdrawal of the Michigan no-fault automobile insurance certificate for companies who no longer do business in Michigan and who do not wish to afford their nonresident insureds with the benefits of Michigan no-fault insurance for accidents occurring within our state. The documentation furnished us on this issue was simply not presented to the Safeco panel. After considering such documentation, we reach a result different from, but not inconsistent with, Safeco. From such an exercise, we are again reminded that the quality of the justice we dispense is directly related to the quality of the advocacy.
ii
On October 16, 1988, Wisconsin residents Ann Marie Beerling and Eric J. Beerling were involved in a tragic automobile accident in Marquette County, Michigan, which resulted in the death of Ann Marie Beerling and serious personal injuries to Eric J. Beerling.
The Beerlings were insured with a policy of Wisconsin automobile insurance written by Economy Fire & Casualty Company. Mr. Beerling and Gert A. Cevigney, as personal representative of Ann Marie Beerling’s estate, filed a claim for Michigan no-fault automobile personal protection insurance benefits with Economy. After Economy refused to pay Michigan no-fault benefits, Cevigney and Beerling filed suit in the Marquette Cir cuit Court. Both parties thereafter filed motions for summary disposition under either MCR 2.116(C)(8) or MCR 2.116(0(10).
Marquette Circuit Judge Edward A. Quinnell, after reviewing numerous documents and correspondence, ruled that defendant’s certificate of Michigan no-fault automobile insurance was effectively revoked by operation of an amended certificate of authority issued by the Michigan Insurance Commissioner on July 19, 1983. Although we disagree, we nevertheless conclude that defendant’s Michigan no-fault automobile insurance certificate was withdrawn prior to the October 16, 1988, automobile accident and therefore affirm.
in
On October 1, 1973, defendant executed and filed with the Insurance Commissioner a Michigan no-fault automobile insurance certification form pursuant to § 3163. This no-fault insurance certificate, inter alia, granted defendant’s nonresident insureds Michigan no-fault automobile insurance coverage for automobile accidents occurring within the State of Michigan. Also on file at the Insurance Commissioner’s office was a certificate of authority issued by the commissioner to the defendant which authorized the defendant to write certain lines of insurance in Michigan.
The saga of defendant’s painstaking efforts to withdraw its insurance business from the State of Michigan commenced in 1983. In that year, defendant requested that its general certificate of authority to write insurance be amended to delete its previous authorization to write Michigan automobile insurance. The request was granted by the Insurance Commissioner on July 19, 1983, and a new certificate of authority was issued which au thorized defendant to write certain lines of insurance in Michigan excluding automobile and workers’ compensation. Defendant did not request in 1983 that its certificate of no-fault insurance be withdrawn.
In December, 1985, defendant decided to discontinue writing all lines of insurance within the State of Michigan. Pursuant to a December 12, 1985, letter entitled "withdrawal of forms,” defendant’s president notified the Insurance Commissioner that defendant "hereby withdraws from filing for approved use with the insurance bureau any and all insurance policy forms, riders, applications, endorsements, or certificates, effective for all new business beginning January 1, 1986, and for all renewals of in force policies beginning March 1, 1986. ”
The Insurance Bureau thereafter in letters dated December 15, 1987, and December 29, 1987, resisted the withdrawal of defendant’s Michigan no-fault automobile insurance certificate. However, the later letter acknowledged: "there are no forms necessary to process decertification. All that is required is a written request.”
On July 17, 1989, the special deputy insurance commissioner finally honored defendant’s withdrawal of its no-fault certificate:
July 17, 1989
Mr. R. E. Ostgulen
Secretary/Operations
Underwriting Manger
The Economy Companies
500 Economy Court
Freeport, Illinois 61032
Re: Economy Fire & Casualty Insurance Company
Michigan Certification Form
Section 3163 Certification Pursuant to the Michigan No-Fault Law
Dear Mr. Ostgulen:
This letter is in regard to the withdrawal of Economy Fire & Casualty Insurance Company’s Section 3163 No-Fault Certification form.
Your request to have this certification form withdrawn has been honored. The effective date of this withdrawal is September 1, 1989. We cannot return the original certification back to you, as there may be injured parties who need evidence that a certification was in place prior to the withdrawal effective date. However, we have enclosed a copy of the original certification.
We do feel that this withdrawal places your policyholders at a disadvantage when traveling in Michigan and would appreciate an effort on your part to advise them of the potential lawsuits they may encounter without the right to sue a properly insured Michigan driver.
Sincerely,
Ronald C. Hempsted
Special Deputy Commissioner
Enclosure
IV
The dispute in the instant case centers on whether defendant’s no-fault certificate filed pursuant to § 3163 was still valid at the time of the Beerlings’ October 16, 1988, automobile accident. If it was, defendant is obligated to pay plaintiffs’ Michigan no-fault benefits. If not, defendant does not have to pay these benefits, but must pay only whatever insurance benefits are required by its policy. See § 3163.
On the basis of the documentary evidence presented to the trial judge in this matter, we agree that reasonable minds could not differ and that, at the time of the Beerlings’ accident, defendant’s Michigan no-fault certificate had been withdrawn. On December 12, 1985, defendant’s president by letter to the Insurance Commissioner specifically revoked all insurance certificates. The certification pursuant to § 3163 clearly falls within this definition. As noted, by the December 15, 1987, and December 29, 1987, letters to defendant from the Insurance Bureau, for decertification "all that is required is a written request.” Thus, we hold that defendant effectively withdrew its § 3163 no-fault certification form on December 12, 1985, and is therefore not liable to plaintiffs for the Michigan no-fault automobile insurance claimed.
The Insurance Commissioner inexplicably placed an effective date of September 1, 1989, on defendant’s withdrawal of its no-fault certificate. The Insurance Commissioner is empowered to promulgate rules and regulations as he deems necessary to effectuate the purposes and to execute and enforce the provisions of the insurance laws of this state. MCL 500.210; MSA 24.1210; DAIIE V Comm’r of Ins, 119 Mich App 113, 117; 326 NW2d 444 (1982), lv den 417 Mich 1077 (1983). When an agency is empowered to make rules, a three-part test is used to determine the validity of the rules it promulgates. Nolan v Dep’t of Licensing & Regulation, 151 Mich App 641, 647; 391 NW2d 424 (1986); Luttrell v Dep’t of Corrections, 421 Mich 93, 100; 365 NW2d 74 (1984), reh den 422 Mich 1201 (1985). The rules must be within the matter covered by the enabling statute, they must comply with the underlying legislative intent, and they must not be arbitrary and capricious. Nolan, supra; Luttrell, supra.
In the instant case, the Insurance Commissioner promulgated a rule that, for an insurance company to withdraw its § 3163 no-fault certification, all that is required is a written request. It necessarily follows that the withdrawal of the no-fault certificate must be promptly honored after such a request. We find the commissioner’s failure to do so for almost four years to be most arbitrary and capricious.
Affirmed. | [
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Per Curiam.
Defendant Harper Hospital appeals as of right from the trial court’s denials of its motions for summary disposition, for judgment notwithstanding the verdict, and for a new trial, and from the court’s entry of judgment from the jury verdict for plaintiff. Harper contends that the trial court erred in denying its several motions on the ground that its student perfusionist, who was on loan to defendant Henry Ford Hospital, was not a loaned servant. In addition, Harper claims that plaintiff’s failure to introduce any standard of care testimony required a directed verdict in its favor and that the trial court erred in admitting at trial an expired contract between Harper and Henry Ford Hospital. We reverse.
On August 1, 1986, plaintiff’s decedent, Narendra Parekh, underwent coronary artery bypass surgery at Henry Ford. At that time, Helen Crowe, a student at Harper Hospital’s School of Perfusion Technology, had completed six months of classes and was in her first clinical rotation at Henry Ford. She was under the supervision of two clinical instructors, Michael Fried and Sandy Klar, who were both Henry Ford employees. On the day of Parekh’s surgery, as Crowe set up the equip ment, she advised Klar about a problem with the vent tubing line. When the patient went on the heart-lung machine, the machine pumped air into his blood vessels instead of creating, a vacuum to remove the blood from the vessels. Brain damage occurred as a result of the air infusion, and the patient remained unconscious after surgery. Parekh was transferred to Wisconsin for treatment in a hyperbaric chamber, but he died on August 5, 1986.
In his first amended complaint, plaintiff alleged that Harper was liable because of Crowe’s negligence in incorrectly attaching the tubing of the heart-lung machine. Harper moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) and argued that, because Michigan does not recognize a claim against an educational institution for injurious actions by its students, plaintiff had failed to state a claim upon which relief could be granted. Harper also argued that there was no genuine issue of material fact as to whether, under the borrowed servant rule, Henry Ford had exclusive control over Crowe and, thus, Harper was not liable as Crowe’s employer. The trial court denied Harper’s motion under MCR 2.116(C)(8), finding that plaintiffs complaint had stated a claim on which relief could be granted. The trial court also concluded that plaintiff had created a genuine issue of fact as to whether Harper relinquished all of its right to control Crowe’s actions during her rotation at Henry Ford and denied Harper’s motion under MCR 2.116(C)(8).
At trial, after the close of plaintiffs proofs, Harper moved for a directed verdict on the ground that Crowe was a loaned servant. The trial court denied the motion, concluding that whether Crowe was acting under Harper’s control was a question of fact for the jury.
Harper contends that the trial court erred in denying its motion for summary disposition under MCR 2.116(C)(10) and in denying its motion for a directed verdict. We agree.
Summary disposition of all or part of a claim or defense pursuant to MCR 2.116(0(10) may be granted when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim, and the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Dumas v Auto Club Ins Ass’n, 168 Mich App 619, 626; 425 NW2d 480 (1988). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Id.
In deciding whether to grant a motion for a directed verdict brought under MCR 2.515, the trial court must view the evidence in a light most favorable to the opposing party and determine whether that party has established a prima facie case. Reeves v Cincinnati, Inc, 176 Mich App 181, 183; 439 NW2d 326 (1989); Clery v Sherwood, 151 Mich App 55, 63-64; 390 NW2d 682 (1986). A directed verdict is precluded where the evidence presents material issues of fact upon which reasonable minds can differ; those issues are to be decided by the trier of fact. Reeves, supra; Dixon v W W Grainger, Inc, 168 Mich App 107, 110; 423 NW2d 580 (1987). The trial court properly grants a directed verdict for the defendant only when the evidence, viewed in this manner, does not establish a prima facie case. Reeves, supra at 183-184; Goldman v Phantom Freight, Inc, 162 Mich App 472, 477; 413 NW2d 433 (1987), lv den 429 Mich 867 (1987).
In Janik v Ford Motor Co, 180 Mich 557, 562; 147 NW 510 (1914), quoting 26 Cyclopedia of Law & Procedure, p 1522, our Supreme Court explained the test to use in determining whether a person, to whom an employer has loaned its employee, has become liable as an employer for the employee’s acts, without any actual employment contract or payment for service:
"A person who avails himself of the use, temporarily, of the services of a servant regularly employed by another person may be liable as master for the acts of such servant during the temporary service. The test is whether in the particular service which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services. It is not so much the actual exercise of control which is regarded, as the right to exercise such control. To escape liability the original master must resign full control of the servant for the time being, it not being sufficient that the servant is partially under control of a third person. Subject to these rules the original master is not liable for injuries resulting from acts of the servant while under the control of a third person.”
See also Noble v Roadway Express, Inc, 153 Mich App 12, 18-19; 394 NW2d 128 (1986), lv den 428 Mich 885 (1987). In applying this test, we look at the work the employee was performing when the injury for which suit has been brought was sustained. See Sweetnam v Snow, 187 Mich 414, 422; 153 NW 770 (1915).
When Parekh suffered his fatal injury, Harper had relinquished its right to control Crowe. Crowe was under the supervision of Fried and Klar, Henry Ford employees. She was using Henry Ford’s machines and equipment. See Janik, supra at 563. Crowe had been instructed, before she began her rotation, to conduct herself according to Henry Ford’s, not Harper’s, protocols. No other Harper employees were present, and even if others had been present they would not have been allowed to go into Henry Ford’s operating room and give instructions to a student on rotation.
In denying Harper’s summary disposition motion under MCR 2.116(C)(10), the trial court considered a renewable Statement of Relationships, effective from January 1, 1983, through January 1, 1984, which stated Harper’s and Henry Ford’s agreement regarding student perfusionists’ rotations. The court concluded:
In the case at bar, the facts proferred [sic] by Harper in support of its motion do suggest that Ford exerted actual control over Crowe in the day to day activities. However, as indicated by the test, such actual control is not determinative. Rather, equally important is whether Harper surrendered all right to control Crowe. Certain portions of the Statement can be construed as reflecting that Harper did not surrender all control. Specifically, the Court notes that under the Statement, Harper assumed responsibility for not only instructing its students in Ford’s protocals [sic] but also for monitoring for and enforcing compliance with Ford’s protocal [sic]. Moreover, there is the express agreement in the Statement that Crowe would be regarded as the employee of Harper.
We are not persuaded that Harper’s instruction of a student in Henry Ford’s protocol before the rotation began deprived Henry Ford of its right to control the student during rotation. Harper’s re sponsibility for monitoring and enforcing the student’s compliance with Henry Ford’s protocol was accomplished only through Henry Ford’s own actions in monitoring the students. In addition, the statement in the agreement that Crowe was to be regarded as Harper’s employee appears to have been for the purpose of limiting a student’s entitlement to the benefits and other rights to which Henry Ford’s own employees were entitled. Moreover, Crowe’s status as Harper’s employee was inherent in her status as a loaned servant.
Henry Ford also argues that the fact that Harper continued to pay Crowe a stipend during her rotation at Henry Ford indicated Harper’s retention of control over her. The Court in Janik, supra at 562, recognized that the borrower of another’s employee may become liable as an employer without any actual payment for service. In addition, this is not a workers’ compensation case, in which the economic reality test for determining whether the loaned servant doctrine is applicable is used. See Nichol v Billot, 406 Mich 284, 294; 279 NW2d 761 (1979). It is under that test that who pays the employee becomes significant. Id.
The evidence relevant to Henry Ford’s control, and Harper’s lack of control, over Crowe simply did not present a material issue of fact upon which reasonable minds could differ. See Reeves, supra at 183. The trial court erred in denying Harper’s motions for summary disposition and for a directed verdict.
In view of our decision on this issue, we need not address the other issues raised on appeal by Harper.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
According to trial testimony, a perfusionist is responsible for setting up and monitoring equipment used in heart bypass procedures. Part of the equipment is used to move blood from the patient to the heart-lung machine, which oxygenates the blood, and to return it to the patient. | [
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Per Curiam.
On May 17, 1988, following a bench trial, defendant was found guilty of carrying a concealed weapon in a motor vehicle. MCL 750.227; MSA 28.424. On June 13, 1988, the trial court ordered sentencing delayed under MCL 771.1(2); MSA 28.1131(2), and rescheduled it for June 13, 1989. For unexplained reasons, the sentencing hearing was not held until June 15, 1989, at which time the court found that defendant had fulfilled the conditions of his delayed sentence and granted defendant’s motion to dismiss the case. The prosecution appeals as of right, arguing that the trial court was without authority to dismiss defendant’s conviction since the court lost jurisdiction over the case by acting more than one year after imposition of its order delaying sentence. We reverse.
Defendant asserts that the prosecutor, who apparently was not present at the June 15 hearing, has waived this issue by failing to object below. However, jurisdictional defects may be raised at any time. People v Price, 126 Mich App 647, 655; 337 NW2d 614 (1983).
Pursuant to MCL 771.1(2); MSA 28.1131(2), sentencing may be delayed for up to one year. Beyond that, the trial court loses jurisdiction to sentence the defendant, unless good cause is shown for the delay. People v Dubis, 158 Mich App 504, 506; 405 NW2d 181 (1987). We emphasize, however, that an unexcused violation of the one-year limit contained in the delayed sentencing statute affects only the court’s authority to sentence the defendant, nothing more. People v Turner, 92 Mich App 485, 489-490; 285 NW2d 340 (1979).
Since no good cause is apparent in this case for the delay beyond the one-year statutory limit, the court did lose jurisdiction to sentence defendant. However, the prosecution’s concern in this appeal is with the court’s dismissal of defendant’s conviction, not with the court’s failure to sentence defendant further. In any event, we note that the trial court’s power to dismiss or expunge a properly obtained criminal conviction is specifically set forth in MCL 780.621; MSA 28.1274 (101). People v Augustus Jones, 94 Mich App 516, 517; 288 NW2d 411 (1979). The statute sets forth a very detailed set of prerequisites and specific procedural steps, none of which were adhered to in this case.
Consequently, we reverse and vacate the trial court’s order of dismissal. Defendant’s conviction is, therefore, reinstated. | [
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Per Curiam.
This is an action for no-fault personal injury protection benefits. Plaintiff appeals as of right from a grant of partial summary disposition to defendant, holding plaintiff’s claim is barred by the "one-year-back” limitation period of MCL 500.3145(1); MSA 24.13145(1). The trial court found that the limitation prevented recovery for wage loss and medical expenses incurred before April 8, 1987.
Defendant moved for summary disposition under MCR 2.116(C)(7) and (10). Being that a statute of limitations issue was raised, we have reviewed the motion under MCR 2.116(C)(7) and MCR 2.116(G) (3)(a).
Plaintiff admitted that defendant gave him notice in 1986 that it was denying him further work-loss benefits. Therefore, we find no error in the trial court’s ruling that the one-year-back limitation barred plaintiff’s claim for work-loss benefits. MCR 2.116(I)(1). In reaching this conclusion, we reject plaintiff’s assertion that defendant was obliged to deny benefits in writing. What is required is a formal denial of liability, not a writing. Lewis v DAIIE, 426 Mich 93; 393 NW2d 167 (1986). Although the best formal notice is a writing, notice may be sufficiently direct to qualify as formal without being put in writing.
As for medical benefits, we vacate the trial court’s decision and remand for further proceedings under MCR 2.116(I)(3). We are not persuaded that the lower court record failed to demonstrate a genuine issue of material fact concerning whether the limitation period was tolled. It is not clear either whether plaintiff exercised the requisite due diligence in taking advantage of the tolling. Although he admitted at deposition that he was told in 1986 that benefits were being terminated, one could reasonably infer that the admission applied only to wage-loss benefits. Summary disposition is not appropriate if the facts can support conflicting inferences even when there is no material factual dispute. DiFranco v Pickard, 427 Mich 32, 54; 398 NW2d 896 (1986); Lewis, supra; MCR 2.116(I)(1).
On remand, the trial court should consider whether the one-year-back limitation period is tolled for medical expenses plaintiff incurred as a result of the accident, applying the test in Johnson v State Farm Mutual Automobile Ins Co, 183 Mich App 752; 455 NW2d 420 (1990). The requirement in Johnson that the insured give notice of a loss should not be construed too broadly. The notice must be specific enough to inform the insurer of the nature of the loss. It must give sufficient information that the insurer knows or has reason to know that there has been a compensable loss.
Affirmed in part, vacated in part, and remanded for further proceedings. This Court does not retain jurisdiction. | [
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Wahls, J.
In each of these consolidated cases, the trial court denied a defense motion to compel more specific answers to interrogatories and then assessed costs, payable to the circuit court clerk, in an amount determined only by the number of interrogatories for which the motion to compel was denied. Defendants appeal by leave granted. We hold that the trial courts in these cases abused their discretion when they denied defendants’ motions to compel more specific answers to interrogatories. We also hold that it was an abuse of discretion for the trial courts to assess costs in an amount determined only by the number of interrogatories involved. Last, we hold that the trial courts did not have authority to order defendants to pay those costs to the circuit court clerks. Therefore, we reverse.
i
A
In Docket No. 110843, plaintiff James Sucoe filed a medical malpractice action on April 1, 1986, against defendants Oakwood Hospital Corporation and Jerry Drake, M.D. Defendants served interrogatories on plaintiff on February 9, 1988. Plaintiffs answers included numerous objections to the propriety of the interrogatories. When the trial court warned the parties that it would assess costs of $100 per interrogatory against the losing party on each interrogatory, defendant decided to pursue its motion on only three interrogatories. Defendants filed a motion to compel more specific answers to those interrogatories on March 16, 1988. Defendants appeal by leave granted from an April 22, 1988, Wayne Circuit Court order denying defendants’ motion on all three interrogatories and assessing costs of $300.
B
In Docket No. 113973, plaintiff Tommy Thomas filed suit on November 20, 1987, to recover no-fault insurance benefits from defendant Citizens Insurance Company of America. Plaintiff filed his witness list on June 6, 1988. Three weeks later, on June 29, 1988, defendant served interrogatories on plaintiff. Defendant considered plaintiff’s answers to be evasive and inadequate, and filed a motion to compel more specific answers to interrogatories on September 28, 1988. When the trial court warned the parties that it would assess costs of $100 per interrogatory against the losing party on each interrogatory, defendant decided to pursue its motion on only eleven interrogatories. Defendant appeals by leave granted from a December 1, 1988, Ingham Circuit Court order denying defendant’s motion on nine interrogatories and assessing costs of $900.
ii
A
In Docket No. 110843, the three interrogatories requested plaintiff to (1) state the date each expert was first contacted regarding the case and who contacted the expert, (2) state whether the expert had authored a written report and the date of the report, and (3) state whether the expert had generated any other written documents "and, if so, identify what has been created.” To each interrogatory, plaintiff objected that "it does not come within the purview and ambit of MCR 2.302(4)(A) [sic].” To the third interrogatory, plaintiff additionally objected that "it would violate the attorney work product, in that the attorney may have written certain notes after conference with his experts.” The trial court agreed and denied defendants’ motion.
The decision On a motion to compel discovery is within the trial court’s discretion and will not be reversed on appeal unless the trial court has abused its discretion. Marchand v Henry Ford Hosp, 398 Mich 163, 169-170; 247 NW2d 280 (1976); Eyde v Eyde, 172 Mich App 49; 431 NW2d 459 (1988), lv den 432 Mich 857 (1989). This Court in Eyde, supra, p 54, discussed the considerations which the trial court should have in mind when exercising its discretion:
Michigan has a strong historical commitment to a far-reaching, open and effective discovery practice. Daniels v Allen Industries, Inc, 391 Mich 398, 403; 216 NW2d 762 (1974). Discovery rules are to be liberally construed in order to further the ends of justice. Id. The modern tendency is to broaden the scope of discovery when necessary to facilitate preparation, to guard against surprise, and to expedite justice. Fassihi v St Mary Hospital of Livonia, 121 Mich App 11, 15; 328 NW2d 132 (1982).
The general rules governing discovery, MCR 2.302, prescribe a very broad, general scope of discovery and address specific instances when a party may not raise otherwise significant objections to discovery.
As previously stated, the dispute in this case concerns MCR 2.302(B)(4), which provides in part:
Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subrule (B)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(a)(i) A party may through interrogatories require another party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter about which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(b) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in MCR 2.311(B) or on a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Since a court-ordered physical examination on defendants’ motion is not involved in this case, MCR 2.311(B) is not applicable.
Plaintiff’s objection to defendants’ interrogatories is apparently based in part on the fact that the specific information requested is not expressly discoverable under MCR 2.302(B)(4). Plaintiff also argues that under MCR 2.302(B)(4)(b) defendants are not entitled to discover any information regarding experts who are not expected to testify unless defendants show exceptional circumstances. In support of this argument, plaintiff quotes the following from Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.302, comment 8g, p 182:
The provisions of subrule 2.302(B)(4) restrict discovery of facts known and opinions held by experts acquired or developed in anticipation of litigation or in preparation for trial to only the situations and methods provided for by that sub-rule. As to this one particular class of persons, experts, the rule is a direct restriction on the scope of discovery permitted by 2.302(B)(1). Thus, experts who have been informally consulted in preparation for trial, but not specifically retained or employed, are not subject to discovery. One party may not force another party to divulge either their identity or the facts and opinions relayed by those experts. [Emphasis in original.]
The last sentence is at issue in this case. Specifically, plaintiff claims that he is not required to reveal the identity of experts who are not expected to testify. We disagree.
Our review of Martin, Dean & Webster’s analysis of MCR 2.302 indicates that the quoted passage was referring to discovery of information regarding experts other than those covered by MCR 2.302(B)(4)(a) and (b). Moreover, we believe that the last sentence of the quoted passage is wrong. The restrictive language of the introductory paragraph of MCR 2.302(B)(4) refers only to the discovery of "facts known or opinions held by experts,” and does not refer to the identity of experts. Likewise, MCR 2.302(B)(4)(b) does not refer to the identity of experts not expected to testify. Thus, the discovery of the identity of experts not expected to testify is not restricted by MCR 2.302(B) (4).
Ideally, Michigan’s discovery rules are intended to provide for far-reaching, open and effective discovery between the parties without resort to the trial court’s authority to compel discovery. See Eyde, supra. Compare MCR 2.302(A)(1) (discovery by parties) with MCR 2.313(A)(5) (presumptively mandatory sanctions). As previously indicated, MCR 2.302(B)(2)-(4) were intended to address specific instances in which otherwise significant objections to discovery might be raised. See Roe v Cherry-Burrell Corp, 28 Mich App 42, 45; 184 NW2d 350 (1970) (plaintiffs claims of privilege rendered moot by discovery rules). In those specific instances, disputes regarding discovery are resolved between the parties by reference to the court rules rather than by resort to the trial court. In other words, subrules (B)(2)-(4) are intended to facilitate the ideal of far-reaching, open and effective discovery between the parties. It would be contradictory to construe them to impliedly prohibit discovery of related information not expressly provided for in those rules. Consistent with the broad scope of Michigan’s discovery rules in general, Eyde, supra, we conclude that discovery of information not expressly provided or restricted by the specific rule, MCR 2.302(B)(4), is governed by the general rule, MCR 2.302(B)(1).
As stated above, plaintiff also objected to one of the interrogatories on the basis of attorney work product privilege. Consistent with that objection, plaintiff argues on appeal that the contents of any reports or notes generated by his experts are work product and are not discoverable by defendant unless defendant shows that he "has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means,” MCR 2.302(B)(3)(a). However, defendants’ interrogatories did not request disclosure of the contents of the documents themselves but only whether any documents existed. Again, we conclude that the issue is governed by MCR 2.302(B)(1).
MCR 2.302(B)(1) provides in part:
Parties may obtain discovery regarding any matter, not privileged, which is relevant. . . including the existence, description, nature, custody, condition, and location of books, documents, or other tangible things and the identity and location of persons having knowledge of a discoverable matter.
(a) It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Plaintiff has not cited any authority holding that the identity of an expert, the date an expert was contacted and who contacted the expert, or the existence and nature of documents generated by the expert is privileged. Plaintiff does not claim that the information sought is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff also does not claim that the experts do not have knowledge of a discoverable matter. Therefore, we conclude that MCR 2.302(B) (1) required plaintiff to provide the information sought by defendants in the three interrogatories and that the trial court abused its discretion when it denied defendants’ motion to compel more specific answers to those interrogatories.
B
In Docket No. 113973, defendant challenges the trial court’s ruling on only four of the nine interrogatories for which the trial court denied defendant’s motion to compel more specific answers. The four interrogatories requested plaintiff to provide the substance of the testimony plaintiff expected to obtain from expert witnesses named on plaintiff’s witness list. Plaintiff argued in the trial court that he should not be compelled to give more specific answers to those interrogatories because plaintiff had limited contact with the witnesses and had provided defendant with medical records from which defendant could obtain the information. The trial court agreed and denied defendant’s motion.
On appeal, defendant argues that the opinions of plaintiffs experts are discoverable under MCR 2.302(B)(4)(a)(i), and that the discovery rules do not require defendant "to proceed with one means of discovery to the exclusion of any other.” According to defendant, plaintiff’s failure to narrow his trial witness list to those whom he is likely to call at trial "essentially eviscerates the purpose of filing a witness list, and forces defendant to conduct unnecessary discovery.” Finally, defendant argues that the trial court’s ruling improperly deprives it of the experts’ sworn opinions.
Plaintiff addresses defendant’s arguments on appeal only briefly, claiming that he "responded to the interrogatories as best he could, having not interviewed many of the specific medical personnel involved.” The remainder of plaintiffs argument concerns the trial court’s rulings on the five interrogatories that defendant does not challenge on appeal.
We conclude that the trial court abused its discretion when it denied defendant’s motion to compel more specific answers to the four interrogatories. The medical records did not provide the opinions of the listed expert witnesses. Plaintiff’s alleged failure to interview his witnesses to obtain their opinions is not a proper basis upon which to deny discovery of those opinions under MCR 2.302(B)(4)(a)(i). That rule, which states that "[a] party may through interrogatories require another party ... to state the substance of the facts and opinions to which the expert is expected to testify,” implicitly required plaintiff to interview those witnesses to obtain their opinions.
hi
Defendants in both cases challenge the trial courts’ orders assessing costs. Since defendant in Docket No. 113973 challenges the trial court’s assessment of $900 on the nine interrogatories for which the motion to compel was denied, and not just on the four interrogatories challenged on appeal, we are obliged to resolve this issue.
The power to tax costs is not an inherent power of the trial court, but is only available when provided by statute or court rule. Baumgardner v Balmer, 157 Mich App 159, 160; 403 NW2d 525 (1987). In these cases, the applicable court rule, MCR 2.313(A)(5)(b), provides that if a motion to compel discovery is denied
the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion, or both, to pay to the person who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
MCR 2.313(A)(5)(c) provides for apportioning the expenses among the parties when the motion is denied in part and granted in part.
It is immediately apparent from the language of the rule that it contemplates that the award of reasonable expenses and attorney fees will be a liquidated amount which accurately reflects the reasonable time and effort involved in a particular motion, and that the amount will be determined following a hearing. Thus, a determination in advance of the ruling on the motion that $100 per interrogatory will be assessed against the losing party is an abuse of discretion.
It is equally apparent that MCR 2.313(A)(5)(b) provides for payment only to the party who opposed the motion, not to the trial court. Thus, the trial court had no authority to order defendants to pay costs to the court. See Baumgardner, supra, p 160.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Sawyer, P.J.
This consolidated appeal, which involves separate and unrelated causes of action, though presented to the same trial court, concerns the proper interpretation of the dramshop act. MCL 436.22; MSA 18.993. In both cases, the trial court granted summary disposition in favor of the dramshop defendants, concluding that the provisions of MCL 436.22(10); MSA 18.993(10) precluded the plaintiffs from maintaining their actions. Plaintiffs’ appeals were consolidated by order of this Court in light of the common issue presented. We reverse.
In LaGuire, plaintiffs’ decedent, then age seven teen, purchased alcoholic beverages at the Copa Nite Club while celebrating with friends on the evening of December 6, 1986. Mihailuk apparently used an altered driver’s license in order to procure the purchase of the alcoholic beverages, though plaintiffs contend that the alteration was so obvious that defendant’s employees should have realized that the license was fraudulent. After leaving the bar in the early morning hours of December 7, Mihailuk drove his car across the center line, colliding head-on with a vehicle driven by Lisa Lord. The accident killed Mihailuk and injured Lord. Lord thereafter brought an action against plaintiffs and defendants and plaintiffs cross-claimed against defendants. Lord is no longer a party to this litigation.
In Falker, plaintiff, then age nineteen, purchased alcoholic beverages from Hanibal’s Market on March 7, 1987. Plaintiff contends that he was never requested to furnish identification at the time of the sale. While driving during the early morning hours of March 8, after consuming the alcohol, plaintiff was involved in a single-vehicle accident. As a result of the accident, which plaintiff attributes to his intoxicated condition, plaintiff suffered serious injuries, including the amputation of both legs.
This appeal presents the questions (1) whether a minor who was illegally served alcohol may maintain an action under the dramshop act, (2) whether the parents of a minor who was illegally served alcohol may maintain an action under the dramshop act, and (3) whether the retail liquor licensee may pursue its right to indemnification under the dramshop act against a minor who was illegally served alcohol.
Turning to the first question raised, whether a minor who was illegally served alcohol may maintain an action under the dramshop act, we must analyze this issue in light of the 1986 amendment to the dramshop act. See 1986 PA 176. Prior to the 1986 amendment, plaintiffs’ actions against the dramshops clearly would have been barred. See Craig v Larson, 432 Mich 346; 439 NW2d 899 (1989).
In Craig, which involved an accident which occurred prior to the enactment of the 1986 amendment, the Court noted that the pre-1986 language of the dramshop act contained in MCL 436.22(5); MSA 18.993(5) precluded an intoxicated person who injures himself from recovering damages from the dramshop. The 1986 amendment changed the wording of this provision, but the current version, which is now found in MCL 436.22(4); MSA 18.993(4), is substantially similar to its predecessor provision. The Supreme Court has commented that the 1986 amendment has not changed the effect of this statutory language of barring recovery by the intoxicated person. Craig, supra at 354, n 8. The Supreme Court further concluded that this bar to recovery also applies to minors. Id. at 359, n 18. A similar conclusion was reached by this Court in Rosas v Damore, 171 Mich App 563; 430 NW2d 783 (1988), and the recent decision in Saavedra v Ghannan, 183 Mich App 234, 236; 454 NW2d 134 (1989).
Despite these prior opinions, we conclude that the proper interpretation of the dramshop act, as constituted in the 1986 amendment, provides that illegally served minors may maintain an action against the dramshop. While, as the Supreme Court noted in Craig, supra, the statutory provisions of the dramshop act which are now found in subsection (4) have been interpreted as providing that the illegally served minor or visibly intoxicated person may not maintain an action against the dramshop, that rule was codified by the Legislature in subsection (10) of the dramshop act. Specifically, MCL 436.22(10); MSA 18.993(10), which was added by the 1986 amendment, provides:
The alleged visibly intoxicated person shall not have a cause of action pursuant to this section nor shall any person have a cause of action pursuant to this section for the loss of financial support, services, gifts, parental training, guidance, love, society, or companionship of the alleged visibly intoxicated person.
While it is the provisions of the former subsection (5), now subsection (4), which provide the source of the rule that the illegally served minor or visibly intoxicated person may not maintain an action against the dramshop, the fact that the Legislature has now codified that rule into subsection (10) requires that we look solely at subsection (10) to determine the scope of that rule. The reason for this conclusion lies in one of the basic rules of statutory construction: none of the language of a statute should be treated as surplusage or rendered nugatory; rather, the statute should be read so that all provisions in the statute are given meaning. Niggeling v Dep’t of Transportation, 183 Mich App 770; 455 NW2d 415 (1990). Thus, if we look to the current subsection (4) in search of the rule that the imbiber himself may not pursue an action against the dramshop, sub section (10) becomes mere surplusage. Thus, consistent with the principles of statutory construction, subsection (10) must be viewed as the sole provision which relates to the bar of the intoxicated person himself from maintaining an action against the dramshop lest we render subsection (10) meaningless.
Turning to subsection (10), it is critical to note that it only precludes recovery by an "alleged visibly intoxicated person” or persons having a derivative claim arising out of the injury or death of the alleged visibly intoxicated person. Nowhere in subsection (10) is any reference made to an illegally served minor being barred from recovery. A review of the entire section, however, reveals that the Legislature has carefully crafted two separate categories: "minors” and "visibly intoxicated persons.” In fact, the phrase "minor or visibly intoxicated person,” or some variation thereof, is used at least five times in subsections (4), (6), (8), and (9). Additionally, in subsection (3), the act separately prohibits providing alcohol to a minor and providing alcohol to a visibly intoxicated person. However, subsection (10), along with subsection (7), only refers to visibly intoxicated persons.
Thus, in the dramshop act, the Legislature specifically defined two separate categories of persons to whom liquor licensees could not furnish alcoholic beverages: "minors” and "visibly intoxicated persons.” Having created those two categories, the Legislature then used both terms in disjunctive phrases several times in order to ensure that both categories were included in the statutory provisions. However, in two places, subsections (7) and (10), the Legislature refers only to "visibly intoxicated persons.” We must conclude that the single reference to visibly intoxicated persons in subsec tion (10) reflects an intent by the Legislature to specifically exclude minors from the provisions of that subsection.
This conclusion is compelled by two rules of statutory construction. First, the rule discussed above, that all words within a statute must be given meaning, requires that we distinguish between minors and visibly intoxicated persons since the failure to do so would again render meaningless the Legislature’s various references to minors. Second, it is a well-known rule of statutory construction that the express mention in a statute of one thing implies the exclusion of other things (iexpressio unius est exclusio alterius). See People v Wurm, 158 Mich App 265, 272; 404 NW2d 235 (1987), citing Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). That is, the Legislature, having created categories of two similar things (persons to whom it is illegal to furnish alcoholic beverages), expressly mentioned one such category, visibly intoxicated persons, in subsection (10), but did not mention the other category, minors. Accordingly, we must conclude that the omission of the reference to minors in subsection (10) was intentional and minors are, therefore, excluded from the provisions of subsection (10).
Having concluded that subsection (10) controls the determination of who is precluded from maintaining an action against a dramshop and that illegally served minors do not come within the provisions of subsection (10), it necessarily follows that an illegally served minor may, therefore, maintain an action against the dramshop which served him prior to an accident in which the minor suffered injury. As for this Court’s decision in Rosas, supra, we note that that decision is somewhat anomalous in that it involved an accident which occurred prior to the enactment of the 1986 amendment to the dramshop act, yet specifically quoted and relied upon the amended version of the dramshop act in reaching its decisions as well as a prior decision of this Court rendered before the 1986 amendment. Accordingly, we find the Rosas decision to be unpersuasive.
As for the Saavedra decision, supra, the opinion does not reflect when the cause of action arose, but that decision relied upon Craig, supra, and Rosas, supra, which were both decided under the pre-1986 version of the dramshop act. Saavedra did not analyze the effect of the 1986 amendment and, therefore, we place little reliance on the Saavedra decision.
Finally, there is the Supreme Court’s decision in Craig, supra. It cannot be disputed that the Supreme Court’s opinion explicitly states that subsection (4) of the dramshop act, as amended by the 1986 act, makes "explicit the Legislature’s intent to preclude underage imbibers from recovering damages for their own injuries.” Craig, supra at 359, n 18.
However, as discussed above, the rules of statutory construction preclude looking to subsection (4) of the statute in search of the rule of who is precluded from maintaining an action against the dramshop. Rather, as discussed above, subsection (10) now controls that determination since the 1986 amendment. Accordingly, we must respectfully submit that the Craig Court’s comment in footnote 18 as to the effect of subsection (4) under the 1986 amendment is incorrect.
We are cognizant of the fact that, while this Court may express its opinion that the Supreme Court was wrong in an opinion, we must nevertheless apply the Supreme Court’s holding until such time as the Supreme Court acknowledges its error and corrects itself. People v Mitchell, 428 Mich 364, 369-370; 408 NW2d 798 (1987). However, as discussed above, the Craig case involved an accident which occurred prior to the effective date of the 1986 amendment to the dramshop act. Accordingly, the effect of the 1986 amendment to the act was not before the Supreme Court for decision. Rather, the Supreme Court, in footnote 18 to the opinion, was merely making an observation of the 1986 amendment in further support of its conclusion as to the proper rule or interpretation of the statute which should be applied to the pre-1986 form of the dramshop act. Thus, the reference to the effect of subsection (4) of the dramshop act under the 1986 amendment is mere dicta. We are, we believe, free under the rule of stare decisis to decline to follow the Supreme Court’s dicta. Accordingly, we decline to follow the dicta in footnote 18 to the Craig opinion concerning the effect of subsection (4) of the dramshop act under the 1986 amendment.
Having concluded that minors may maintain an action against the dramshop, we turn to the next question, namely, whether the minor’s parents may maintain an action against the dramshop. Subsection (10), in addition to barring a recovery by the alleged visibly intoxicated person against the dramshop, also precludes recovery by any other person against the dramshop for a derivative claim on the basis of the loss of financial support, services, gifts, parental training, guidance, love, society, or companionship of the alleged visibly intoxicated person. MCL 436.22(10); MSA 18.993(10). Again, however, subsection (10) only refers to visibly intoxicated persons and to those derivative claims which are based upon serving visibly intoxicated persons. Accordingly, for the same reasons that we conclude that a minor may maintain an action against a dramshop, we must also conclude that the minor’s parents may bring their derivative claims against the dramshop. That is, subsection (10) only bars those derivative claims on the basis of the serving of a visibly intoxicated person, rather than the serving of a minor.
Finally, we turn to the question whether a dramshop defendant has a right to indemnification against an illegally served minor, whether visibly intoxicated or not, under the provisions of MCL 436.22(7); MSA 18.993(7), which was added by the 1986 amendment. However, it does not appear that the trial court reached the issue of whether defendant had a right of indemnification against the minor’s estate. Accordingly, we decline to address that issue on appeal.
Reversed.
Questions 2 and 3 are raised only in the LaGuire appeal.
We recognize that the Supreme Court in Craig, supra at 359, n 18, specifically looked at subsection (4) of the current version of the dramshop act in support of its conclusion that a minor cannot maintain an action against the dramshop. However, for reasons to be discussed infra, we conclude that we are permitted to overlook the statements of the Supreme Court to this effect in Craig.
Comack v Sweeney, 127 Mich App 375; 339 NW2d 26 (1983).
We do take judicial notice of our own internal records which reflect that the Saavedra case was filed in the trial court sometime during 1986, thus suggesting a strong likelihood that the case arose before the July 1, 1986, effective date of subsection (10) of the dramshop act. See 1986 PA 176, § 2. | [
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Per Curiam.
Plaintiffs appeal as of right from the circuit court’s order granting defendants’ motion for summary disposition. We reverse.
Plaintiffs filed suit on November 29, 1988, alleging that Kevin Marshall Davis, their fifteen-year-old son, purchased beer from defendants. Donald Lee Smith drove the vehicle in which Kevin was a passenger. Smith was involved in an automobile accident. Kevin was killed. Kevin died from "marked congestion and edema of the lungs from possibly [sic] cardiac fibrillation due to excessive alcohol intake or terminal congestive heart failure based on alcohol intake.”
Defendants filed a motion for summary disposition, claiming that plaintiffs had failed to comply with MCL 436.22(6); MSA 18.993(6) by naming Donald Lee Smith and the estate of Kevin Marshall Davis as defendants.
Plaintiffs responded that they had not alleged that Smith was intoxicated, but merely claimed that he was the driver of the automobile. Plaintiffs argued that they did not need to name their son’s estate as a defendant because they would have to sue plaintiff Thomas F. Davis, who was the personal representative of his son’s estate. Plaintiffs relied on Newman v Hoholik, 138 Mich App 66; 359 NW2d 253 (1984). In Newman, a minor’s next friend sued liquor licensees for loss of his father’s support, companionship and society. The minor’s father was injured in an automobile accident after he was allegedly served when he was visibly intoxicated. The minor did not name his father as a defendant. The minor subsequently added his father as a defendant and a default was taken. The licensees moved for summary judgment, alleging that the plaintiff had failed to name and retain his father within two years after the cause of action accrued. The circuit court agreed. This Court reversed, holding that the plaintiff did not need to name and retain his father as a party defendant because the plaintiff would have no cause of action against his father.
Defendants herein then filed a supplemental brief in support of their motion. Defendants noted that plaintiffs had relied on a case which was decided before the 1986 amendments to the dram-shop act. Defendants also noted that licensees were entitled to all defenses of the minor under MCL 436.22(8); MSA 18.993(8), even though licensees had previously only been entitled to assert factual defenses. Hence, defendants argued they were entitled to claim that plaintiffs had no cause of action against them because plaintiffs had no cause of action against their son. Defendants further argued that plaintiffs and their son were not entitled to recover pursuant to MCL 436.22(10); MSA 18.993(10), which provides:
The alleged visibly intoxicated person shall not have a cause of action pursuant to this section nor shall any person have a cause of action pursuant to this section for the loss of financial support, services, gifts, parental training, guidance, love, society, or companionship of the alleged visibly intoxicated person.
Plaintiffs responded that MCL 436.22(10); MSA 18.993(10) applied to "alleged visibly intoxicated” persons, not to minors. Plaintiffs reiterated that they should not have to name and retain their son’s estate.
Following a hearing, the circuit court ruled in favor of defendants.
Plaintiffs first claim that the circuit court erred when it held that they could not sue defendants because of MCL 436.22(10); MSA 18.993(10). We agree for the reasons stated in LaGuire v Kain, 185 Mich App 239; 460 NW2d 598 (1990).
Plaintiffs also claim that the circuit court erred when it held that they had to name and retain their dead son’s estate.
MCL 436.22(6); MSA 18.993(6) provides:
An action under this section against a retail licensee shall not be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.
Previously, MCL 436.22(5); MSA 18.993(5) provided in part:
No action against a retailer or wholesaler, or anyone covered by this act or a surety, shall be commenced unless the minor or the allegedly intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.
In Scholten v Rhoades, 67 Mich App 736; 242 NW2d 509 (1976), this Court had to decide whether a father’s failure to name and retain his son as a defendant in a suit against an operator of a beer and wine store barred his cause of action. The son was a pedestrian who was injured by a motorcycle driven by Rodney Rhoades. The plaintiff father alleged that his minor son had purchased and consumed beer from a beer and wine store which caused him to misjudge the distance and direction of the motorcycle and impaired his ability to take evasive action to avoid the collision. The defendant, who owned the beer and wine store, made a motion for summary disposition on the basis that the plaintiff father had failed to name and retain his son as a defendant. The trial court denied the motion. This Court affirmed. This Court noted that dramshop actions could be classified in three groups:
(i) by a parent or child killed or injured by a third party as a result of intoxicants served to the third party by a defendant dramshop establishment; (n) by a parent or child killed or injured through the child’s or parent’s own misdoing by reason of intoxicants served to them by a defendant dramshop establishment; (hi) by an intoxicated adult or minor for injuries sustained as a result of being served intoxicants by defendant dramshop establishment. [Id. at 740-741. Emphasis in original.]
This Court noted that the first situation was typical; however, recovery was nonetheless allowed in the second situation. But now see MCL 436.22(10); MSA 18.993(10). This Court also noted that, while the name and retain provision had been interpreted in cases involving the first situation, it had not been interpreted in cases involving the second situation. Noting that the purpose of the name and retain provision was to eliminate the practice under which the intoxicated third party settled with the injured plaintiff for a token sum and thereafter joined forces with the plaintiff against the tavern owner, this Court held:
This rationale [sic] policy reason is nonexistent in the Group ii situation. A parent is legally responsible for the medical bills of his minor child and to secure a judgment for such sums against a child is meaningless. Furthermore, unlike Group i situations where plaintiff has a recognized cause of action against the third party intoxicant, a child has no cause of action against his father or father’s estate for injuries or death of the father due to the father’s voluntary intoxication. Nor does a parent have a cause of action against his minor child for expenses incurred by father on behalf of the child due to the child’s voluntary intoxication. While it makes good sense to name and retain a party defendant where there is a cause of action against the defendant it makes no sense at all to do so where recovery is impossible because no cause of action exists. Additionally, we more than faintly suspect that were we to hold that the plaintiff father must name and retain the minor child as a party defendant the effect would be to confuse a jury and thus deny to the parent a right of recovery which existed prior to the amendment. ... In short, we find that in situations where no cause of action otherwise exists by a parent against a child who is not a third party tortfeasor, the mandatory application of the name and retain amendment is awkward, strained and absurd.
We are well aware of the rule that where a statutory provision is clear and .unambiguous, it is the court’s duty to enforce the provision as written. . . . But a statute which is clear and unambiguous is nonetheless not to be given a construction which is absurd. . . . Where a construction of a statute would lead to an absurd result, it is presumed that some exception or qualification was intended by the Legislature. . . . [C]ertainly it is strained to name as a party defendant a person against whom no cause of action exists. [Id. at 743-745.]
Thus, this Court held that the name and retain amendment was mandatory where a cause of action existed against the minor or allegedly intoxicated person but was not mandatory where the plaintiff had no recognized right of recovery against the minor or intoxicated person.
The reasoning in Scholten was followed in Dickerson v Heide, 69 Mich App 303; 244 NW2d 459 (1976), and Schultz v Murphy, 99 Mich App 386; 297 NW2d 676 (1980).
In Moran v McNew, 134 Mich App 764; 351 NW2d 881 (1982), lv den 418 Mich 905 (1984), another panel of this Court reached the opposite conclusion. In Moran, the parents of a minor, who had purchased alcohol in a bar and was injured in an accident, sued the bar without naming their son as a defendant. Without discussing Scholten, this Court held:
[T]he provision of MCL 436.22; MSA 18.993, mandating that "the minor or the alleged intoxicated person” be named as a defendant in the action, is mandatory and apparently without exception. Putney v Haskins, 414 Mich 181, 189-190; 324 NW2d 729 (1982). [Moran, supra, p 766.]
See also Belcher v The Office, Inc, 139 Mich App 385; 362 NW2d 291 (1984), lv den 422 Mich 948 (1985).
In Putney v Haskins, 414 Mich 181; 324 NW2d 729 (1982), reh den 414 Mich 1111 (1982), the plaintiffs sued the allegedly intoxicated person and the bars which served him liquor while he was allegedly intoxicated. The plaintiffs settled with the allegedly intoxicated person on the second day of trial. Our Supreme Court held that the name and retain provision required dismissal of the suit against the bars, noting that the name and retain provision prevents fraud and collusion by ensuring that the allegedly intoxicated person will have a direct financial stake in personally testifying, examining witnesses, and arguing that he did not act in a negligent manner. Moreover, the Court noted that once the liability of the allegedly intoxicated person was fixed, he had no incentive to produce witnesses or testimony tending to prove that he was not "visibly intoxicated” on the date in question, possibly making it more difficult for the dramshop defendant to identify, locate and obtain favorable testimony from the friends or acquaintances of the allegedly intoxicated person.
In Newman, supra, another panel of this Court rejected Moran and held that Scholten was correctly decided. This Court noted that Putney did not require a different result because it dealt with the issue whether the plaintiffs could continue their suit against the dramshop defendant after settling with the allegedly intoxicated defendant and did not hold that there was no exception to the name and retain provision. This Court noted that Putney had reaffirmed our Supreme Court’s holding in Salas v Clements, 399 Mich 103; 247 NW2d 889 (1976), which created an exception to the name and retain provision, and had failed to discuss Scholten. Hence, this Court concluded that
it is . . .a good and sensible law which permits an injured person to maintain a dramshop action without naming and retaining as a party defendant a close family member against whom the plaintiff has no cause of action .... [Newman, supra, p 72.]
In Salas, the plaintiffs sued defendant under the dramshop act, but failed to name the allegedly intoxicated person because they claimed that they did not know his identity. The trial court granted the defendant’s motion for summary judgment on the ground that the plaintiffs failed to comply with the name and retain provision. This Court affirmed; however, our Supreme Court reversed. The Court noted that the purpose of the name and retain statute was to eliminate the common practice of the intoxicated person entering into a settlement with the injured plaintiff for a token sum and, thereafter, energetically assisting the plaintiff with the prosecution of the suit against the tavern owner. The Court also noted that the name and retain provision discouraged possible collusion between and perjury by the allegedly intoxicated person and the injured plaintiff. While the Court agreed that the name and retain provision, if construed literally, would prevent the plaintiffs’ cause of action, it held that such a construction would produce an unreasonable and unjust result. Hence, the Court held that the statute applied to those injured persons who did not name and retain the intoxicated person as a defendant when they knew the identity of the intoxicated person.
We note that Newman was followed by other panels of this Court in Burke v Angies, Inc, 143 Mich App 683; 373 NW2d 187 (1985), and Luberski v North, 148 Mich App 675; 384 NW2d 840 (1986), lv den 426 Mich 867 (1986). Burke was certified as being in conflict with Moran, but our Supreme Court declined further consideration. 422 Mich 966 (1985).
Recently, in Gardner v Stodgel, 175 Mich App 241; 437 NW2d 276 (1989), this Court held that Scholten was distinguishable in a case where the minor had a cause of action against her mother, who was the allegedly intoxicated person. In so doing, this Court declined to comment of the propriety of the exception created in Scholten in light of the 1986 amendment to the dramshop act.
Plaintiffs in this case urge us to follow Scholten, noting that they cannot engage in collusion with their deceased son. Defendants, on the other hand, argue that, because the Legislature amended the dramshop act to provide that all defenses of the minor are available to the licensee rather than merely factual defenses which were previously available, the Legislature intended that there be no exception to the name and retain provision. MCL 436.22(8); MSA 18.993(8). Defendants further argue that, because plaintiffs have no cause of action against their son, defendants are entitled to this "defense” pursuant to MCL 436.22(8); MSA 18.993(8).
MCL 436.22(8); MSA 18.993(8) provides in part:
All defenses of the alleged visibly intoxicated person or the minor shall be available to the licensee.
MCL 436.22(5); MSA 18.993(5) previously provided in part:
[A]ll factual defenses open to the alleged intoxicated person or minor shall be open and available to the principal and surety.
We hold that MCL 436.22(8); MSA 18.993(8) applies only when the name and retain provision is applicable. In light of our holding that the dramshop act created a statutory cause of action against a licensee in favor of plaintiffs, we hold that such a cause of action should not be barred because plaintiffs had no common law cause of action against their son. If the Legislature had intended to bar plaintiffs’ cause of action, it could have done so explicitly as it did with those who claim a cause of action through an allegedly intoxicated person. MCL 436.22(10); MSA 18.993(10). As noted above, the name and retain provision remained substantially the same under the 1986 amendment. We agree with Scholten's interpretation of that provision and do not believe that that interpretation was incorrect as a result of either Putney or the 1986 amendment entitling a licensee to assert all defenses.
Reversed and remanded for further proceedings. | [
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Per Curiam.
The sole question presented in this appeal is whether a Wayne Circuit judge erred when he refused to set off the amount of a damage award obtained by plaintiff in a 42 USC 1983 action brought in federal court against the amount of a damage award obtained by plaintiff in an action for false imprisonment brought in state court. We are satisfied that both awards compensated the same injuries and, consequently, that the judge erred in not ordering the setoff.
On March 26, 1985, plaintiff was illegally arrested and detained without probable cause in Wayne City Jail for approximately three hours. As a result of this illegal detention, a federal district court jury awarded plaintiff $4,500 in damages. The theory on which plaintiff recovered was that her illegal arrest and detention amounted to a violation of her civil rights under 42 USC 1983 and that she suffered emotional trauma as a result of this violation. Consistent with plaintiff’s theory of the case, the jury had been instructed that, if it found for plaintiff, it must adequately compensate plaintiff for the emotional trauma she suffered. The jury was also instructed that it was within the domain of the jury to determine which "elements” of damage — "fright, embarrassment, humiliation, shock . . . sleepless nights and nightmares”— were proven and to place a monetary value on them.
Subsequent to plaintiff’s victory in federal court, plaintiff secured a $5,250 jury verdict in Wayne Circuit Court in an action for false imprisonment arising out of the same incident. In the state court action, plaintiff sought recovery for emotional trauma suffered and the jury was instructed on nearly identical elements of damage.
On appeal, defendant asserts that these separate jury awards amounted to double compensation for the same injuries. Plaintiff asserts that, because the causes of action are separate and distinct, the injuries must be to different interests and, consequently, that the awards compensate different injuries. This latter argument embraces the idea that the humiliation and embarrassment an individual suffers as the result of being falsely imprisoned is somehow qualitatively and quantitatively different from the humiliation and embarrassment suffered when the false imprisonment amounts to a violation of an individual’s civil rights. We believe defendant has the better argument.
Michigan law proscribes double recovery for the same injury. Great Northern Packaging, Inc v General Tire & Rubber Co, 154 Mich App 777, 781; 399 NW2d 408 (1986). To ascertain whether a double recovery has occurred, we must determine what injury is sought to be compensated. In making such a determination, the nature of the conduct causing the injury and the label attached to the plaintiff’s claims are of little relevance. Ledbet ter v Brown City Savings Bank, 141 Mich App 692, 703; 368 NW2d 257 (1985).
A review of the instant record clearly demonstrates that the damage awards received in both the federal court action and the state court action compensate the same injuries, those being injuries to plaintiffs emotional and psychological well-being. Accordingly, we conclude that plaintiff has recovered twice for the same injuries. We remand the instant action to the circuit court for entry of a judgment that reflects the offsetting of the amount of the damage award received in the federal court action against the amount of the damage award received in the state court action. Great Northern Packaging, supra.
Remanded. We do not retain jurisdiction. | [
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Griffin, J.
This appeal involves a declaratory judgment action brought by plaintiff, State Mutual Insurance Company, to determine whether it had a duty to defend or indemnify its insureds, George and Gladys Russell, in an underlying civil action. Defendants appeal as of right an order of the Gladwin Circuit Court granting summary disposition in favor of plaintiff. We affirm.
i
Beginning sometime in the mid-1970s, Gladys M. Russell operated an in-home day-care center li censed by the Department of Social Services. For several years, the minor daughter of the defendant attended the center. During this time, the child was sexually assaulted by Gladys’ husband, George. On several occasions, George touched the child’s crotch area through her clothes.
On January 18, 1988, the mother, individually and as next friend of the child, filed suit against George and Gladys Russell to recover damages stemming from the sexual assaults. Her original complaint contained three counts: negligence, assault and battery, and breach of contract.
On June 28, 1988, plaintiff State Mutual Insurance Company, the Russells’ homeowner’s insurer, filed the instant declaratory judgment action. State Mutual alleged that it had no duty to defend or indemnify the Russells because of a policy exclusion for bodily injury "expected or intended from the standpoint of the insured.” State Mutual further alleged that the underlying lawsuit fell within an exclusion for bodily injury "arising out of business pursuits of any insured.”
On December 6, 1988, George and Gladys Russell were deposed in the underlying lawsuit. George Russell admitted to touching the child more than once over a period of several years. He characterized his actions as being "not planned or deliberated” but rather something that "just happened.” In response to a leading question, Russell denied that he intended or expected to cause harm or bodily injury to anybody. He also felt his actions to have been the result of an illness.
Thereafter, plaintiff brought a motion for summary disposition in the present case pursuant to MCR 2.116(0(10). State Mutual argued that, on the basis of the deposition testimony, there was no genuine issue of material fact concerning the applicability of the policy exclusions cited above. In responding to the motion, the mother urged, in part, that she was seeking leave in the underlying lawsuit to amend her complaint to allege "a lack of intentional conduct or expected harm on the part of George Russell.” The court, however, found that the intent to injure could be inferred as a matter of law from George’s acts. Accordingly, the court granted plaintiffs motion as it pertained to plaintiffs duty to defend or indemnify George Russell. As to plaintiff’s duty relative to Gladys Russell, the court took the matter under advisement and requested additional briefs.
On August 2, 1989, the trial court issued a written decision based on the recent decision of the Supreme Court in Allstate Ins Co v Freeman, 432 Mich 656; 443 NW2d 734 (1989). The court applied a two-pronged objective test set forth in Freeman and ruled that George’s intent to injure could be inferred from his acts, thus relieving his insurer of any duty to defend or indemnify. In addressing the claim against Gladys Russell, the court ruled that "it is clear from the pleadings that Mrs. Russell was operating a day-care facility and the business exclusion of the homeowner’s policy excludes Mrs. Russell from policy coverage for the damages sought.” An order adopting this decision was filed August 15,1989.
II
On appeal, the mother and defendants Russell proceeding as cross-appellants, raise several issues for our review. Because these issues are interrelated, they will be addressed together.
First, the mother contends that the court below erred in using an objective test to determine if there was a factual question on the issue of George Russell’s intent to injure. We agree. The exclusionary clause in plaintiffs policy excluded coverage for bodily injury "expected or intended from the standpoint of the insured.” Such language requires that a subjective standard be applied in determining whether the insurer has a duty to defend. Freeman, supra at 708-710 (opinion of Boyle, J.).
However, we are not persuaded that this error requires reversal. In arguing to the contrary, the mother and defendants Russell both contend that, under a subjective analysis, George Russell’s deposition testimony raises a factual question regarding his expectation of or intent to cause harm. We disagree.
In previous cases, we have held that certain acts, such as sexual penetration of a minor child, are of such a nature that the insured’s intent to injure can be inferred as a matter of law. Auto-Owners Ins Co v Gardipey, 173 Mich App 711; 434 NW2d 220 (1988), lv den 433 Mich 855 (1989); Linebaugh v Berdish, 144 Mich App 750; 376 NW2d 400 (1985). We do not read the adoption of a subjective standard in Freeman, supra, as rendering such an inference no longer permissible. See Secura Ins Co v Blotsky, 182 Mich App 637, 641-642; 452 NW2d 899 (1990). Indeed, Justice Archer, in concurring with the adoption of a subjective standard, wrote:
[T]he lead opinion cites a number of decisions by the Court of Appeals, in addition to decisions from other jurisdictions, which have found it unnecessary in certain factual situations to engage in a subjective analysis and have inferred either an intent or expectation to injure as a matter of law. However, I disagree that the import of these decisions constitutes an engagement in theoretical exercise seeking to avoid a determination of an insured’s subjective intentions. Upon examination of these decisions, I observe that within the areas of child molestation and certain violent assaultive actions, because of the nature of the act itself, a number of courts have found that the insured fell within the instant exclusionary clause as it was nearly impossible, even under a subjective standard, to find that the party could not have either intended or expected the harm which had been inflicted. However, while there are limited factual scenarios which may arguably lend themselves to such a determination, this does not erase the clear language of the exclusionary clause or the remaining multitude of instances in which a determination of the insured’s subjective state of mind is necessary. Further, the lead opinion fails to cite any authority that these decisions are indicative of an unworkable subjective standard, or that its approach is an exception which threatens to engulf the rule. [Freeman, supra at 729-730.]
In the present case, we view the instances of sexual molestation involving the child to fall within those types of acts from which intended or expected injury may be inferred as a matter of law. It is undisputed that George Russell fondled the child’s crotch through her clothes on numerous occasions over a period of years. The child would have been between the ages of two and seven during this time. Given the age of the child and the ongoing nature of the conduct, we are unpersuaded by the mother’s contention that the absence of penetration should somehow preclude us from finding that harm was intended or expected. Furthermore, we find George Russell’s characterization of his acts as impulsive and the product of an illness to be of no moment. This testimony does not detract from the inference of harmful intent generated by the deplorable nature of the acts themselves.
In light of the foregoing, we hold that the trial court did not err in ruling that the conduct of plaintiff’s insured, as a matter of law, fell within the intentional acts exclusion of the policy. Although the court erred in using an objective standard, we will not reverse where the right result is reached, but for the wrong reason. Portice v Otsego Co Sheriff’s Dep’t, 169 Mich App 563, 566; 426 NW2d 706 (1988).
hi
The next issue is raised by the mother only. She claims that plaintiff has a duty to defend George Russell because her first amended complaint sets forth several causes of action that sound in negligence. This matter does not appear to have been addressed by the trial court. In any event, we find this argument to be without merit. We have reviewed the allegations of negligence contained in the amended complaint. We conclude that they are nothing more than a transparent attempt by the mother to trigger insurance coverage by characterizing intentionally tortious conduct as negligent activity. As such, plaintiff has no duty to defend or indemnify against them. Smorch v Auto Club Group Ins Co, 179 Mich App 125, 128-129; 445 NW2d 192 (1989); Tobin v Aetna Casualty & Surety Co, 174 Mich App 516, 518; 436 NW2d 402 (1988); Iowa Kemper Ins Co v Ryan, 172 Mich App 134, 137; 431 NW2d 434 (1988).
iv
Lastly, both the mother and defendants Russell contend that the trial court erred in ruling as a matter of law that the business exclusion relieved plaintiff of its duty to defend or indemnify Gladys Russell. This exclusion provided as follows:
This policy does not apply:
... to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits.
The mother argues that, because she did not always pay for the day-care services provided by Gladys Russell, the business exclusion does not apply. In a similar vein, defendants Russell argue that this arrangement raises a factual question regarding profit motive, a necessary element of a business pursuit. We find no merit to either contention.
To trigger the business pursuit exclusion, the activity must be engaged in continually and for profit. State Mutual Cyclone Ins Co v Abbott, 52 Mich App 103, 108; 216 NW2d 606 (1974). In the present case, Gladys Russell operated a licensed in-home day-care facility for approximately ten years. During this time, she charged a variable fee based on a parent’s ability to pay. We find these facts sufficient as a matter of law to trigger the applicability of the business pursuit exclusion.
We recognize, as the mother points out, that there was testimony that some of the acts may have occurred while Gladys Russell was gratuitously caring for the child. However, such testimony does not render the business exclusion inapplicable. For exclusion purposes, the focus is on the business pursuit itself, not the specific acts complained of. That is, all that is required to trigger the exclusion is that the acts be performed as part of the business or service normally performed by the insured for profit, i.e., child care. Frankenmuth Mutual Ins Co v Kompus, 135 Mich App 667, 676-677; 354 NW2d 303 (1984), lv den 421 Mich 863 (1985).
Finally, the mother and defendants Russell both argue that the business exclusion does not apply because baby-sitting or child care falls within the exception for activities "ordinarily incident to non-business pursuits.” We find no substance to this contention. The child care involved in this case was a business pursuit of plaintiffs insured.
v
On the basis of the foregoing, we conclude that the trial court properly found, as a matter of law, that plaintiff was not obligated to defend or indemnify George and Gladys Russell in the lawsuit arising out of the sexual assaults. Accordingly, the order of summary disposition is affirmed in all respects.
Affirmed.
The mother has attached to her brief and various pleadings below a copy of an amended complaint, which she alleges was filed in the underlying lawsuit on June 3, 1989. This document contains an additional cause of action alleging negligence through lack of intent, as well as a claim for negligent infliction of emotional harm.
The mother’s motion for reconsideration of this ruling was denied following a hearing held June 23,1989. | [
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