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JANSEN, J.
In Docket No. 262141, defendants Ann Arbor Police Officers Michael Watchowski and Steve Lawrence appeal as of right the trial court’s order denying their motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). In Docket No. 262903, plaintiff appeals by leave granted an order granting summary disposition to defendants Washtenaw County and individual county law enforcement personnel Anthony Woodford, Pamela Raciti, and Eugene Hahn. Plaintiff challenges the dismissal of the individual county defendants only. We conclude that all individual city defendants and the individual county defendants were entitled to summary disposition on the basis of governmental immunity. We therefore reverse the order denying the individual city defendants’ motion and affirm the order granting summary disposition in favor of the individual county defendants. These consolidated appeals are being decided without oral argument pursuant to MCR 7.214(E).
This action arises from the death of plaintiffs decedent, Demetrius Morton, who committed suicide while confined in a holding cell at the 15th District Court. At issue in these appeals is whether the individual defendants, law enforcement personnel involved in Morton’s confinement, are entitled to summary disposition on the basis of governmental immunity, MCL 691.1407(2), because their alleged conduct was not “the proximate cause” of Morton’s death.
This Court reviews de novo rulings on summary disposition motions. Van v Zahorik, 460 Mich 320, 326; 597 NW2d 15 (1999).
MCL 691.1407(2) provides individual immunity for governmental employees under certain circumstances. The statute states, in part:
Except as otherwise provided in this section,... each officer and employee of a governmental agency... is immune from tort liability for an injury to a person... caused by the officer, employee... while acting on behalf of a governmental agency if all of the following are met:
(a) The officer, employee... is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The officer’s, employee’s... conduct' does not amount to gross negligence that is the proximate cause of the injury or damage. [MCL 691.1407(2) (emphasis added).]
The phrase “the proximate cause” within subdivision c “is best understood as meaning the one most immediate, efficient, and direct cause preceding an injury.” Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000).
We agree with defendants that the one most immediate, efficient, and direct cause of Morton’s death was his own conduct. This case is analogous to Kruger v White Lake Twp, 250 Mich App 622, 626-627; 648 NW2d 660 (2002). There, the plaintiff asked the police to take her daughter into custody because the daughter was intoxicated and posed a danger to herself and others. The police took her into custody and handcuffed her in a booking room. She escaped from the police station, ran into traffic, was hit by a vehicle, and died. This Court held that police officers were entitled to governmental immunity because their actions could not be considered “the proximate cause” of the death. The Court stated that “there were several other more direct causes of Kathryn’s injuries than defendant officers’ conduct, e.g., her escape and flight from the police station, her running onto M-59 and into traffic, and the unidentified driver hitting plaintiffs decedent. Any gross negligence on the defendant officers’ part is too remote to be ‘the’ proximate cause of Katherine’s injuries.” Id., p 627.
It is plaintiffs position here that Morton’s actions should not be considered the proximate cause of his death because, at least in prisoner suicide cases, causation is intertwined with foreseeability. Therefore, if Morton’s actions were foreseeable, then those actions are not a superseding cause, and, thus, defendants’ conduct may be deemed “the proximate cause.” Plaintiff primarily relies on an unpublished federal district court opinion, Schreiber v Crawford Co, 2002 WL 1907974; 2002 US Dist LEXIS 15349 (ED Mich, 2002).
We decline plaintiffs invitation to adopt the reasoning in Schreiber. The decisions of this Court and our Supreme Court that address the issue of “the proximate cause” under MCL 691.1407(2) in circumstances in which there were multiple causes of the harm do not discuss the concepts of intervening and superceding causation and do not indicate that foreseeability of an intervening cause is relevant to whether it may be deemed “the proximate cause” under the statute. For example, in Robinson, supra at 462, “the proximate cause” of injuries and deaths resulting from a collision following a police pursuit was the reckless conduct of the driver of the fleeing vehicle, rather than the pursuit of the individual police officers. Whether the reckless conduct or the flight of the vehicle was foreseeable to the officers was not mentioned. In Curtis v City of Flint, 253 Mich App 555, 562-563; 655 NW2d 791 (2002), the proximate cause of the plaintiffs injuries when her vehicle collided with the back of a car that abruptly changed lanes and stopped for an emergency vehicle was the abrupt movement and stopping of the vehicle that she hit, not the actions of the driver of the emergency vehicle. Whether the evasive movements were foreseeable to the driver of the emergency vehicle was not considered. There is no discussion of intervening causation or foreseeability in these cases and no indication that the cause that is the most immediate, efficient, and direct cause preceding an injury may not be deemed “the proximate cause” for purposes of MCL 691.1407(2) if it was foreseeable to the governmental actors.
Because the alleged conduct of the individual defendants in this case was not “the proximate cause” of Morton’s death, these defendants are immune from tort liability pursuant to MCL 691.1407(2). Therefore, we reverse the order denying the individual city defendants’ motion for summary disposition and affirm the order granting summary disposition in favor of the individual county defendants.
Affirmed in part, reversed in part, and remanded for entry of judgment in favor of the individual city defendants.
Markey, J., concurred. | [
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PER CURIAM.
Plaintiffs appeal as of right the trial court’s grant of summary disposition in favor of defendants in this case, which stems from their protracted challenges of administrative decisions by the Commissioner of the Office of Financial and Insurance Services and the Attorney General, as well as alleged tortious conduct by Blue Cross Blue Shield of Michigan (BCBSM). We affirm.
I. FACTS
A. OVERVIEW
Plaintiff ET. Today, Inc., is a nonprofit corporation whose members, several of whom are individual plaintiffs, are licensed independent physical therapists; these individuals own and operate freestanding physical therapy clinics in Michigan. The Michigan Commissioner of the Office of Financial and Insurance Services (Commissioner) is empowered to regulate BCBSM under 1980 PA 350, the Nonprofit Health Care Corporation Reform Act (the Act), MCL 550.1101 et seq? BCBSM is a nonprofit, charitable health care corporation that operates pursuant to this act.
In this multicount action, plaintiffs sought (1) to compel the Commissioner to engage in several specific regulatory enforcement actions against BCBSM for creating and facilitating fraudulent business arrange ments, (2) declaratory judgments delineating the Commissioner’s enforcement duties under the Act, and (3) damages from BCBSM for its alleged tortious interference with a business interest through these fraudulent business arrangements. Additionally, plaintiffs sought to join the Attorney General as a party defendant for (1) a declaratory judgment that the Attorney General is required to engage in particular enforcement activities against BCBSM under the Act and (2) a writ of mandamus compelling the Attorney General to engage in these activities.
This case is but one of plaintiffs’ challenges to the regulatory posture of the Commissioner and the business practices of BCBSM. Consequently, we summarize these related, yet distinctive, cases in part 1(C) of this opinion, “Related Litigation.” These cases often proceeded simultaneously; for the purposes of clarity, we discuss each case chronologically and note when the proceedings interacted. Additionally, this appeal concerns the intricacies of part 5 of BCBSM’s enabling act, MCL 550.1501 et seq. As a result, we describe part 5 of the Act to aid in understanding the procedural history of this appeal in part 1(B) of this opinion, “The Provider Class Plan Review Process.” Finally, part 1(D) of this opinion summarizes the procedural history of this case.
B. THE PROVIDER CLASS PLAN REVIEW PROCESS
The Nonprofit Health Care Corporation Reform Act, MCL 550.1101 et seq., provides for the comprehensive regulation of BCBSM, a charitable health insurance organization — as well as Michigan’s largest provider of health insurance. Part 5 of the Act, MCL 550.1501 et seq., controls how BCBSM reimburses health care providers (providers). MCL 550.1502 provides that BCBSM may create “provider class plans” (PCPs) that govern its contracts with medical service providers of like kind. BCBSM initiates the PCP approval process by preparing a proposed PCI] which must explain how it meets the goals outlined in MCL 550.1503 (uniform reporting by providers) and MCL 550.1504 (access, quality, and cost containment). The proposed PCP must also include the contracts that providers, like plaintiffs, would be required to sign under the PCI] as well as details regarding reimbursement arrangements under the proposed PCP MCL 550.1506(1). Additionally, BCBSM must “establish and implement procedures to obtain advice and consultation from a provider class” when creating, modifying, or reviewing a PCP MCL 550.1505. Finally, BCBSM may only file a plan at certain times. MCL 550.1506.
MCL 550.1506(1) then requires BCBSM to submit the proposed PCP to the Commissioner for review. MCL 550.1506(2) provides that the Commissioner then conduct a limited review of the PCI] during which the Commissioner “shall examine the plan and shall determine only if the plan contains a reimbursement arrangement and objectives for each goal provided in [MCL 550.1504].” (Emphasis added.) If the Commissioner finds that BCBSM’s proposed plan is incomplete, BCBSM must submit a revised PCP in 15 days. MCL 550.1506(3) and 550.1507. In other words, the Commissioner reviews the PCP for completeness, rather than for its ability to achieve the Act’s goals for PCPs outlined in MCL 550.1504. BCBSM may modify a PCP placed in effect and “retained” for the Commissioner’s records at any time, except for the 180-day period after which the Commissioner declares a PCP “not retained” under MCL 550.1509. MCL 550.1508. The only preconditions to such an amendment are that it was prepared after consultation with affected providers and subscribers, MCL 550.1508(2), and that it “has been filed with and is agreed to by the commissioner,” MCL 550.1508(1).
After a PCP has been in place for two years, the Commissioner may review it for achievement of the PCP goals listed in MCL 550.1504. MCL 550.1509. When reviewing a PCP under MCL 550.1509, the Commissioner may consider annual reports by BCBSM; demographic, epidemiological, and long-term economic trends; sudden changes in circumstances; statutory changes; administrative and judicial decisions; changes in health care practices and technology; and comments from the affected provider group. MCL 550.1509(4). The Commissioner then evaluates whether the PCP meets the goals outlined in MCL 550.1504(1):
(a) There will be an appropriate number of providers throughout this state to assure the availability of certificate-covered health care services to each subscriber.
(b) Providers will meet and abide by reasonable standards of health care quality.
(c) Providers will be subject to reimbursement arrangements that will assure a rate of change in the total corporation payment per member to each provider class that is not higher than the compound rate of inflation and real economic growth.
After building a record under MCL 550.1509 and considering the goals stated in MCL 550.1504(1), the Commissioner makes one of three rulings:
(1) that the PCP meets all the goals (thus retaining the PCP), MCL 550.1510(l)(a);
(2) that “although the provider class plan does not substantially achieve 1 or more of the goals of the corporation, a change in the provider class plan is not required because there has been competent, material, and substantial information obtained or submitted to support a determination that the failure to achieve 1 or more of the goals was reasonable ...” (thus retaining the PCP), MCL 550.1510(l)(b); or
(3) that the PCP failed to meet the Act’s goals (thus declaring the PCP “not retained”), MCL 550.1510(l)(c).
Subscribers (the insureds of BCBSM), BCBSM, the Attorney General, and organizations representing affected provider classes (such as ET. Today) have the right to appeal certain determinations of the Commissioner, including determination reports issued pursuant to MCL 550.1509. MCL 550.1515. All appeals under part 5 are considered by an independent hearing officer (IHO). MCL 550.1515(3) outlines the scope of the IHO’s review of a determination report by the Commissioner:
In an appeal pursuant to this section, the relief available to a person, and the decision of an independent hearing officer hearing an appeal, shall be limited to the following:
(a) Affirming or reversing a determination of the commissioner under [MCL 550.1509(1)] and [MCL 550.1510(1)].
(b) Determining, based on the information and factors described in [MCL 550.1509(4)] and the standards prescribed in [MCL 550.1516], 1 of the following:
(i) That the provider class plan prepared by the corporation under [MCL 550.1511(1)] was prepared in compliance with that section and shall be retained as provided in [MCL 550.1506(4)].
(ii) That the provider class plan prepared by the commissioner under [MCL 550.1513(2)(a)] was prepared in compliance with that section and shall be retained as provided in [MCL 550.1506(4)].
(Hi) That a provider class plan described in subparagraph (i) or (ii) was not prepared in compliance with [MCL 550.1511(1)] or [MCL 550.1513(2)(a)], respectively, and shall not be retained as provided in [MCL 550.1506(4)]. In this case, the hearing officer shall order the corporation to prepare and submit a provider class plan as provided in subsection (4). Detailed findings must accompany the determination made by the hearing officer pursuant to this subdivision.
If the IHO reverses a determination report under MCL 550.1515(3)(b)(iii), BCBSM must submit an amended PCP within 180 days of the IHO’s determination. MCL 550.1515(4). The IHO then evaluates this PCP to ensure that it “substantially achieves the goals of [BCBSM] as provided in [MCL 550.1504].” Id.
C. RELATED LITIGATION
Plaintiffs’ original displeasure with BCBSM arose from its practice of reimbursing freestanding, or “independent,” physical therapy clinics (IPTs) at a lower rate than hospital-affiliated, or “outpatient,” physical therapy clinics (OPTs). In 1996, plaintiffs sued BCBSM in the Wayne Circuit Court, challenging BCBSM’s 1994 rehabilitation therapy PCP (RTPCP) and seeking (1) a declaratory judgment that differential reimbursements violated the Act and (2) damages because these differ ential reimbursement rates constituted a tortious interference with plaintiffs’ business interests. The trial court granted summary disposition in favor of BCBSM. In the same month, plaintiffs also sued the Commissioner in the Ingham Circuit Court, seeking a declaratory judgment that the Commissioner was required by the Act to seek modification of the 1994 RTPCP and injunctive relief compelling the Commissioner to issue a cease and desist order against BCBSM for engaging in discriminatory reimbursement practices. The trial court granted summary disposition in favor of the Commissioner because the Act “contained no provision imposing on the Commissioner a duty to order that BCBSM immediately cease and desist its allegedly discriminatory conduct, and ... while plaintiffs previously had sought the Commissioner’s review of BCBSM’s Rehabilitation Therapy provider class plan the requested view was premature” for failure to exhaust administrative remedies. See PT Today, Inc v Blue Cross & Blue Shield of Michigan, unpublished opinion per curiam of the Court of Appeals, issued July 20, 2001 (Docket Nos. 211294, 211309, and 215795), slip op at 4 (PT Today I). Plaintiffs appealed both decisions to this Court, which consolidated the appeals in PT Today I. While this Court considered plaintiffs’ appeals, plaintiffs claimed to have discovered that BCBSM was engaging in fraudulent billing practices aimed at reducing plaintiffs’ market share. Plaintiffs requested leave to supplement the record with evidence of “false claims” activities by BCBSM. This Court denied plaintiffs’ first and second motions to supplement the record.
This Court affirmed both circuit courts’ grants of summary disposition in favor of defendants. The Court affirmed the Wayne Circuit Court’s grant of summary disposition in favor of BCBSM because health care providers do not have standing to sue BCBSM directly for alleged violations of the Act. Id. It likewise affirmed the Wayne Circuit Court’s grant of summary disposition in favor of BCBSM on plaintiffs’ action for tortious interference with a business interest because plaintiffs “failed to demonstrate that BCBSM improperly intended any interference” or that BCBSM’s conduct was “improper, that is illegal, unethical, or fraudulent. ...” Id. at 5. The Court then affirmed the Ingham Circuit Court’s decision because plaintiffs had failed to exhaust their administrative remedies under the part 5 PCP review process. Id. at 6-7, citing Genesis Ctr, PLC v Financial & Ins Services Comm’r, 246 Mich App 531; 633 NW2d 834 (2001). Finally, this Court ruled that “ ‘the commissioner had no clear legal duty under the [Act] to issue a cease and desist order and because the statutory review proceedings present an alternate and adequate remedy.’ ” PT Today I, supra, slip op at 8, quoting Genesis Ctr, supra at 546.
While PT Today I was playing out, plaintiffs sought administrative relief through the part 5 PCP review process. In 1997, BCBSM filed a new rehabilitation therapy PCP (the 1997 PCP), which again reimbursed IPTs at a lower rate than OPTs. In accord with the Commissioner’s limited power of initial review under MCL 550.1506(2), the Commissioner'retained the PCP Upon request by plaintiffs and a related IPT organization, the Commissioner evaluated the PCP under MCL 550.1509. The Commissioner’s determination report concluded that “BCBSM ‘generally met’ the access goal” and “did not meet the quality of care and cost goals, but [this] failure was reasonable.” Michigan Physical Therapy Ass’n, Inc v Ins Comm’r, unpublished opinion per curiam of the Court of Appeals, issued April 23, 2003 (Docket Nos. 230016 and 230017), slip op at 3 (PT Today II). Plaintiffs then appealed to the IHO under MCL 550.1515.
During one of the hearings before the IHO, BCBSM gave the Commissioner and plaintiffs a copy of a proposed modified PCP for IPTs; BCBSM claims that this modified PCP was drafted to address some of the Commissioner’s concerns in a July 1999 determination and order. BCBSM required many IPTs to accept the new provider agreement that accompanied the modified PCP Plaintiffs protested these changes, arguing that BCBSM was forcing them to work under terms that violated the IHO’s order. The Commissioner and the Attorney General did not stop BCBSM’s renegotiation of these agreements.
In August 2000, the IHO reversed the Commissioner’s determination and order, concluding that the 1997 PCP failed to meet the Act’s goals and therefore should “not be retained.” In particular, the IHO found that the PCP did not meet the statutory goals concerning costs, quality, and access because it favored higher-priced OPTs and reduced quality of care by restricting convenient access in the 29 Michigan counties without OPTs. Additionally, the IHO found that the four- to eightfold reimbursement disparity between IPTs and OPTs was unlawfully discriminatory. Consequently, the IHO ordered BCBSM to prepare a remedial PCP to comply with his order within 180 days. The Commissioner appealed to this Court. Shortly thereafter, plaintiffs filed a separate suit in the Ingham Circuit Court, which is the instant case and which will he discussed at length in part 1(D) of this opinion. In the meantime, this Court stayed the IHO’s order. In April 2003, this Court vacated the IHO’s order in PT Today II. It reversed the IHO’s determination and order on two grounds. First, it ruled that the IHO had exceeded his scope of review when he found that the Commissioner’s “ ‘determination order must be reversed because the provider class plan was not prepared in compliance with the act.’ ” PT Today II, supra, slip op at 4. Rather, the Court, concluded, “the IHO’s authority in this case is limited to reviewing the [Commissioner’s] determination report regarding the relevant statutory goals.” Id. Second, this Court found that the IHO had misinterpreted the scope of the Commissioner’s review of a PCP under MCL 550.1509 and had failed to accord the Commissioner’s determination report proper deference. Id. at 6-7.
D. THE INSTANT CASE
In January 2001, plaintiffs filed a voluminous complaint against the Commissioner in the Ingham Circuit Court. While plaintiffs requested various forms of relief and alleged many individual violations of the Act, the gravamina of the complaints were that (1) the Commissioner wrongfully acquiesced to the 2000 modified PCP and (2) the Commissioner was derelict in not acting on alleged violations of the Act by BCBSM.
Plaintiffs alleged that BCBSM and the Commissioner had circumvented the part 5 PCP review process and thereby rendered plaintiffs’ victory before the IHO meaningless. Plaintiffs claimed that BCBSM’s 2000 modified PCP contained provisions that the IHO explicitly found to be contrary to the Act’s goals and contended that, if BCBSM is able to file a “modified” PCP that is essentially the same as the one a provider group challenges under MCL 550.1515, BCBSM could perpetually avoid an adverse judgment. This, they claimed, vitiated the part 5 review process, violated the Act, and infringed on plaintiffs’ due process rights.
Plaintiffs further alleged that BCBSM encouraged and created fraudulent reimbursement schemes in which IPTs were classified as OPTs so that BCBSM could give “bonus” reimbursements to hospitals that were in fact unaffiliated with the IPTs. Further, they posited, the Commissioner wrongfully ignored evidence plaintiffs presented regarding these crimes. Plaintiffs reasoned that, as a monopoly, BCBSM had an incentive to pay these “bonus” reimbursements because higher costs translate into higher revenues for monopolies. Additionally, plaintiffs claimed that BCBSM favored hospital-centered care and therefore wanted to remove IPTs from the market; these schemes supposedly furthered that goal. Plaintiffs sought declaratory and injunctive relief for both of these grievances.
Six months into the litigation, the trial court joined BCBSM as a defendant by stipulation of plaintiffs and the Commissioner. Plaintiffs filed a second amended complaint that added requests for a declaratory judgment and damages from BCBSM for tortious interference. For eight months, the lawsuit was at a standstill as BCBSM made two failed interlocutory appeals and the parties stayed proceedings while they awaited rulings from this Court in PT Today II.
In April 2003, this Court issued the opinion in PT Today II. As discussed in part 1(C) of this opinion, this Court vacated the IHO’s order, which meant that the 1997 PCP was again “retained.” In July 2004, plaintiffs moved to join the Attorney General to compel him to investigate BCBSM’s alleged conduct, and requested leave to file a third amended complaint adding their complaints against the Attorney General and addressing this Court’s ruling in PT Today II. The trial court denied plaintiffs’ motions because the amended complaint requested the same relief and added only futile claims against the Attorney General. In November 2004, 35 months after the initiation of the lawsuit, the trial court granted summary disposition in favor of the Commissioner and BCBSM for numerous reasons identified in part III of this opinion. We now consider plaintiffs’ appeal.
II. STANDARD OF REVIEW
A trial court’s decision granting summary disposition is reviewed de novo to determine whether the prevailing party was entitled to judgment as a matter of law. Allen v Keating, 205 Mich App 560, 562; 517 NW2d 830 (1994). When reviewing a motion under MCR 2.116(0(10), the court must examine the documentary evidence presented below and, drawing all reasonable inferences in favor of the nonmoving party, determine whether a genuine issue of material fact exists. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). A question of fact exists when reasonable minds could differ regarding the conclusions to be drawn from the evidence. Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 398-399; 491 NW2d 208 (1992).
Questions of statutory interpretation are also reviewed de novo. Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). Questions involving the proper interpretation of a contract or the legal effect of a contractual clause are likewise reviewed de novo. Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).
III. ANALYSIS
A. MOOTNESS
Plaintiffs appeal the denial of declaratory relief (which included a declaration that the Commissioner’s implementation of the PCP review process violated both the Act and plaintiffs’ constitutional right to procedural due process) for the reason that their claim was moot. In PT Today II, this Court vacated the IHO’s order invalidating the 1997 PCP with which the 2000 modified PCP allegedly conflicts. We conclude that the elimination of any contradiction between the Commissioner’s determination report and the IHO’s order removed the basis of the controversy on which plaintiffs sought declaratory judgment. Consequently, the trial court exercised sound discretion in declining to grant declaratory relief to plaintiffs.
MCR 2.605 governs declaratory judgments. The language of MCR 2.605 is permissive rather than mandatory; thus, it rests with the sound discretion of the court whether to grant declaratory relief. City of Lake Angelus v Aeronautics Comm, 260 Mich App 371, 377 n 7; 676 NW2d 642 (2004). MCR 2.605(A) empowers a circuit court to issue a declaratory judgment in “a case of actual controversy____” The existence of an “actual controversy” is a condition precedent to the invocation of declaratory relief. Citizens for Common Sense in Gov’t v Attorney General, 243 Mich App 43, 54-55; 620 NW2d 546 (2000). As such, a court may not “decide moot questions in the guise of giving declaratory relief,” Dep’t of Social Services v Emmanuel Baptist Preschool, 434 Mich 380, 470; 455 NW2d 1 (1990) (opinion by BOYLE, J.), because moot cases “presento only abstract questions of law that do not rest upon existing facts or rights,” B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998). However, in the event the moot issue “is one of public significance that is likely to recur, yet evade judicial review,” a court may then grant injunctive relief. Federated Publications, Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002).
We conclude that this Court’s decision in PT Today II eliminated the conflict on which plaintiffs based their request for declaratory judgment. Plaintiffs concede that the 2000 modified PCP does not conflict with the 1997 PCP, which again became “retained” when this Court vacated the IHO’s order in PT Today II. Conse quently, the question of the modified PCP’s validity, as well as that of the PCP review process, is hypothetical; in order to reach a fact pattern similar to that which preceded this Court’s ruling in PT Today II, the following must occur:
(1) Plaintiffs would have to challenge a retained PCP;
(2) the Commissioner would have to decide to retain the PCP;
(3) plaintiffs would have to appeal to an IHO;
(4) plaintiffs would have to win before the IHO;
(5) BCBSM would have to file a modified PCP that contradicted the IHO’s order;
(6) the Commissioner would have to either choose to not act against the modified PCP or approve it;
(7) the Commissioner and BCBSM would both have to choose to not appeal their losses before the IHO, or one of the two would have to lose on appeal; and
(8) the Commissioner would have to leave the contradictory modified PCP in place.
These contingencies have not recurred and are unlikely to recur. For example, in light of past experience and the limited scope of review of the Commissioner and an IHO in the PCP review process, BCBSM’s physical therapy PCP is highly unlikely to be ordered “not retained.” Additionally, it seems unlikely that the Commissioner or BCBSM will delay as long as they did in the instant case before requesting a stay of an IHO’s order. Importantly, their delay in requesting a stay allowed plaintiffs to complain that, in the interim between the IHO’s order and the stay, BCBSM ignored the order and thus sidestepped the part 5 PCP review process.
This does not end our inquiry on the issue of declaratory relief. As noted above, a trial court may, in its sound exercise of discretion, grant declaratory relief if the moot issue “is one of public significance that is likely to recur, yet evade judicial review.” Federated Publications, supra at 112. Although no party raised the authority on appeal, we note that in Lake Angelus, this Court ruled that, while an individual opposing a local ordinance banning the use of seaplanes on a lake had not yet initiated the administrative process that might lead to the promulgation of an Aeronautics Commission rule overriding that ordinance, there was a sufficient case in controversy, given that a declaratory judgment adverse to the individual would avoid the need to engage in the lengthy and expensive administrative process. Id. at 376. The Court was willing to so rule in part because of this individual’s perseverant challenge to the city’s ordinance, which would seem similar to the persistence of plaintiffs in this case after even a brief survey of the trial record and voluminous related litigation. See id. However, in Lake Angelus, this Court affirmed the trial court’s grant of a declaratory judgment as properly within its discretion, noting that MCR 2.605 indicates that a court “may” grant declaratory relief. Id. at 377 n 7. Under the deferential standard of review outlined in MCR 2.605, a reviewing court must affirm the trial court’s decision even if a reasonable person might differ with the trial court in its decision to withhold relief. Thus, despite the likelihood that plaintiffs will attempt to re-create the factual and legal situation meriting legal relief on this issue, much like in Lake Angelus, we will not upset the trial court’s sound exercise of discretion. See MCR 2.605; Lake Angelus, supra at 377 n 7.
B. CONSTITUTIONAL DUE PROCESS VIOLATIONS
Plaintiffs next allege that the trial court interpreted the part 5 PCP review process in a manner that denied them their constitutional rights to due process. We disagree. In addition to noting that these claims were mooted by this Court’s decision in PT Today II, we conclude that plaintiffs failed to plead a prima facie case for denial of due process.
As discussed in part 111(A) of this opinion, we conclude that any claim regarding BCBSM circumventing the IHO’s order was mooted by PT Today II. As such, plaintiffs ask this Court to resolve a weighty constitutional question in the abstract, which the Supreme Court has cautioned against in Council of Orgs & Others for Ed About Parochiaid, Inc v Governor 455 Mich 557, 568; 566 NW2d 208 (1997).
Plaintiffs correctly note that the United States Supreme Court “ ‘consistently has held that some form of hearing is required before an individual is finally deprived of a property interest.’ ” Dow v Michigan, 396 Mich 192, 205 n 20; 240 NW2d 450 (1976), quoting Mathews v Eldridge, 424 US 319, 333; 96 S Ct 893; 47 L Ed 2d 18 (1976). For the purposes of a procedural due process analysis, the United States Supreme Court has turned to state law when determining whether a plaintiff holds a property interest:
The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits....
... To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. [Bd of Regents of State Colleges v Roth, 408 US 564, 576-577; 92 S Ct 2701; 33 L Ed 2d 548 (1972) (emphasis added).]
If a court finds that a plaintiff was indeed deprived of property, it must then determine what process is due to him or her; to do so, the court considers (1) the private interest implicated, (2) the government interest implicated, and (3) the risk of error inherent in current procedures compared to the probability that alternative procedures would reduce error. See Ingraham v Wright, 430 US 651; 97 S Ct 1401; 51 L Ed 2d 711 (1977).
In this case, plaintiffs’ purported property interests are the right to conduct business in the state of Michigan and, even vaguer, the right to an unspecified market share in the physical therapy market. Plaintiffs fail to show any legally enforceable interest based on their expectancies of business with BCBSM: they are based neither in contract nor statute. As such, they are mere “unilateral” expectancies, and therefore do not rise to the level of property interests for the purposes of a procedural due process analysis. Roth, supra at 577. By stating in a conclusory fashion that they have a legally enforceable property interest, plaintiffs leave it to this Court to discover and rationalize the basis for their claims. As such, they have abandoned the argument on appeal. Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998).
Indeed, even if plaintiffs were able to establish that they were deprived of property by the Commissioner’s actions, they likely would not establish that they were due any more process than is currently available under the Act. In fact, plaintiffs still have additional remedies beyond the appeal of the 1997 PCE For example, they may still challenge the 2000 modified PCI) during which challenge there would be an evidentiary and hearing process as outlined in the Act. That said, plaintiffs abandoned this element of the procedural due process analysis entirely. Plaintiffs’ briefs and pleadings never weighed the competing interests of the providers, BCBSM, and the Commissioner in their challenge to the Commissioner’s interpretation of the PCP review process. Again, the appellants have merely announced their position and have left it to this Court to discover and rationalize the basis for their claims. Therefore we consider this element of their appeal abandoned. Wilson, supra at 243.
C. MANDAMUS AGAINST THE COMMISSIONER
Plaintiffs next claim that the trial court erred in granting summary disposition in favor of the Commissioner in relation to plaintiffs’ prayer for a writ of mandamus when plaintiffs submitted affidavits alleging that (1) BCBSM participated in false claims activities, (2) that these activities had ended, and (3) that the Commissioner, after reviewing plaintiffs’ complaints, chose not to engage in such enforcement actions. We disagree.
A trial court’s decision whether to issue a writ of mandamus is reviewed for an abuse of discretion, Baraga Co v State Tax Comm, 466 Mich 264, 268-269; 645 NW2d 13 (2002), but any underlying issue of statutory interpretation is a question of law, which is reviewed de novo on appeal, In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). Mandamus will not lie to control the exercise of discretion or for the purpose of reviewing, revising, or controlling the exercise of discretion of administrative bodies, but will lie to require a body or an officer charged with a duty to take action on the matter. Lee v Macomb Co Bd of Comm’rs, 235 Mich App 323, 332-333; 597 NW2d 545 (1999), rev’d on other grounds 464 Mich 726 (2001).
While plaintiffs do not precisely state under which provisions they seek mandamus against the Commissioner, there are two candidates in part 6 of the Act under which the Commissioner may possibly be compelled to enforce the Act against BCBSM. First, MCL 550.1603(4) provides that “[i]f it appears .... that this act or any other law of this state has been violated, the commissioner immediately shall report the violation to the attorney general in writing.” (Emphasis added.) Second, MCL 550.1605(1) provides:
Upon due notice and an opportunity of evidentiary hearing pursuant to the administrative procedures act, the commissioner may suspend or limit the certificate of authority of a health care corporation if the commissioner determines that any of the following circumstances exist:
(a) The health corporation does not meet the requirements of this act respecting the adequacy of its reserves.
(b) The health care corporation is using methods or practices in the conduct of its business which render further transactions hazardous or injurious to subscribers of the corporation or the public.
(c) The health care corporation refuses or fails to comply with this act or with a lawful order of the commissioner. [Emphasis added.]
The Commissioner fully complied with MCL 550.1603(4) by reporting to the Attorney General in writing both alleged claims “schemes” identified by plaintiffs. Meanwhile, MCL 550.1605(1) indicates that the Commissioner may limit or revoke the certificate of authority for BCBSM. The plain language of the provision gives the Commissioner discretion; as such, a writ of mandamus will not lie. Lee, supra at 332-333. Indeed, this case illustrates precisely why a trial court should not grant mandamus to require a particular exercise of discretion: Plaintiffs asked the court to impose particular enforcement priorities, including staff allocations, on the Commissioner and the Attorney General. These decisions properly fall within the ambit of the political branches of government. Moreover, we agree with defendants that, at most, plaintiffs’ evidence shows only that false claims activities occurred in the past, while defendants’ evidence shows that any illegal activity has ended. As such, it is unclear what relief would be appropriate. We conclude that the trial court did not abuse its discretion in denying plaintiffs’ requests for writs of mandamus and, therefore, should be affirmed.
D. JOINDER OF THE ATTORNEY GENERAL
Plaintiffs next appeal as an abuse of discretion the trial court’s denial of their motion to join the Attorney General under MCR 2.205 or 2.206. If the Attorney General had been joined, plaintiffs would have sought a declaratory judgment and a writ of mandamus against the Attorney General, both compelling the Attorney General to engage in particular enforcement actions against BCBSM. We disagree, concluding that all of plaintiffs’ proposed claims against the Attorney General fail as a matter of law and, as such, joining the Attorney General would neither have permitted the court to render complete relief nor promoted the convenient administration of justice.
This court reviews a trial court’s rulings on joinder for an abuse of discretion. Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 95; 535 NW2d 529 (1995). An abuse of discretion exists when the court’s decision is so violative of fact and logic as to constitute a perversity of will or a defiance of judgment. Messenger v Ingham Co Prosecutor, 232 Mich App 633, 647; 591 NW2d 393 (1998). Trial courts must consider the following when ruling on a party’s motion for compulsive joinder:
MCR 2.205(A) states that joinder is required of all parties “having such interests in the subject matter of an action that their presence in the action is essential to permit the court to render complete relief” (emphasis added). As this Court found in Troutman v Ollis, 134 Mich App 332, 339-340; 351 NW2d 301 (1984), where a party’s presence in the action is not essential to the court rendering complete relief, factors such as judicial economy or avoidance of multiple litigation are not enough to compel joinder. [Hofmann, supra at 96.]
On the other hand, MCR 2.206(A)(2) provides:
All persons may be joined in one action as defendants
(a) if there is asserted against them jointly, severally, or in the alternative, a right to relief in respect of or arising out of the same transaction, occurrence, or series of trans actions or occurrences and if a question of law or fact common to all of the defendants will arise in the action; or
(b) if their presence in the action will promote the convenient administration of justice. [Emphasis added.]
1. COMPULSORY JOINDER
In regard to plaintiffs’ attempt to join the Attorney-General as a necessary party, we conclude that the trial court did not abuse its discretion because the Attorney General’s presence was not “essential to permit the court to render complete relief....” MCR 2.205(A). Plaintiffs emphasize that the Attorney General may engage in enforcement actions against BCBSM pursuant to MCL 550.1603(4), as well as compel BCBSM to comply with the Act through an ex parte order from the Ingham Circuit Court under MCL 550.1603(5). However, the trial court need not have joined the Attorney General to reach plaintiffs’ desideratum: the end of the alleged false claims activities. In the absence of the Attorney General, the trial court could have issued a declaratory judgment that stated that BCBSM was engaging in ongoing violations of MCL 550.1408, which prohibits false claims activities. If the trial court had issued such a judgment, the Commissioner might have considered penalizing BCBSM pursuant to MCL 550.1605. Also, without joining the Attorney General, the trial court could have compelled the Commissioner to consider plaintiffs’ allegations of false claims activities by BCBSM (if the Commissioner had not already fulfilled this duty pursuant to MCL 550.1603). Finally, as discussed below, plaintiffs’ requests for mandamus against the Attorney General would have failed as a matter of law; consequently, joining the Attorney General would have granted plaintiffs no additional relief. In summary, adding the Attorney General was not “essential to permit the court to render complete relief____” MCR 2.205 (emphasis added).
2. PERMISSIVE JOINDER
In regard to plaintiffs’ attempt to permissively join the Attorney General under MCR 2.206, we conclude that the trial court did not abuse its discretion because plaintiffs’ requests for a writ of mandamus and declaratory relief against the Attorney General fail as a matter of law. MCR 2.206(A)(2)(b).
a. WRIT OF MANDAMUS
Plaintiffs’ request for mandamus would have this Court control the exercise or direction of the Attorney General’s discretion. As such, an action for mandamus against the Attorney General would not lie. Lee, supra at 332-333; In re MCI Telecom Complaint, supra at 442-443. Consequently, this potential cause of action does not justify permissive joinder. MCR 2.206(A)(2). The Attorney General has two sources of authority to enforce the Act. First, the Attorney General may seek an order compelling BCBSM to comply with the Act:
Upon the request of the commissioner, the attorney-general may petition for, and the circuit court may issue, an ex parte order from the circuit court directing a corporation to comply with this section. [MCL 550.1603(5) (emphasis added).]
Second, the Attorney General may seek civil or criminal enforcement of the Act against any person:
If it appears .... that this act or any other law of this state has been violated, the commissioner immediately shall report the violation to the attorney general.... The attorney general shall then take action on the alleged violation, as the facts warrant. [MCL 550.1603(4) (emphasis added).]
While MCL 550.1603(4) and (5) arguably require the Attorney General to at least consider allegations brought to him or her, defendants offer unchallenged evidence that the Commissioner and the Attorney General indeed considered all of plaintiffs’ allegations. Pursuant to MCL 550.1603(4), the Commissioner referred plaintiffs’ allegations regarding the false claims at Kern Hospital to the Attorney General. The Chief Deputy Attorney General performed at least a perfunctory investigation by demanding a written response from BCBSM “explaining the past and present relationship between BCBSM and Kern Hospital and the details of any settlement or other resolution between BCBSM and Kern Hospital involving these allegations.” BCBSM responded, saying that, after discovering through its internal audit process that it had overpaid Kern Hospital by over $3 million, it exacted a settlement of about $1.8 million before Kern Hospital was sold in October 2003. The Health Care Fraud Division of the Attorney General’s office also communicated with the United States Attorney’s office in Detroit for further investigation. When the United States Attorney’s office informed the Attorney General that it was already investigating the matter, the Attorney General chose to not initiate an overlapping investigation. The Attorney General later informed the Commissioner and plaintiffs that, on the basis of its investigations and communications with the United States Attorney’s office, there was “insufficient basis to pursue criminal charges arising out of the allegations referred to us by [the Office of Financial and Insurance Services].” The foregoing shows that the Attorney General investigated the Kern Hospital scheme, thus fulfilling any duty under the Act to consider plaintiffs’ referrals. In regards to the alleged “Grand Rapids schemes,” BCBSM offered an affidavit from its plan administrator, testifying that BCBSM had revoked the provider numbers of the physical therapists who were allegedly mischaracterizing their provider status in Grand Rapids. Plaintiffs’ affidavits do not controvert this testimony; instead, they assert that false claims activities occurred in the past and that BCBSM was sending improper reimbursements to one affiant, apparently to harass her into silence. As such, plaintiffs fail to show that there is any ongoing activity in Grand Rapids that the Attorney General could stop.
Plaintiffs also requested a writ of mandamus compelling the Attorney General to initiate enforcement proceedings against BCBSM and the perpetrators of the false claims activities it discovered. However, they fail to establish that the Attorney General had a “clear legal duty” to engage in these specific enforcement actions pursuant to In re MCI Telecom Complaint, supra at 442-443. As discussed above, MCL 550.1603(5) indicates that the Attorney General “may” seek an ex parte order from the Ingham Circuit Court, and MCL 550.1603(4) indicates that the Attorney General “shall” pursue other actions “as the facts warrant.” Instead of asking that the Attorney General investigate violations of Michigan law, plaintiffs asked the trial court to force the Attorney General to adopt plaintiffs’ enforcement priorities and to engage in specific enforcement actions against BCBSM. While a reasonable person could disagree with the Attorney General’s enforcement priorities and evaluation of plaintiffs’ complaints, the mandamus standard is not a vehicle for a court to put itself in a government official’s shoes. Lee, supra at 332-333. Rather, a trial court must decline to issue a writ of mandamus to compel a particular exercise of discretion. Consequently, plaintiffs’ request for mandamus would not afford them additional relief and therefore would not justify joinder of the Attorney General to “promote the convenient administration of justice.” MCR 2.206(A)(2)(b).
b. DECLARATORY JUDGMENT
Plaintiffs also seek to join the Attorney General so they may request a declaratory judgment that the Attorney General must pursue enforcement actions against BCBSM and its coconspirators in the Kern Hospital and Grand Rapids schemes. We conclude that the cessation of the false claims activities in both of the schemes alleged by plaintiffs likewise ended any “actual controversy.” Without an “actual controversy,” the trial court lacked jurisdiction to consider plaintiffs’ request for declaratory relief. Plaintiffs’ request for declaratory relief would not have afforded them additional relief and therefore did not justify joinder of the Attorney General to “promote the convenient administration of justice.” MCR 2.206(A)(2)(b).
MCR 2.605(A)(1) empowers the circuit court to issue a declaratory judgment in “a case of actual controversy .. . .” The existence of an actual controversy is a condition precedent to invocation of declaratory relief. Citizens for Common Sense in Gov’t, supra at 54-55. An actual controversy exists
where a declaratory judgment is necessary to guide a plaintiffs future conduct in order to preserve the plaintiffs’ legal rights. “[W]hat is essential to an ‘actual controversy’ under the declaratory judgment rule is that plaintiff plead and prove facts which indicate an adverse interest necessitating a sharpening of the issues raised.” Generally, where the injury sought to be prevented is merely hypothetical, a case of actual controversy does not exist. [Id. at 55 (citations omitted).]
Moreover, the language of MCR 2.605 is permissive rather than mandatory; thus, it rests with the sound discretion of the court whether to grant declaratory relief. Lake Angelus, supra at 377 n 7.
Plaintiffs’ request for declaratory relief fails under each of the factors listed above. Citizens for Common Sense in Gov’t, supra at 55. First, plaintiffs failed to show how a declaratory judgment in their favor in regard to the Attorney General’s duties under part 6 of the Act would “guide [their] future conduct.” Id. Plaintiffs’ only recourse under the Act against false claims is to refer their allegations to the Commissioner and the Attorney General; there is no viable alternative course to preserve their rights. See MCL 550.1603. Second, plaintiffs have not shown that they have any right to a particular share of the rehabilitation therapy market or BCBSM’s physical therapy business, and thus they do not have “ ‘an adverse interest necessitating a sharpening of the issues raised.’ ” Citizens for Common Sense in Government, supra at 55 (citation omitted). Third, BCBSM’s uncontroverted evidence of the cessation of false claims activities renders injuries to plaintiffs’ business expectancies “merely hypothetical.” Id. We therefore affirm the trial court’s order denying compulsory and permissive joinder of the Attorney General as a defendant.
E. AMENDMENT OF PLAINTIFFS’ COMPLAINT
Plaintiffs allege that the trial court abused its discretion in denying them leave to file a third amended complaint that (1) added the Attorney General as a party for the purposes of seeking declaratory relief and a writ of mandamus compelling the Attorney General to engage in particular enforcement activities, (2) added new factual allegations regarding the Kern Hospital scheme, and (3) added new arguments interpreting this Court’s ruling in PT Today II as it related to plaintiffs’ challenge to the Commissioner’s interpretation of the part 5 PCP review process. We conclude that the trial court exercised sound discretion in denying plaintiffs leave to file their third amended complaint in regard to the Attorney General because such an amendment would have been futile. We further conclude that, while the trial court erred in denying plaintiffs leave to file a more limited amendment that addresses this Court’s decision in PT Today II and newly discovered information about the Kern Hospital scheme, any abuse of discretion by the trial court on this matter constituted harmless error because nothing in the amended complaint would have averted summary disposition.
The grant or denial of leave to amend pleadings is within the trial court’s discretion. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). But that discretion is not boundless; the trial court must make findings regarding whether justice is served by the amendment. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 658; 213 NW2d 134 (1973); Terhaar v Hoekwater, 182 Mich App 747, 751; 452 NW2d 905 (1990). This Court will not reverse a trial court’s decision regarding leave to amend unless it constituted an abuse of discretion that resulted in injustice. See Cassibo v Bodwin, 149 Mich App 474, 477; 386 NW2d 559 (1986). An abuse of discretion exists if the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. Franchino v Franchino, 263 Mich App 172, 193; 687 NW2d 620 (2004). There is no injustice if the proceedings would have reached the same result if the trial court had not denied a party leave to amend its pleadings. Cassibo, supra at 477.
The rules pertaining to the amendment of pleadings are designed to facilitate amendment except when prejudice to the opposing party would result; amendment is generally a matter of right rather than grace. Ben P Fyke, supra at 659. Thus, a motion to amend should ordinarily be denied only for particularized reasons, including undue delay, bad faith or a dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or futility. Weymers, supra at 658; Franchino, supra at 189-190. The trial court must specify its reasons for denying leave to amend, and the failure to do so requires reversal unless the amendment would be futile. See Franchino, supra at 190.
The trial court denied plaintiffs leave to amend their complaint because their amendments would be futile. An amendment would be futile if (1) ignoring the substantive merits of the claim, it is legally insufficient on its face, Hakari v Ski Brule, Inc, 230 Mich App 352, 355; 584 NW2d 345 (1998); (2) it merely restates allegations already made; or (3) it adds a claim over which the court lacks jurisdiction, Lane v KinderCare Learning Centers, Inc, 231 Mich App 689, 697; 588 NW2d 715 (1998). In this case, plaintiffs’ proposed claims against the Attorney General constituted the larger share of the amendments in their proposed third amended complaint. These complaints would have failed as a matter of law, as discussed in part III(D) of this opinion. Consequently, these amendments were “ legally insufficient on [their] face’ ” and did not justify amendment. Hakari, supra at 355, quoting Gonyea v Motor Parts Fed Credit Union, 192 Mich App 74, 78; 480 NW2d 297 (1991).
Plaintiffs’ proposed third amended complaint also included new pleadings regarding this Court’s decision in PT Today II as it related to their procedural due process claim against the Commissioner, as well as additional facts to bolster their claims regarding the false claims activities. MCR 2.118(E) provides that the court may, “on reasonable notice and on just terms, permit the party to serve a supplemental pleading to state transactions or events that have happened since the date of the pleading sought to be supplemented ....” In this case, all parties anticipated changes related to the development of the PT Today II suit, and insofar as the amendments related to developments in that suit, the trial court should have granted leave to amend. MCR 2.118(E). Moreover, neither defendant was prejudiced by the amendments to plaintiffs’ pleadings in regards to PT Today II and the PCP review process, given that they sought repeated stays pending this Court’s decision — over plaintiffs’ objections. As such, the trial court abused its discretion in denying plaintiffs leave to amend their complaint to reflect this Court’s decision in PT Today II.
However, this abuse of discretion did not constitute error requiring reversal because nothing in the proposed amendments would have averted summary disposition, which the trial court granted but one month later. See Cassibo, supra at 477. The trial court granted summary disposition in favor of the Commissioner on plaintiffs’ request for mandamus because, as a matter of law, the trial court could not compel the Commis sioner to exercise discretion in a particular way, as plaintiffs desired. It ruled in favor of the Commissioner on plaintiffs’ requests for declaratory judgment because PT Today II mooted plaintiffs’ procedural due process claims. Plaintiffs’ proposed amendments merely acknowledged this Court’s decision in PT Today II and argued that plaintiffs still had a valid procedural due process claim. Even if the trial court had granted plaintiffs leave to file these amendments, the trial court would have granted summary disposition in favor of the Commissioner on plaintiffs’ request for declaratory relief because plaintiffs’ pleadings failed to show that their claim was not moot. Id. In conclusion, we note that the trial court erred in denying amendments to plaintiffs’ complaint, but affirm because the trial court’s failure was harmless error.
F. RES JUDICATA AND PLAINTIFFS’ TORTIOUS INTERFERENCE CLAIMS
Plaintiffs next appeal the trial court’s order granting summary disposition in favor of BCBSM on plaintiffs’ claims of tortious interference with a business interest. We conclude that the trial court erred in granting summary disposition based on the theory of res judicata because plaintiffs’ claims of tortious interference in PT Today I were premised on BCB-SM’s differential reimbursement scheme, whereas plaintiffs’ claims of tortious interference in the instant case are premised on fraudulent billing activities, which were not part of the same transaction or occurrence. Additionally, the doctrine of res judicata does not apply to this case because, after exercising due diligence in trying to add the false claims tortious interference count to PT Today I, plaintiffs were not allowed to do so.
The applicability of res judicata is a question of law that is reviewed de novo. Pierson Sand & Gravel, Inc v Keeler Brass Co, 460 Mich 372, 379; 596 NW2d 153 (1999). A party’s claim is barred by the doctrine of res judicata when (1) the prior action was decided on the merits, (2) the decree in the prior action was a final decision, (3) the matter contested in the second case was or could have been resolved in the first, and (4) both actions involved the same parties or their privies. See Baraga Co, supra at 269; Adair v Michigan, 470 Mich 105, 121; 680 NW2d 386 (2004).
In this case, plaintiffs correctly argue that, while their causes of action have the same name in PT Today I and the instant case, they have distinct factual bases. Plaintiffs’ tortious interference claims in PT Today I were based on BCBSM’s differential reimbursement of hospital physical therapists and independent physical therapists. In the instant case, however, plaintiffs argue that BCBSM is violating its own reimbursement scheme under the 1997 PCP and the 2000 modified PCI) as well as MCL 550.1408. These transactions and occurrences are removed from each other in time, subject matter, and legal basis. Moreover, they require different factual proofs. In PT Today I, plaintiffs would have to have proved that the PCP was discriminatory, that the Act proscribed discriminatory reimbursements, and that this discrimination reduced plaintiffs’ market share; in the instant case, plaintiffs must prove that BCBSM knowingly promoted the mischaracterization of claims, that this mischaracterization was unlawful, and that this mischaracterization reduced plaintiffs’ market share. If different facts or proofs would be required, res judicata does not apply; consequently, res judicata does not apply to the instant case. VanDeventer v Michigan Natl Bank, 172 Mich App 456, 464; 432 NW2d 338 (1988).
Additionally, plaintiffs convincingly argue that they were unable to litigate the instant tortious interference claims in PT Today I. Plaintiffs claim (without challenge from defendants) that they were not privy to the information on which they base the instant tortious interference claims until PT Today I was already on appeal. Plaintiffs diligently attempted to reopen the proceedings to introduce these new facts, but were barred from doing so by this Court. Consequently, plaintiffs’ tortious interference claims that arise out of BCBSM’s alleged false claims activities were neither actually litigated nor litigable after plaintiffs exercised reasonable diligence. Therefore, they should not have been barred by the doctrine of res judicata. Adair, supra at 121. Additionally, because these facts arose after PT Today I had reached this Court, plaintiffs’ claims would likely also be saved from res judicata because they are changed facts or new facts. See In re Pardee, 190 Mich App 243, 248; 475 NW2d 870 (1991).
In conclusion, the trial court erred in dismissing plaintiffs’ tortious interference claims on the basis of the doctrine of res judicata. However, as discussed in parts III(G) and (H) of this opinion, plaintiffs’ victory on this issue fails to rescue their tortious interference claims. As such, we conclude that the trial court reached the right conclusion for the wrong reasons and should be affirmed. Gleason v Dep’t of Transportation, 256 Mich App 1, 3; 662 NW2d 822 (2003).
G. STANDING AND PLAINTIFFS’ TORTIOUS INTERFERENCE CLAIMS
Plaintiffs appeal the trial court’s order granting summary disposition in favor of BCBSM on the grounds that plaintiffs had no standing to bring a private cause of action against BCBSM under the Act. We conclude that the trial court correctly granted summary disposition in light of this Court’s interpretation of the Act in BPS Clinical Laboratories v Blue Cross & Blue Shield of Michigan (On Remand), 217 Mich App 687, 698; 552 NW2d 919 (1996).
The trial court dismissed plaintiffs’ claims of tortious interference with a business relationship. The elements of tortious interference with a business relationship or expectancy are (1) the existence of a valid business relationship or expectancy, (2) knowledge of the relationship or expectancy by the interferer, (3) an intentional and wrongful interference inducing or causing a breach or termination of the relationship or expectancy, and (4) resultant damage to the party whose relationship or expectancy was disrupted. See Badiee v Brighton Area Schools, 265 Mich App 343, 365-366; 695 NW2d 521 (2005). In this case, plaintiffs sought to establish the third element of this cause of action, intentional and wrongful interference, with evidence that BCBSM violated MCL 550.1408.
This Court reviews rulings on motions for summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Statutory interpretation, as a question of law, is likewise reviewed de novo. Adams v Linderman, 244 Mich App 178, 184; 624 NW2d 776 (2000).
However, in BPS Clinical Laboratories, this Court definitively stated that the Act “does not grant a health care provider the right to sue a health care corporation directly” and that “[o]nly the Attorney General and the Insurance Commissioner are entitled to enforce the act directly against a health care corporation,” pursuant to MCL 550.1619(2) and (3). BPS Clinical Laboratories, supra at 698. The Court described the preemptive effects of the Act in detail:
The only private right of action directly against a health care corporation authorized by the act is an action by a subscriber against a health care corporation for damages. ... Because this statute only explicitly allows a private right of action by a subscriber, we conclude that no other private rights of action directly against a health care corporation are authorized. See Williams v Coleman, 194 Mich App 606, 613; 488 NW2d 464 (1992). The relief sought by plaintiffs regarding the enforcement of Act 350 is available through the procedure set forth in MCL 550.1619(3).... Plaintiffs may commence an action in the Ingham Circuit Court to compel the Insurance Commissioner to enforce the act. [Id. (emphasis added).]
MCL 550.1408 is part of the Act. By premising their claims on a violation of MCL 550.1408, plaintiffs are in effect using a common-law cause of action as a vehicle to enforce the Act. We have spoken definitively on this tactic: only subscribers and the Attorney General may sue BCBSM for violating the Act. To rule otherwise would damage the Act, which ensures uniform and streamlined regulation of BCBSM’s PCPs.
H. CAUSATION AND PLAINTIFFS’ TORTIOUS INTERFERENCE CLAIMS
Plaintiffs also appeal the trial court’s grant of summary disposition on their claims of tortious interference with a business relationship or expectancy on the grounds that plaintiffs failed to show a harm or a causal connection between the allegedly illegal activities and their injuries. The trial court dismissed the claim under MCR 2.116(C)(10), under which summary disposition of all or part of a claim or defense may be granted when, “[ejxcept 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.” While the movant has the initial burden of showing that there are no disputed issues of material fact, MCR 2.116(G)(4), a nonmovant who would have the burden of proof at trial may not rest on mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial, Quinto, supra at 362. The existence of a disputed fact must be established by admissible evidence, MCR 2.116(G)(6); a mere promise to offer factual support at trial is insufficient, Maiden, supra at 121.
We enumerated the elements of tortious interference with a business relationship or expectancy in part III(G) of this opinion. In regard to the harm suffered, plaintiffs must show that their business expectancy is a reasonably likely or probable expectancy. First Pub Corp v Parfet, 246 Mich App 182, 199; 631 NW2d 785 (2001), affd in part and vacated in part on other grounds 468 Mich 101 (2003). Plaintiffs state in a conclusory fashion that BCBSM has a significant effect on the physical therapy market and on federal funds available for health care, but they fail to plead that BCBSM’s alleged schemes damaged any business relationship or expectancy that had a reasonable likelihood of fruition. Id. On appeal, plaintiffs offer to provide such proofs at trial, but this mere promise to offer factual support at trial is insufficient. Maiden, supra at 121. We therefore affirm the trial court’s grant of summary disposition because plaintiffs’ tortious interference claim failed for lack of causation.
I. PROTECTIVE ORDERS
Finally, plaintiffs argue that the trial court abused its discretion in granting BCBSM a protective order shielding its officers from being deposed when plaintiffs offered affidavits alleging that these officers played a direct role in orchestrating false claims schemes. We conclude that plaintiffs failed to preserve their objection for appellate review.
A trial court’s decision whether to grant a protective order limiting discovery is reviewed for an abuse of discretion. See MCR 2.302(C)(1). MRE 103 aids this Court in evaluating whether a trial court’s evidentiary rulings constitute an abuse of discretion:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
For similar reasons, this Court will refuse to consider issues for which the appellant failed to produce the transcript. Myers v Jarnac, 189 Mich App 436, 443-444; 474 NW2d 302 (1991); People v Coons, 158 Mich App 735, 740; 405 NW2d 153 (1987).
In this case, plaintiffs complain about the trial court’s grant of a protective order for executive officials of BCBSM, but fail to cite the record or provide a transcript of the hearing regarding the protective order. The trial court’s protective order states that the order was granted “for the reasons more fully set forth on the record....” Without this transcript, this Court can determine neither the trial court’s reasoning for granting the order nor whether plaintiffs made a persuasive offer of proof in accord with MRE 103. Moreover, in their brief on appeal, plaintiffs do not state how this affects “the substantial right of a party,” as required by MRE 103; rather, they leave it to this Court to justify their characterization. Wilson, supra at 243. Finally, even if plaintiffs were to establish that the trial court abused its discretion in granting the protective order, their claims against BCBSM fail as a matter of law, as discussed above. Accordingly, we affirm the trial court’s grant of a protective order.
IV CONCLUSION
In this exceedingly complex case, we affirm the trial court’s grant of summary disposition in favor of defendants.
This litigation spans two administrations, two commissioners, and two attorneys general. However, neither the Commissioner’s statutory duties nor the official policy of the Commissioner in regard to this litigation have changed over the duration of the suit.
The statute is also referred to colloquially as “Act 350.”
Providers benefit from inclusion in a PCí¡ because BCBSM refers its subscribers to class members and allows class members to use an official symbol to show subscribers that BCBSM reimburses them. MCL 550.1502(4) and (5).
The details of this are unimportant to the instant case.
For the purposes of MCL 550.1509, the filing of a modified PCP does not change the timing requirements. MCL 550.1508(2).
The IHO’s qualifications are described in MCL 550.1514. “An appeal from an independent hearing officer shall be conducted pursuant to chapter 6 of the administrative procedures act, except that the appeal shall be taken within 30 days after the final determination, upon leave granted, in the court of appeals.” MCL 550.1518.
This PCP applied to IPTs only. OPTs operated under a different PCP that reimbursed them at higher levels.
The Attorney General had filed a related complaint against BCBSM in the Ingham Circuit Court. The trial court granted summary disposition in favor of BCBSM, and the Attorney General did not appeal.
The parties refer to the separate PCP for OPTs as the “Physical Therapy PCP”
All parties agree that this modified PCP did not end the PCP review process or address plaintiffs’ concerns regarding differential reimbursement to IPTs and OPTs. Additionally, the modified PCP included provider agreements that required IPTs to earn Medicare certification, which plaintiffs claim was no longer required under Medicare.
The Court stated:
The [Commissioner’s] determination should not be disturbed unless it is clearly wrong. However, despite the IHO’s reference to this standard, we conclude that his opinion does nothing to show that the [Commissioner’s] analysis regarding the statutory goals was clearly wrong, but merely indicates that the [Commissioner] did not consider any impact of the differential in payment between hospital and non-hospital physical therapy providers. ... In essence the IHO substituted his fact finding in derogation of the [Commissioner’s] expertise. [PT Today II, supra, slip op at 7.]
MCR 2.605(A) provides, in relevant part:
(1) In a ease of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could he sought or granted.
(2) For the purpose of this rule, an action is considered within the jurisdiction of a court if the court would have jurisdiction of an action on the same claim or claims in which the plaintiff sought relief other than a declaratory judgment.
The Act, if anything, provides for a relatively wide variability in how BCBSM’s PCPs affect market share. The only “rights” afforded4 plaintiffs by part 5 of the Act are purely procedural. These include (1) the right to comment during the review of a PCR MCL 550.1505 and 550.1509(4)(e); (2) the right to comment during the review of a modified PCR MCL 550.1508(2); (3) the right to appeal the Commissioner’s decision to retain or not retain a PCP MCL 550.1515(1); and (4) the right to comment during the preparation of a PCP pursuant to an IHO’s order, MCL 550.1515(4). Indeed, under MCL 550.1509(4)(e), no particular provider is even entitled to a review. Rather, BCBSM is merely required to consult with at least one organization representing the provider group. See MCL 550.1505(1). At the trial level, plaintiffs claimed that BCBSM failed to notify them of the modified PCP; however, plaintiffs abandoned this argument on appeal.
Concluding that plaintiffs’ challenge to the PCP review process is moot does not dispose of the instant issue. PT Today II did not concern plaintiffs’ allegations of false claims activities by BCBSM, for which plaintiffs request a writ of mandamus requiring particular enforcement activities by the Commissioner and the Attorney General.
The Court need not have located these statutes, because plaintiffs fail to cite proper authority on appeal. Silver Creek Twp v Corso, 246 Mich App 94, 99; 631 NW2d 346 (2001).
See MCR 2.118(A).
While it does not appear to be the case from the trial record, we note that a trial court may not let its view of the merits of the case affect its decision to grant or deny leave for amendment of the pleadings. Commodities Export Co v Detroit, 116 Mich App 57, 71; 321 NW2d 842 (1982).
Plaintiffs sometimes refer to this provision as the “False Claims Act.”
Plaintiffs’ argument regarding the single-object requirement for statutes is raised for the first time on appeal. “Since the issue currently discussed was neither pleaded, nor mentioned at pretrial, nor the subject of proper amendment at trial,” we note that, “it may not be raised for the first time at final argument or on appeal.” Ewing v Heathcott, 348 Mich 250, 255; 83 NW2d 210 (1957). Also, this argument indicates a failure by plaintiffs to notify the Court that they seek to invalidate a statute. MCR 7.212(C)(1). | [
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JANSEN, J.
Respondent, Department of Treasury, appeals as of right a Tax Tribunal judgment finding in part that petitioner, Twentieth Century Fox Home Entertainment, Inc., is a film distributor and, therefore, is not required to include the royalty payments it makes to film producers in its tax base. We affirm.
Petitioner distributes copyrighted motion pictures for home entertainment primarily using the medium of videocassettes. In 1997, respondent asserted that petitioner had outstanding tax liability under the Single Business Tax Act (SBTA), MCL 208.1 et seq., totaling more than $500,000 for the tax years ending on June 30, 1991; June 28, 1992; June 27, 1993; and July 3, 1994. This liability resulted in large part from respondent’s assertion that petitioner was required to add to its tax base payments it made to motion picture producer Twentieth Century Fox Film Corporation (Fox Film).
Petitioner filed a petition in the Tax Tribunal asserting that the payments it made to Fox Film were not royalty payments, and, therefore, it was not required to add them to its tax base. Petitioner further contended that even if the payments were royalty payments, because it is a film distributor, the payments it made to Fox Film after July 14, 1993, were not required to be added to its tax base pursuant to the SBTA amendments made by 1996 PA 347. Following a hearing on the matter, a hearing officer issued a proposed opinion and judgment holding that the payments petitioner made to Fox Film were royalty payments, but petitioner was a film distributor, entitling it to not include in its tax base the payments it made to Fox Film after July 14, 1993. Over objections, the Tax Tribunal adopted the judgment of the proposed opinion.
Respondent contends on appeal that an entity whose principal business activity is the distribution of copyrighted motion pictures in cassette form for private home entertainment is not a film distributor for purposes of MCL 208.9(4)(g)(cii).
In Michigan Milk Producers Ass’n v Dep’t of Treasury, 242 Mich App 486, 490-491; 618 NW2d 917 (2000), this Court provided the following for review of Tax Tribunal decisions:
This Court’s authority to review a decision of the Tax Tribunal is very limited. In the absence of an allegation of fraud, this Court’s review of a Tax Tribunal decision is limited to determining whether the tribunal committed an error of law or adopted a wrong legal principle. The tribunal’s factual findings will not be disturbed as long as they are supported by competent, material, and substantial evidence on the whole record. [Citations omitted.]
Resolution of this issue also involves a question of statutory interpretation. Statutory interpretation presents a question of law that is reviewed de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). Yet “[t]his Court will generally defer to the Tax Tribunal’s interpretation of a statute that it is charged with administering and enforcing.” Michigan Milk Producers Ass’n, supra at 491.
The single business tax (SBT) is a “consumption-type value-added tax” that is subject to certain exemptions, exclusions, and adjustments. Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400, 408-409; 488 NW2d 182 (1992). Generally, in calculating its tax base for SBTA purposes, a taxpayer must add to its business income all royalties to the extent that they were deducted in arriving at federal taxable income. MCL 208.9(4) (g); Field Enterprises v Dep’t of Treasury, 184 Mich App 151, 153; 457 NW2d 113 (1990). “A related provision requires that the taxpayer deduct royalties, to the extent included in arriving at federal taxable income, in determining its tax base.” Id., citing MCL 208.9(7)(c). Kent is not included in determining the payer’s tax base. Field Enterprises, supra at 154.
In 1990, a television station operator sought a tax refund in the Court of Claims, asserting that the defendant, the Department of Treasury, had improperly considered payments it made to a television show distributor under an exclusive license as royalties rather than rent. Field Enterprises, supra at 152-153. This Court disagreed and found that the payments were royalties, and, accordingly, were properly included in the taxpayer’s tax base. Id. at 157.
Before the decision in Field Enterprises, petitioner deducted from its tax base those payments it made to film distributors and included in its tax base payments it received from videocassette distribution. Following Field Enterprises, respondent asserted that petitioner was required to add to its tax base, as royalties, the payments it made to film producers, though it could also deduct any royalties it received from sublicensees, MCL 208.9(7)(c).
Subsequently, the Legislature adopted 1993 PA 105, which excepted from the royalties that had to be added to and deducted from the payer’s tax base, depending on federal tax treatment, those royalties paid by television or radio broadcasters for program matter or signals, MCL 208.9(4)(g)(ui); MCL 208.9(7)(c)(u), and “[flilm rental payments made by a theater owner to a film distributor,” MCL 208.9(4)(g)(c); MCL 208.9(7)(c)(iv). Following the enactment of this legislation, film distributors had to include in their tax base any royalties they paid to film producers, MCL 208.9(4)(g), but could not deduct from their tax base the royalties they received from theater owners, MCL 208.9(7)(c)(ic).
The Legislature amended the statute again through 1996 PA 347, which added “Royalties, fees, charges, or other payments or consideration paid by a film distributor for copyrighted motion picture films, program matter, or signals to a film producer” to the list of the types of royalties that did not have to be added or deducted from the payer’s business income in determining its tax base. MCL 208.9(4)(g)(cii); MCL 208.9(7)(c)(ci). Thus, it permitted a film distributor to not include in its tax base the royalty payments it made to film producers, MCL 208.9(4)(g)(cii), but prohibited film producers from deducting royalty payments they received, MCL 208.9(7)(c)(vi). 1996 PA 347 was given retroactive effect to the effective date of 1993 PA 105, i.e., July 15, 1993.
In the Tax Tribunal, petitioner asserted, and the tribunal agreed, that as a videocassette distributor, it was a film distributor and, therefore, was not required to include royalty payments it made to film producers in its SBT base, pursuant to MCL 208.9(4)(g)(cii). Contrarily, respondent has asserted that petitioner is not a film distributor and, therefore, must include the payments it has made to film producers in its SBT base.
The purpose of judicial interpretation of statutes is to ascertain and give effect to legislative intent. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). “If a statute is clear, it must be enforced as plainly written. However, if a statute is susceptible to more than one interpretation, judicial construction is proper to determine legislative intent. Statutory language should be construed reasonably, keeping in mind the purpose of the act.” People v Spann, 250 Mich App 527, 530; 655 NW2d 251 (2002) (citations omitted), aff'd 469 Mich 904 (2003). Courts may consult dictionary definitions to determine the ordinary meaning of undefined statutory terms. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002).
The Legislature failed to define the term “film distributor” in the SBTA. The word “film” itself has multiple definitions that are used in common parlance. For instance, “film” has been defined as “a cellulose nitrate or cellulose acetate composition made in thin sheets or strips and coated with a light-sensitive emulsion for taking photographs or motion pictures” and as a “motion picture” itself. Random House Webster’s College Dictionary (2000). Thus, the term “film distributor” could arguably apply to one who distributes motion pictures, including those distributed through the medium of videocassettes, or to one who distributes cellulose strips coated with a light-sensitive emulsion onto which motion pictures have been recorded.
In seeking to determine legislative intent on the basis of the plain language of the statute, we note that a “film distributor” could only be expected to pay royalties to a “film producer” for “copyrighted motion picture films” if a motion picture had already been recorded onto the relevant “film.” MCL 208.9(4)(g)(cii). This suggests that it is the distribution of the motion picture, and not the physical medium, with which the Legislature was concerned. The Legislature’s use of the phrase “copyrighted motion picture films” in the statute, however, seems to suggest a different result. Specifically, the Legislature would not have needed to include the descriptive phrase “motion picture” if that descriptor had been inherent in the use of the word “film” alone. However, when read in context, it appears that the Legislature’s use of the phrase “copyrighted motion picture films” was only setting forth one type of “film” a “film distributor” might pay a film producer for the use of. In fact, the Legislature indicates that a “film distributor” might also pay a film producer for other “program matter” and “signals” as well. MCL 208.9(4) (g)(cii). Taken together, this language indicates that the Legislature did not intend to limit the term “film distributor” to those who only distribute motion pictures on strips of emulsion-coated cellulose.
Accordingly, the language of MCL 208.9(4)(g)(cii) indicates that one need not distribute motion pictures on strips of emulsion-coated cellulose to be classified as a “film distributor.” Nor does the plain language of the statute indicate that a film distributor has to distribute films to theaters in order to be considered a film distributor, as respondent has interpreted the statute. Nothing will be read into a clear statute that is not within the manifest intention of the Legislature as derived from the language of the statute itself, Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002), and courts may not speculate about the probable intent of the Legislature beyond the language expressed in the statute, Cherry Growers, Inc v Agricultural Marketing & Bargaining Bd, 240 Mich App 153, 173; 610 NW2d 613 (2000). Therefore, under the plain language of the statute, the Tax Tribunal correctly determined that petitioner is a film distributor for purposes of MCL 208.9(4) (g)(cii) and is not required to add to its business income the royalties it pays to film producers in order to calculate its SBT base.
Even if MCL 208.9(4)(g)(cii) is reasonably susceptible to more than one interpretation, and we apply the rules of judicial construction, Spann, supra at 530, the result does not change. Respondent cites the legislative history of the SBTA royalty exceptions as support for its position that the Legislature only intended the royally exception contained in MCL 208.9(4)(g)(cii) to apply to distributors of films to movie theaters and not to home videocassette distributors such as petitioner. A legislative analysis is a “generally unpersuasive tool of statutory construction.” Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587; 624 NW2d 180 (2001). “The problem with relying on bill analyses is that they do not necessarily represent the views of even a single legislator.” Id. at 588 n 7. Nevertheless, “[cjourts may look to the legislative history of an act, as well as to the history of the time during which the act was passed, to ascertain the reason for the act and the meaning of its provisions.” People v Schut, 265 Mich App 446, 451; 695 NW2d 551, rev’d on other grounds 474 Mich 865 (2005); see also People v Hall, 391 Mich 175, 191; 215 NW2d 166 (1974).
In this regard, respondent cites a House legislative analysis of 1993 PA 105 that indicates that, following Field Enterprises, movie theater owners sought an amendment of the SBTA to exclude payments made by theater owners to film distributors from their SBT base. House Legislative Analysis, HB 4857, June 17, 1993, p 1. The analysis further indicates that distributors would be liable for additional taxes under the bill because it would not permit them to deduct from their tax base royalties they received from theater owners. Id.
According to a Senate legislative analysis of 1996 PA 347, the later legislation was intended to allow film distributors to “exclude” from their SBT base royalty payments made to film producers, such that “the bill would treat film distributors in the same manner that theater owners are treated, and generally tax the distributors in the same manner that they were taxed before” the decision in Field Enterprises. Senate Legislative Analysis, SB 880 (Substitute S-2), April 29,1996, P 2.
Considering the relevant changes in the SBTA and the historical legal development of those changes, respondent argues that because 1993 PA 105 was intended to alleviate the tax burden on theater owners and because 1996 PA 347 was enacted only as a result of the consequences of 1993 PA 105, the “film distributors” referred to in 1996 PA 347 must be distributors of films to theaters and not distributors of videocassettes for the home market. Contrarily, petitioner asserts that, like distributors of films to theaters, it was subjected to an unexpected tax burden following Field Enterprises because it had to include royalty payments it paid to film producers in its tax base, but could not subtract from its tax base payments it received from video stores and other consumers, just as other film distributors could not subtract payments they received from theaters. Considering these arguments, we conclude that, while respondent’s legislative analysis is appealing, without more it cannot overcome the language of the statute itself, which suggests a contrary result, as explained above. See Roberts, supra at 63; Cherry Growers, supra at 173.
Respondent also asserts that if the statute is interpreted as petitioner desires, the statute will have the unintended consequence of allowing petitioner to avoid taxation by sublicensing its distribution rights. If petitioner undertakes such sublicensing, then under its interpretation of the statute it can omit from its tax base the payments it makes to film producers, while also excluding as royalties the payments it receives from its sublicensees. Respondent argues that such an outcome creates a windfall for petitioner. On the other hand, petitioner argues that the Legislature intended through 1993 PA 105 and 1996 PA 347 to shift the tax burden to film producers, that under its interpretation of the statute it is not being treated any differently from other film distributors, and that the Legislature intended to place the incidence of tax on any sublicensee, who would be taxed on the payments it makes to the distributor/sublicensor. Again, considering the foregoing, we conclude that respondent’s argument is insufficient to support a conclusion that the Legislature intended that only distributors of films to theaters be entitled to take advantage of MCL 208.9(4)(g)(cii). As the Tax Tribunal stated:
[UJnder a pure value added tax, a firm that earns only royalty income is not taxed on the income. If such a firm has no related royalty expense, then it has no corresponding addback. This is not a windfall — it is inherent to a value added tax. It may appear unfair to allow a firm to conduct business activity within this state and pay no tax on its royalty income, but such is the nature of a value-added tax.
As noted above, this Court generally defers “to the Tax Tribunal’s interpretation of a statute that it is charged with administering and enforcing.” Michigan Milk Producers Ass’n, supra at 491. Considering the foregoing legal arguments and rules of statutory construction, we conclude that the Tax Tribunal did not commit an error of law in determining that petitioner is a film distributor for purposes of MCL 208.9(4)(g)(cii).
Affirmed.
1996 PA 347 also amended MCL 208.9(4)(g)(u) and (7)(c)(iv), added in 1993, to except “[flilm rental or royalty payments paid by a theater owner to a film distributor, a film producer, or a film distributor and producer.”
See Advanta Nat’l Bank v McClarty, 257 Mich App 113, 120; 667 NW2d 880 (2003) (considering such changes in the law of construction liens in its statutory analysis). | [
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COOPER, EJ.
The Livonia defendants appeal as of right from a circuit court order denying their motion for summary disposition on the ground of governmental immunity. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiffs twin brother, Carnelle Kendricks, apparently committed a felony offense in Livonia. He evaded Livonia officers and entered Detroit, where he was arrested. The Detroit officers informed the Livonia officers “of the arrest of Carnelle Kendricks a/k/a Cardelle Kendricks with reference to a fleeing and eluding and UDAA offense in Livonia.” The Livonia officers subsequently arrested plaintiff, and allegedly ignored his protestations that it was his brother they wanted. Plaintiff was held in jail pending trial for seven months until his claim of mistaken identity was confirmed. Defendants sought summary disposition on the ground that they were immune from liability. Defendants’ motion was brought under MCR 2.116(C)(7), but the trial court treated it as having been brought under MCR 2.116(C)(8) and denied it, finding that plaintiff had alleged facts sufficient to demonstrate recklessness.
An order denying governmental immunity is appealable as of right. MCR 7.202(6)(a)(v); MCR 7.203(A)(1). Governmental immunity is not an affirmative defense proffered by governmental defendants, but rather is a characteristic of government; therefore “a party suing a unit of government must plead in avoidance of governmental immunity.” Mack v Detroit, 467 Mich 186, 203; 649 NW2d 47 (2002). To be effective, such pleading must state a claim that fits within a statutory exception to immunity or include facts that indicate the action at issue was outside the exercise of a governmental function. Id. at 204. Plaintiff here alleged facts indicative of gross negligence by defendants, and the trial court found sufficient indicia of gross negligence to determine that plaintiff had pleaded in avoidance of immunity. MCL 691.1407(2)(c). The effect of the ruling was that defendants were not entitled to immunity, and that ruling is reviewable as of right. McDowell v Detroit, 264 Mich App 337, 342-344; 690 NW2d 513 (2004). Further, the trial court entered an order for a stay pursuant to MCR 7.209(E)(4) stating that it “denied summary disposition based upon governmental immunity” as to the Livonia defendants. That order provides further evidence that the order denying summary disposition was, essentially, an order denying governmental immunity, thus providing defendants with an appeal as of right.
We review the trial court’s ruling on a motion for summary disposition de novo. Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000). Governmental immunity is a question of law that is also reviewed de novo on appeal. Pierce v City of Lansing, 265 Mich App 174, 176; 694 NW2d 65 (2005).
An employee of a governmental agency acting within the scope of his or her authority is immune from tort liability unless the employee’s conduct amounts to gross negligence that is the proximate cause of the injury. MCL 691.1407(2). Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(2)(c). Relevant to the disposition of this action, “ [s]ummary disposition is precluded where reasonable jurors honestly could have reached different conclusions with respect to whether a defendant’s conduct amounted to gross negligence.” Stanton v Battle Creek, 237 Mich App 366, 375; 603 NW2d 285 (1999), affd 466 Mich 611 (2002).
The dissent asserts that “[defendants were not grossly negligent in arresting plaintiff” because their mistake was reasonable. Post at 684. We agree that the mistake was reasonable at the point of arrest, and might be inclined to agree that a delay of a day or even several days before investigating plaintiffs claim of mistaken identity could have been reasonable under these circumstances. But we cannot agree that holding plaintiff without investigating the claim for seven months was even remotely reasonable. This man remained incarcerated for over half a year because of this grievous error. We therefore agree with the trial court because we find sufficient indicia of gross negligence to create a genuine issue of material fact, and therefore find summary disposition on the ground of governmen tal immunity inappropriate. We believe reasonable jurors could reach the conclusion that defendants were grossly negligent.
Plaintiff alleged that when he was arrested by Livonia officers he informed them that his twin brother was in fact the person they sought. The officers ignored plaintiffs claim of mistaken identity, and plaintiff was held in jail pending trial for seven months until his claim of mistaken identity was confirmed. Defendants had access to fingerprints and photographs of both plaintiff and his brother throughout the seven months, and could have easily confirmed plaintiffs identity with this readily accessible information. Defendants’ failure to investigate plaintiffs claim of mistaken identity certainly caused an egregious injury, here seven months of deprivation of freedom. The question of whether the officers’ conduct demonstrated a sufficient lack of concern to constitute gross negligence is a question for a trier of fact. We therefore cannot conclude that defendants were immune from liability and were entitled to summary disposition.
Affirmed.
MARKEY, J., concurred.
It is unclear from the record whether both brothers were in custody, in Detroit and Livonia respectively, at the same time, or how or why the Livonia police failed to take custody of plaintiffs brother, Carnelle Kendricks, from the Detroit police after he was arrested in Detroit.
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NEFF, J.
In this action under the Construction Lien Act (CLA), plaintiff E.R. Zeiler Excavating, Inc. (Zeiler), appeals as of right an order of the trial court granting summary disposition in favor of defendant NAS Surety Group (NAS) and defendant DOMA Properties Limited Partnership (DOMA) on the grounds that the statute of limitations barred Zeiler’s surety bond claim against defendants. DOMA cross-appeals the trial court’s denial of its request for attorney fees under MCL 570.1118(2). We reverse the grant of summary disposition for NAS and remand this matter for further proceedings. We affirm the grant of summary disposition for DOMA and affirm the denial of DOMA’s request for attorney fees.
i
This case presents a narrow issue of first impression to determine whether the one-year limitations period for filing an action to enforce a construction lien, MCL 570.1117(1), governs an action to enforce a surety bond pursuant to MCL 570.1116. Because the one-year period of limitations under MCL 570.1117 expressly applies to “[proceedings for the enforcement of a construction lien and the foreclosure of any interests subject to the construction lien,” which are enforcement proceedings independent of and distinct from an action on a bond under the CLA, we hold that the one-year period of limitations does not govern plaintiffs action on the bond.
n
This action arises from a construction lien claim filed by Zeiler, a subcontractor, for amounts due for excavat ing and underground services in the construction of a subdivision in Frenchtown Township for property-owner and developer DOMA. In May 1999, Zeiler entered into an excavating contract with Robertson Builders, Inc. (Robertson), the general contractor retained by DOMA for the subdivision project. According to Zeiler, on June 2, 2000, either Robertson or DOMA decided to terminate Zeiler’s services. Zeiler alleged that Robertson owed Zeiler $216,259 for work performed under the contract.
On June 28, 2000, Zeiler filed a demand for mandatory binding arbitration pursuant to its contract with Robertson. Zeiler also filed a claim of lien under the CLA on July 7, 2000. Shortly after, on August 1, 2000, Robertson filed a bond to discharge the construction lien on DOMA’s property. The bond named Zeiler as obligee, NAS as surety, and Robertson as principal.
When Zeiler subsequently received an arbitration award in its favor three years later and obtained a judgment against Robertson for $159,125, Zeiler pursued payment from NAS under the surety bond. NAS declined to pay. NAS asserted that because Zeiler failed to take action against NAS within one year of the lien claim, any action by Zeiler on the bond was time-barred.
Zeiler filed this action, alleging that under the CLA provisions for discharging a claim of lien by filing a bond, MCL 570.1116, NAS was liable for payment of the $159,125. In the alternative, Zeiler requested reinstate ment of the construction lien in the event that the bond that discharged the lien was invalid. Immediately after filing its complaint, Zeiler filed a motion for summary disposition under MCR 2.116(0(10), arguing that (1) under the bond, NAS was obligated to pay for any successful claim against Robertson and that no other conditions appear in the bond or are permitted under the CLA and (2) MCL 570.1116, which governs surety bonds under the CLA, does not contain a one-year enforcement limitation.
The trial court denied Zeiler’s motion for summary disposition, granted the motion of NAS for summary disposition under MCR 2.116(C)(7) and (10), and granted summary disposition to DOMA under MCR 2.116(1) (2). The court denied DOMA’s request for attorney fees. The court held that the period of limitations for enforcing a claim of lien under MCL 570.1117 also applied to this action, and thus Zeiler’s rights lapsed one year after Zeiler recorded its claim of lien. Citing MCL 570.1302(2), the court reasoned that Zeiler was entitled to bring a separate action on the contract, which would have tolled the limitations period pending the outcome of arbitration. The court concluded that Zeiler’s failure to do so barred any action against defendants for the enforcement of the arbitration award.
hi
This Court reviews de novo a trial court’s denial of summary disposition to determine whether the moving party was entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Statutory interpretation and whether a period of limitation applies in particular circumstances are questions of law, which we also consider de novo on appeal. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003); Detroit v 19675 Hasse, 258 Mich App 438, 444; 671 NW2d 150 (2003).
Summary disposition under MCR 2.116(C)(10) is properly granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The court considers the pleadings, affidavits, depositions, admissions, and other documentary evidence in the light most favorable to the non-moving party. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). The moving party must specifically identify the undisputed factual issues and has the initial burden of supporting its position with documentary evidence. Id. at 455; Maiden, supra at 120. The responding party must then present legally admissible evidence to demonstrate that a genuine issue of material fact remains for trial. Id.; Smith, supra at 455 and n 2.
Summary disposition under MCR 2.116(C)(7) is proper when a claim is barred by the statute of limitations. Maiden, supra at 118 and n 3. In determining whether summary disposition was properly granted under MCR 2.116(C)(7), this Court “consider^] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).
iv
Plaintiff argues that the CLA contains no express or implied provision under MCL 570.1116 for a one-year period of limitations on the enforcement of surety bonds, as it does for the enforcement of construction liens. Accordingly, the trial court erred in holding that plaintiffs action was time-barred. We agree.
A
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Gladych v New Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003). The first criterion in determining intent is the specific language of the statute. Halloran v Bhan, 470 Mich 572, 577; 683 NW2d 129 (2004). The fair and natural import of the terms employed, in view of the subject matter of the law, governs. In re Wirsing, 456 Mich 467, 474; 573 NW2d 51 (1998).
“If the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed and judicial construction is neither required nor permitted. However, if reasonable minds can differ concerning the meaning of a statute, judicial construction of the statute is appropriate.” Solution Source, Inc v LPR Assoc Ltd Partnership, 252 Mich App 368, 373; 652 NW2d 474 (2002) (citation omitted).
B
Although the facts and proceedings in this case are complicated, the legal analysis is straightforward. MCL 570.1116 is silent concerning any period of limitations for an action on a bond. Although MCL 570.1117 expressly provides for a one-year period of limitations, the provision applies by its plain language to the enforcement of construction liens and foreclosure on them. We find no basis for extending the one-year period of limitations to actions on bonds filed under MCL 570.1116 contrary to the express statutory scheme established by the Legislature. We agree with Zeiler that the six-year period of limitations for contract actions, MCL 600.5807(8), applies to its claim against NAS.
The plain language of the CLA undermines defendants’ assertion that the Legislature, by its silence, intended a one-year limitation under MCL 570.1116. A more reasonable conclusion is that the Legislature intended a short period of limitations only for construction liens, primarily on the basis of important operative differences between such liens and surety bonds.
The CLA governs the rights of the parties and provides:
Each contractor, subcontractor, supplier, or laborer who provides an improvement to real property shall have a construction lien upon the interest of the owner or lessee who contracted for the improvement to the real property, ... the interest of an owner who has subordinated his or her interest to the mortgage for the improvement of the real property, and the interest of an owner who has required the improvement. A construction lien acquired pursuant to this act shall not exceed the amount of the lien claimant’s contract less payments made on the contract. [MCL 570.1107(1).]
A construction lien “shall attach to the entire interest of the owner or lessee who contracted for the improvement, including any subsequently acquired legal or equitable interest.” MCL 570.1107(2). Accordingly, a construction lien is an encumbrance on the title to the property and encourages payment to resolve disputes regarding services performed on the property and acts as security for contractors who perform the services.
A construction lien may be discharged if a bond is recorded with the county clerk. MCL 570.1116(1). The bond must name the lien claimant as the obligee and must “be in the penal sum of twice the amount for which the lien is claimed and shall be conditioned on the payment of any sum for which the obligee in the bond may obtain judgment on the claim for which the claim of lien was filed.” Id. “The bond may be either a cash bond executed by a principal, or a surety bond executed by a principal and a surety company authorized to do business in this state.” Id. The bond at issue in this case is the latter.
“In an action brought in connection with the claim of the obligee” of a surety bond, the court may reduce the amount of the bond, order other or additional surety, or “[g]rant any other relief the court considers to be equitable.” MCL 570.1116(3). MCL 570.1116 is silent on the period of limitations for bringing such a claim. In the case of construction liens, MCL 570.1117 is not silent: “Proceedings for the enforcement of a construction lien and the foreclosure of any interests subject to the construction lien shall not be brought later than 1 year after the date the claim of lien was recorded.” MCL 570.1117(1). If a proceeding to enforce a construction lien is not brought within one year, a person with an interest in the real property affected by the lien may secure a certificate verifying that fact from the county clerk, and the certificate may be recorded with the register of deeds, after which the claim of lien is of no effect. MCL 570.1128. The county clerk issued such a certificate in this case.
The parties offer competing interpretations of the silence of MCL 570.1116 with regard to any period of limitations. Zeiler contends that the Legislature, by its silence, did not intend the same one-year period of limitations for surety bond claims as that which it expressly set forth in MCL 570.1117. Instead, it argues that the six-year period of limitations for breach of contract under MCL 600.5807(8) should apply. Defendants assert that this Court should interpret the two provisions in harmony, and thus subject to the same period of limitations of one year.
We agree with Zeiler’s argument and reasoning. In light of the detailed CLA statutory scheme, we conclude that the Legislature, by its silence, did not intend the same one-year period of limitations for surety claims as that which it expressly provided for enforcement of construction liens through foreclosure proceedings.
MCL 570.1128 explicitly provides an administrative mechanism for certifying that a proceeding under a construction lien has not commenced after one year, “after which the statement or claim of lien shall have no effect.” No corresponding provision exists with regard to a surety bond pursuant to which no claims were filed within one year.
More importantly, the differences between construction liens and surety bonds convince us that the Legislature, in accordance with the plain language expressed, intended a shorter period of limitations for the former, but not the latter. Construction liens expose real property to liability. The public has a “substantial interest in the certainty of land titles.” Northern Concrete Pipe, Inc v Sinacola Cos-Midwest, Inc, 461 Mich 316, 322; 603 NW2d 257 (1999). The Legislature therefore had good reason to require a short period of limitations for construction lien claims. Otherwise, stale claims would cloud title to real property for extended periods, and early settlement of disputed claims would not be encouraged.
A surety bond, on the other hand, releases the real property from potential liability. From plaintiffs perspective, the bond acts in the nature of an insurance contract giving the contractor security by way of an action to enforce the contract against a surety up to twice the amount of the original lien. MCL 570.1116(1). The bond, which has either the cash backing of a principal or the institutional reliability of a licensed surety, id., removes the need for leverage over the real property. Therefore, the risks and the rights at stake are materially different under construction liens and surety bonds. The bond does not merely replace the lien with something of equal value. A short period of limitations for liens is aimed not at “how much” is to be recovered, but “how” recovery may be obtained. Surety bonds do not bring with them the prospect of foreclosure actions that the Legislature took care to see settled quickly in the interest of the public.
The trial court erred in concluding that a one-year period of limitations applied to Zeiler’s claim. Accordingly, as Zeiler contends, the six-year limitations period for breach of contract, MCL 600.5807(8), applies.
Zeiler further contends on appeal that it is entitled to a grant of summary disposition in its favor. However, while it appears that Zeiler’s position is correct, because the trial court erroneously granted summary disposition on the basis that Zeiler’s claim against NAS was time-barred and did not reach the issue of liability, we remand this action for decision by the trial court in the first instance.
v
With regard to DOMA, although the court adopted the wrong rationale, it did not err in dismissing the claim against DOMA. Zeiler’s claim against DOMA was stated as an alternátive to the claim against NAS on the bond. In the event recovery could not be obtained on the bond, Zeiler requested that the court exercise its equi table powers and reinstate the construction lien against DOMA. MCL 570.1116(3) permits the court to grant any other relief the court considers to be equitable:
In an action brought in connection with the claim of the obligee, the court may do 1 or more of the following:
(a) Order the amount of the bond to be reduced.
(b) Order other or additional surety to be provided.
(c) Grant any other relief the court considers to be equitable.
Zeiler states that its claim against DOMA encompassed only the equitable request for reinstatement of its claim of lien and that no request is made in the instant action to enforce a construction lien in a foreclosure proceeding under MCL 570.1118. Zeiler further states that the inclusion of DOMA as a defendant was a direct result of the position taken by NAS that any obligation on the bond pertains only to a judgment “against the property” for the enforcement of the lien, a condition that may render the bond invalid under MCL 570.1116. Zeiler thus sought reinstatement of the claim of lien in the event the bond was declared invalid or inconsistent with the CLA.
The arguments and record before us indicate no basis for declaring the bond invalid or inconsistent with the CLA. Zeiler’s alternative claim against DOMA thus appears to be no longer at issue. DOMA is therefore entitled to summary disposition with regard to Zeiler’s claim for equitable relief.
vi
On cross-appeal, DOMA argues that the trial court erred in denying its request for attorney fees under MCL 570.1118(2) on the ground that Zeiler’s claim against DOMA was not vexatious. We disagree.
MCL 570.1118(2) provides:
In each action in which enforcement of a construction lien through foreclosure is sought, the court shall examine each claim and defense that is presented, and determine the amount, if any, due to each lien claimant or to any mortgagee or holder of an encumbrance, and their respective priorities. The court may allow reasonable attorneys’ fees to a lien claimant who is the prevailing party. The court also may allow reasonable attorneys’ fees to a prevailing defendant if the court determines the lien claimant’s action to enforce a construction lien under this section was vexatious. Attorneys’ fees allowed under this section shall not be paid from the homeowner construction hen recovery fund created under part 2. [Emphasis added.]
The trial court found that Zeiler’s complaint was not devoid of legal merit. The court noted that Zeiler established an arguable legal position in good faith concerning the applicable construction lien jurisprudence because the CLA sets forth no specific limitations period for an action under MCL 570.1116, and counsel was thereby acting in the best interests of the client. Contrary to DOMA’s argument, the court’s reasoning was not erroneously confined to the claim against NAS. The court’s general reasoning applies to Zeiler’s claim against DOMA.
A court’s decision whether to award attorney fees under the CLA is reviewed for an abuse of discretion. Vugterveen Systems, Inc v Olde Millpond Corp, 210 Mich App 34, 46; 533 NW2d 320 (1995), aff d in part and vacated in part 454 Mich 119 (1997); Superior Products Co v Merucci Bros, Inc, 107 Mich App 153, 159; 309 NW2d 188 (1981). “A trial court’s finding that a claim is frivolous or vexatious is reviewed for clear error.” Dillon v DeNooyer Chevrolet Geo, 217 Mich App 163, 169; 550 NW2d 846 (1996).
As relevant to this case, a “vexatious proceeding” is defined in the appellate context as a proceeding undertaken “without any reasonable basis for belief that there was a meritorious issue to be determined on appeal[.]” MCR 7.216(C)(1)(a). Zeiler’s alternative claim for equitable relief cannot be said to be vexatious. Given the absence of authority applying or interpreting the CLA provisions at issue, and the express provision for equitable relief in an action connected to the claim of the bond obligee, MCL 570.1116(3)(c), Zeiler’s pursuit of its claim against DOMA was reasonably based on a belief in its legal merits.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
MCL 570.1101 et seq.
Also known as North American Specialty Insurance.
As explained in part IV(B), in accordance with MCL 570.1116, a surety bond releases the property encumbered by a construction hen from potential liability and instead exposes the surety, in this case NAS, to potential liability.
Defendant Valenti Trobec Chandler Inc. acted as the agent of NAS in securing the bond for the benefit of Robertson and DOMA. By stipulation of the parties, Valenti was later dismissed with prejudice from this lawsuit and is not involved in this appeal.
Given our conclusion that the claim clearly was not vexatious, we do not address the parties’ additional arguments concerning the scope or applicability of the attorney fee provision.
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ON RECONSIDERATION
Before: WILDER, EJ., and GRIFFIN and SMOLENSK, JJ.
Fer CURIAM.
Flaintiff Wanda Young, formerly known as Wanda Funturo, appeals to this Court by leave granted the February 22, 1999, order of the Grand Traverse Circuit Court, which denied plaintiffs motion to dismiss a parenting time review pending in the circuit court. Plaintiff also challenges the November 1, 1999, order of the trial court that found her in contempt for disobeying a previous order of the trial court. We remand to the trial court for further proceedings.
I. PROCEDURAL HISTORY
Plaintiff initiated this appeal in April 2000, contending that because the Tuscaloosa County Circuit Court in the state of Alabama had issued orders pertaining to the minor children, jurisdiction over the minor children rested in Alabama and that the trial court had erred in exercising jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), MCL 600.651 et seq. (repealed by 2001 PA 195, § 406[2]). In our opinion issued June 25, 2002, this Court reversed the lower court decision, agreeing that jurisdiction properly rested in Alabama and concluding that the trial court erred when it determined that it had jurisdiction over the parenting time dispute in this case. 252 Mich App 47, 57; 651 NW2d 122 (2002). Defendant filed a motion for reconsideration, advising this Court for the first time that on February 8, 2002, the Alabama Supreme Court had previously ruled that Michigan, and not Alabama, had jurisdiction over the minor children. 2002 Ala LEXIS 43, *12; 2002 WL 193862, *4 (2002). In her answer to the motion, plaintiff urged this Court to deny reconsideration and attached as an exhibit to her answer her February 22, 2002, motion for rehearing in the Alabama Supreme Court. This Court held defendant’s motion “in abeyance pending final action by the Alabama Supreme Court.” On October 21, 2005, the Alabama Supreme Court entered an unpublished order denying rehearing and stating that jurisdiction over the minor children “continues to rest with the Circuit Court of Grand Traverse County, Michigan.” Given the actions of the Alabama Supreme Court, this Court, contemporaneously with the issuance of this opinion, entered an order granting reconsideration and vacating our prior decision. We now address the substance of plaintiffs appeal.
II. PACTS AND PROCEEDINGS
We stated the pertinent facts of the case in our original opinion, 252 Mich App 49-54, which facts we now adopt and incorporate:
In September 1992, plaintiff filed for divorce in the Grand Traverse Circuit Court. In October 1992, plaintiff and the children, one boy, aged five, and one girl, aged eleven months, moved to Tuscaloosa, Alabama, with defendant’s consent and the court’s permission. The divorce judgment was entered on June 4, 1993. Under the provisions of the judgment, plaintiff was granted physical custody of the children while defendant was granted “reasonable visitation as the parties may mutually agree and arrange with advance notice.” It is undisputed that plaintiff and the children have lived in Alabama continuously since October 1992. It is also undisputed that while defendant exercised parenting time here in Michigan, he also frequently spent time with the children in Alabama, as well as in Florida, where he would take the children for spring break and extended vacations.
According to defendant, when the parties’ son, who was then eleven years old, informed his parents that he wanted to move to Michigan to live with defendant, plaintiff refused to arrange parenting time for the 1998 Christmas holiday, the 1999 spring break, and the summer of 1999. On January 12, 1999, defendant wrote to the Grand Traverse Circuit Court Friend of the Court (FOC), asking the FOC to schedule a parenting time review hearing and to establish a parenting time schedule. In response to this filing, on January 19, 1999, plaintiff filed a petition to modify the divorce decree in the Tuscaloosa County Circuit Court in the state of Alabama. On January 20, 1999, an order entered in the Grand Traverse Circuit Court directing plaintiff to appear on February 2,1999, before the FOC for a review of the parenting time schedule.
On February 1, 1999, plaintiff filed a special appearance with the Grand Traverse Circuit Court. On February 2,1999, plaintiff filed an ex parte motion in the Grand Traverse Circuit Court seeking suspension of the parenting time review scheduled for that same date before the FOC. This motion was denied. On February 12, 1999, plaintiff filed a motion in the Grand Traverse court to dismiss the parenting time review proceeding. Plaintiff contended in her motion that pursuant to § 653 of the UCCJA, MCL 600.651 et seq., the Alabama court rather than the Michigan court had jurisdiction over all custody and parenting time determinations. Plaintiff also contended that even if the Michigan court did have jurisdiction over the matter, §§ 656 and 657 of the UCCJA mandated that the Michigan court defer any exercise of jurisdiction until both courts had communicated to determine the more appropriate forum to decide this parenting time dispute. MCL 600.656; MCL 600.657.
On February 19, 1999, argument was heard on plaintiffs motion to dismiss. Plaintiff asserted that because the children had lived in Alabama for most of their lives, attended school in Alabama, and lived in Alabama with plaintiff, their stepfather, and extended family, Alabama rather than Michigan had jurisdiction over the parenting time dispute. Plaintiff further argued that because plaintiffs employment records, as well as the children’s school, medical, and community records, were located in Alabama, it was evident that Alabama properly had jurisdiction over this matter. In addition, plaintiff advised the Michigan court that on February 16, 1999, the Tuscaloosa County Circuit Court had entered an order finding that jurisdiction was properly vested in Tuscaloosa County, Alabama.2 Specifically, the order observed:
“Based on the sworn testimony of Wanda Punturo (Young) that the minor children have lived in the State of Alabama since 1992, and that they have attended no other school for the last seven years other than the schools here in Tuscaloosa, Tuscaloosa [sic] is apparently the home state of the children and therefore Alabama has the power to render a modification of the original decree.
“In the event some other state also claims jurisdiction then this Court will discuss with the appropriate judge of that state which forum would be more convenient to hear this matter.”
The Michigan court relied on the provision in the 1993 divorce judgment that stated that the Grand Traverse Circuit Court “shall retain jurisdiction over the parties of this action until the minor children reach the age of 18 years, or graduate from high school, whichever shall later occur,” to hold that Michigan retained jurisdiction over parenting time disputes between the parties. The Michigan court also found that the Alabama court should have stayed proceedings until the Michigan [cjourt declined jurisdiction. On February 23,1999, the Michigan court entered an order which made the following findings: (1) on the basis of the language of the judgment of divorce, Michigan retained jurisdiction over the parenting time dispute; (2) defendant had requested a parenting [time] review by the FOC before plaintiff filed her Alabama petition to modify the judgment; and (3) because § 656 of the UCCJA states that “a court of one state may not exercise [] jurisdiction if, at the time of filing of the petition, a proceeding concerning the custody of the ... children is pending in a court of another state,” Alabama should not have exercised jurisdiction “unless and until” the Michigan court stayed its proceedings because Alabama “would be a more convenient forum.” The Michigan court then went on to find that Alabama was not a more convenient forum and indicated that pursuant to an investigation and report of the FOC, an order modifying the judgment of divorce would issue.3 On February 25, 1999, the Michigan court entered an order modifying the judgment of divorce by awarding defendant parenting time with the children “[e]very summer vacation ... beginning one week after school concludes until one week before school resumes, every spring break . .. , [and] every other Christmas break in it’s [sic] entirety, [and] in alternate years from the day after Christmas until [t]he conclusion of the Christmas break.”
On March 4, 1999, plaintiff filed a motion for reconsideration and motion to rescind the order modifying the judgment of divorce, since the Michigan court’s order erroneously found that plaintiff did not file her petition in Alabama until February 12, 1999, when in reality the petition had been filed on January 19, 1999. The Michigan court denied these motions on the basis that[,] because defendant’s letter seeking parenting time review was received by the FOC on January 12, 1999, the present proceedings began in Michigan before plaintiff filed her initial petition in Alabama on January 19, 1999.
Defendant then filed a motion in the Alabama court seeking dismissal of plaintiffs petition for lack of jurisdiction. In an order dated March 25, 1999 the Alabama court denied the motion, finding again that pursuant to the UCCJA, Alabama had jurisdiction over the custody dispute, and that because the children had lived in Alabama since 1992, the children’s medical records, school records, and evidence regarding “the care, protection, training and personal relationships of the children” were in Alabama, it was evident that Alabama was the more convenient forum [in which] to decide this issue. Defendant moved for reconsideration of this order and plaintiff petitioned for a specified summer parenting time schedule. On May 10, 1999, the Alabama court denied defendant’s reconsideration motion, and ordered that defendant would exercise his summer parenting time from July 1, 1999 through August 4, 1999.
On June 3, 1999, the Michigan court found plaintiff in contempt “for failing to provide parenting time between [defendant and the children during Spring Break, 1999,” and assessed plaintiff $250 in costs. In a hearing held on October 1,1999, plaintiff challenged this contempt finding, contending that since the Alabama court continued to exercise jurisdiction, Michigan did not have jurisdiction under the UCCJA, and that since plaintiff was in compliance with the orders of the Alabama court, she could not be held in contempt for violation of orders entered by the Michigan court. These challenges were rejected by the Michigan court.
III. STANDARD OF REVIEW
Although the determination whether to exercise jurisdiction under the UCCJA was within the discretion of the trial court, Brown v Brown, 181 Mich App 61, 71; 448 NW2d 745 (1989), and would not be reversed absent an abuse of that discretion, Braden v Braden, 217 Mich App 331, 338; 551 NW2d 467 (1996), the question whether a court has subject-matter jurisdiction to hear a particular claim is a question of law that we review de novo. Genesis Ctr PLC v Financial & Ins Services Comm’r, 246 Mich App 531, 540; 633 NW2d 834 (2001).
IV ANALYSIS
Plaintiff first argues that the trial court erred when it determined that it had jurisdiction over this parenting time dispute. We disagree.
At the time this dispute arose, both Alabama and Michigan had adopted the UCCJA. See MCL 600.651 et seq. (repealed by 2001 PA 195), and Ala Code 30-3-20 et seq. Under the UCCJA, when a child custody dispute was presented, the first inquiry for any court was whether it has jurisdiction over the case. See Braden, supra at 334. MCL 600.653 provided:
(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree or judgment if any of the following exist:
(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a), (b), or (c) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child and it is the best interest of the child that this court assume jurisdiction.
(2) Except under subsection (l)(c) and (d), the physical presence in this state of the child or of the child and 1 of the contestants is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody. [Emphasis added.]
See also Ala Code 30-3-23.
The record in this case establishes that the children lived with plaintiff and their extended family in Alabama for most of their young lives, that they have attended school only in Alabama, and that they were not present in Michigan at the time this dispute arose. Nevertheless, the Alabama Supreme Court has ruled that Alabama is not the appropriate forum in which to decide the parenting time dispute between the parties and that jurisdiction over the minor children is appropriately exercised in Michigan. Thus, the trial court did not abuse its discretion by exercising jurisdiction over this matter.
Plaintiff next argues that because neither defendant nor the friend of the court filed a motion, properly noticed for hearing, to modify the parenting time of the parties, the trial court erred in entering an order modifying the parenting time. Because nearly six years have passed since plaintiff initiated this appeal, one of the parties’ two children has reached the age of majority, and this Court has no current, relevant information concerning the status of the parties’ other child, who is now almost 14/2 years old, we remand to the trial court so that the trial court may determine what measures are now in the best interests of the minor child.
V CONCLUSION
Because the Alabama Supreme Court has ruled that Alabama is not the appropriate forum in which to decide the parenting time dispute between the parties, the trial court did not err in exercising jurisdiction over the minor children. Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
GRIFFIN, J., did not participate.
Unpublished order of the Court of Appeals, entered April 7, 2000 (Docket No. 223586).
Unpublished order of the Court of Appeals, entered August 30, 2002 (Docket No. 223586).
Published order of the Court of Appeals, 270 Mich App 801 (2006).
Effective January 1, 2000, Alabama repealed the UCCJA in favor of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. However, because this dispute arose in late 1998 and early 1999, it is dear that, at all relevant times, both states resolved jurisdiction disputes regarding custody pursuant to their respective versions of the UCCJA.
This order was entered after the filing of plaintiffs verified petition for modification on January 19, 1999, and plaintiffs verified petition for enforcement of jurisdiction dated February 11, 1999. The Alabama court had also entered an order on January 25, 1999, directing both parties to attend an educational seminar entitled “Children Cope With Divorce,” or the equivalent, within forty-five days of the January 25, 1999, order.
The order also specified that no determination was being made with respect to where future hearings regarding custody disputes should be heard.... | [
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Murray, EJ.
I. INTRODUCTION
This appeal involves the second medical malpractice lawsuit filed on behalf of the estate of George Verbrug ghe against these defendants. In the first lawsuit, the Macomb Circuit Court properly dismissed the case on statute of limitations grounds, a decision that we have upheld in an opinion issued simultaneously with this opinion. See Verbrugghe v Select Specialty Hosp-Macomb Co, Inc, unpublished opinion per curiam of the Court of Appeals, issued March 23, 2006 (Docket No. 262748). However, just before that first dismissal, a successor personal representative (the sister of the initial representative) was appointed. The successor representative not only replaced the initial representative on the caption of the complaint before the dismissal occurred in the first lawsuit, but she also filed a second lawsuit in the same circuit court.
The trial court also dismissed this case on statute of limitations grounds, MCR 2.116(C)(7), as well as offering several alternative grounds supporting its decision. Central to this appeal is whether MCL 600.5852, as enforced by Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29; 658 NW2d 139 (2003), allowed plaintiff to bring this second lawsuit. We conclude that under the statute and Eggleston, plaintiff could do so. We also hold that res judicata did not bar this lawsuit, because a dismissal on statute of limitations grounds does not constitute an adjudication on the merits. Accordingly, we reverse the trial court’s order dismissing this case with prejudice, and, for the reasons stated below, remand for entry of an order of dismissal without prejudice.
II. MATERIAL FACTS AND TRIAL COURT PROCEEDINGS
As with any case dealing with the statute of limitations, the dates of certain events are critical. The allegations in this case are that, on August 14, 2001, the decedent underwent hip replacement surgery at St. John Macomb Hospital. Thereafter, the decedent was transferred to Select Specialty Hospital-Macomb County, where he was allegedly treated with excessive antibiotics and suffered from a low potassium level. The decedent was released from care on October 14, 2001. By October 18, 2001, the decedent had passed away from congestive heart failure.
The initial personal representative, Steven Verbrugghe, was appointed on December 26, 2001, submitted a notice of intent to bring a medical malpractice suit on December 2, 2003, and filed the first lawsuit on June 24, 2004. Defendants in that case filed motions for summary disposition based on the expiration of the period of limitations. On September 27, 2004, at a time when briefing and arguments had concluded but no decision by the circuit court had been rendered, Suzanne Verbrugghe was issued letters of authority to be the successor personal representative. The successor representative replaced the initial representative on the caption of the first complaint, and, on October 21, 2004, also filed this lawsuit. Thereafter, on November 29, 2004, the trial court dismissed the initial lawsuit because it was untimely filed.
Defendants Select Specialty and Dr. De Leon then filed motions for summary disposition in this case, arguing that the case was filed outside the applicable limitations period, that res judicata barred the action, that plaintiff had failed to file a notice of intent before proceeding with this case, and that plaintiff had failed to comply with MCR 2.113(C)(2)(b). On June 10, 2005, the circuit court granted defendants’ motions, agreeing with the first three arguments noted above, while not addressing defendants’ argument that plaintiff violated MCR 2.113(C)(2)(b).
in. ANALYSIS
“ ‘This Court reviews a trial court’s decision on a motion for summary disposition pursuant to MCR 2.116(C)(7) de novo to determine whether the moving party was entitled to judgment as a matter of law.’ ” Rinas v Mercer, 259 Mich App 63, 67; 672 NW2d 542 (2003) (citation omitted). In addition, the interpretation and application of statutes present questions of law that we review de novo. Eggleston, supra at 32.
A. TIMELINESS
Plaintiff argues that the trial court erred in rejecting her argument that the issuance of letters of authority for her to serve as the successor personal representative and her subsequent filing of a new complaint were proper under MCL 600.5852 and Eggleston. For their part, defendants argue that Eggleston is factually distinguishable because the Eggleston successor personal representative was appointed out of “necessity,” while plaintiffs appointment was only meant to avoid the demise of the medical malpractice case filed by the initial personal representative. In addition, defendants argue that, unlike the personal representative in Eggleston, the initial personal representative in this case had initiated a cause of action. The trial court agreed with defendants and, in dismissing this action, relied in part on factual distinctions between this case and Eggleston.
MCL 600.5852 states:
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run. [Emphasis added.]
In applying this statute to this case, our task is to enforce the words used by the Legislature, not to judicially craft exceptions to those words:
Because our judicial role precludes imposing different policy choices than those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. People v McIntire, 461 Mich 147, 152-153; 599 NW2d 102 (1999). If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). We must give the words of a statute their plain and ordinary meaning. [Herald Co v Bay City, 463 Mich 111, 117-118; 614 NW2d 873 (2000).]
See, also, Threet v Pinkston, 20 Mich App 39, 41; 173 NW2d 731 (1969) (“We may not attempt to rewrite the statute. . . nor may we read into it restrictions at variance with its plain language and clear meaning.”).
The Eggleston Court noted how clear the words used in the statute were, which necessitated a decision that
[t]he statute simply provides that an action may be commenced by the personal representative “at any time within 2 years after letters of authority are issued although the period of limitations has run.”... The language adopted by the Legislature clearly allows an action to be brought within two years after letters of authority are issued to the personal representative. The statute does not provide that the two-year period is measured from the date letters of authority are issued to the initial personal representative.
[Eggleston, supra at 33.]
It appears to us that the Eggleston Court’s conclusion was based solely on the statutory language. The only facts relevant to the Eggleston holding were that the initial personal representative died and that a successor was appointed. The Court concluded, based on the statute, that the successor’s two-year period of limitations started with the issuance of the successor’s letters of authority, not the initial personal representative’s papers. Thus, because the plaintiff was the personal representative of the estate and had otherwise filed within the two-year period and the three-year ceiling, the complaint was proper and timely:
Plaintiff was “the personal representative” of the estate and filed the complaint “within two years after letters of authority [were] issued,” and “within three years after the period of limitations ha[d] run.” MCL 600.5852. The action was therefore timely. [Eggleston, supra at 33.]
Therefore, unlike McLean v McElhaney, 269 Mich App 196; 711 NW2d 775 (2005), we do not believe the facts in this case allow us to avoid applying the plain language of this statute as interpreted in Eggleston. Thus, because McLean did not apply Eggleston, we find that McLean provides us no useful guidance.
As noted in Eggleston, the statute contains only two limitations on the circumstances under which a successor personal representative can take advantage of the two-year period of limitations: the decedent passing away during the limitations period and the successor receiving letters of authority. Once these events occur, the statute simply indicates that if a lawsuit is brought by a successor, it must be filed within two years of the issuance of the letters of authority, but no more than five years after the cause of action accrued. We recognized as much in Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566; 703 NW2d 115 (2005):
[A] personal representative may file a medical malpractice suit on behalf of a deceased person for two years after letters of authority are issued, as long as that suit is commenced within three years after the two-year malpractice limitations period expired. [Id. at 572-573.]
Under the plain language of the statute, and consistently with its interpretation in Eggleston and Farley, we conclude that plaintiff timely filed this complaint. The decedent died within two years of the cause of action accruing, plaintiffs letters of authority were issued on September 27, 2004, and the complaint was filed less than a month later, on October 21, 2004. Finally, plaintiff commenced this lawsuit before October 14, 2006. Thus, plaintiffs complaint was filed in strict compliance with MCL 600.5852.
In McMiddleton v Bolling, 267 Mich App 667; 705 NW2d 720 (2005), we recognized that a successor per sonal representative had the authority to file a second lawsuit, despite the initial representative having filed an untimely one, as long as the second complaint was otherwise timely under MCL 600.5852 and Eggleston. McMiddleton, supra at 672-673. Unlike in our case, in McMiddleton the successor did not file a second complaint within the statutory time frame, id. at 673, and, because she could not ratify an untimely filed complaint, the dismissal was upheld. Id. at 673-674.
We also reject defendants’ argument, adopted by the trial court, that applying Eggleston would circumvent a purpose of the statute of limitations, which is to protect defendants from stale claims. In order to accept this position, we would have to ignore the statutory time-lines within MCL 600.5852. Clearly, the general purposes of a statute cannot override the plain and unambiguous language of that particular statute. Tull v WTF, Inc, 268 Mich App 24, 31; 706 NW2d 439 (2005). Hence, unless there is some other independent impediment to plaintiff bringing this claim, the timelines set forth by the Legislature control the issue whether plaintiff timely filed this complaint.
In ruling as we have, we have not ignored the rather unique situation created under these facts. It is patently obvious that, under these facts, plaintiff may proceed with a second lawsuit, despite the dismissal of the initial personal representative’s lawsuit. In other words, the estate gets a chance for a second bite of the apple. But we believe the predicament lies within the statute, which must be our focal point, and under the statute there is no limitation on the circumstances under which a personal representative can file a lawsuit once letters of authority are issued other than the time limits with which plaintiff has complied. Eggleston, supra; Farley, supra. Thus, if this type of successive suit is an unintended consequence of the language contained in the statute, the Legislature is the proper body to correct that deficiency.
The trial court also ruled that the successor personal representative was required, pursuant to MCL 700.3613, to assume the position and actions of the initial personal representative. While this statute has procedural implications for the successor personal representative, it does not, as determined by the trial court, preclude her from initiating a separate action. MCL 700.3701 provides:
A personal representative’s duties and powers commence upon appointment. A personal representative’s powers relate back in time to give acts by the person appointed that are beneficial to the estate occurring before appointment the same effect as those occurring after appointment. Before or after appointment, a person named as personal representative in a will may carry out the decedent’s written instructions relating to the decedent’s body, funeral, and burial arrangements. A personal representative may ratify and accept an act on behalf of the estate done by another if the act would have been proper for a personal representative.
In this case, plaintiff specifically elected not to ratify the lawsuit brought by the initial personal representative, instead filing a new one. As we stated in McMiddleton, under Eggleston and MCL 600.5852, “a successor personal representative cannot rely on the untimely filed complaint that was filed before she was appointed.” McMiddleton, supra at 673. Further, this Court recognized that under the statute, any ratification by a successor personal representative of a prior act required that the prior act be “beneficial to the estate.” MCL 700.3701; McMiddleton, supra at 674. Since the initial complaint in this litigation was untimely, which certainly is of no benefit to the estate, there was no basis for its adoption or ratification by plaintiff. McMiddleton, supra.
B. RES JUDICATA
We must now resolve defendants’ alternative argument that, even if plaintiffs complaint was timely under Eggleston, it is nonetheless barred by res judicata. Specifically, defendants argue, though not too strenuously, that the dismissal of the first case on statute of limitations grounds bars this lawsuit. The trial court agreed with this argument, holding:
The doctrine of res judicata precludes a subsequent action between the same parties when the evidence or essential facts are identical. This doctrine requires that: (1) the first suit be decided on the merits; (2) the matter contested in the subsequent suit was or could have been resolved in the first case; and (3) both suits involve the same parties or their privies. Eaton Co [Bd of] Rd Comm’rs v Schultz, 205 Mich App 371, 375-376; 521 NW2d 847 (1994).
With respect to the Verbrugghe estate, the Court dismissed the claims in the first case against Specialty and DeLeon on the ground that they were time-barred. Thus, a decision was rendered on the merits. Moreover, the Court is satisfied that the issues and parties are essentially the same in the prior and present cases. Under these circumstances, the Court holds that the doctrine of res judicata operates to bar the instant claims. Eaton Co Rd Comm’rs, supra.
Although none of the parties has cited a single case addressing whether a dismissal on statute of limitations grounds constitutes an adjudication on the merits for purposes of res judicata, we hold that it does not.
The determination whether res judicata bars a lawsuit involves a question of law, which we review de novo. Chestonia Twp v Star Twp, 266 Mich App 423, 428; 702 NW2d 631 (2005), citing Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). In Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999), the Supreme Court outlined the general principles governing res judicata:
Res judicata bars a subsequent action between the same parties when the evidence or essential facts are identical. Eaton Co Bd of Co Rd Comm’rs v Schultz, 205 Mich App 371, 375; 521 NW2d 847 (1994). A second action is barred when (1) the first action was decided on the merits, (2) the matter contested in the second action was or could have been resolved in the first, and (3) both actions involve the same parties or their privies. Id. at 375-376.
Michigan courts have broadly applied the doctrine of res judicata. They have barred, not only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not. Gose v Monroe Auto Equipment Co, 409 Mich 147, 160-163; 294 NW2d 165 (1980); Sprague v Buhagiar, 213 Mich App 310, 313; 539 NW2d 587 (1995).
In support of the trial court’s ruling, defendants argue that the granting of a motion for summary disposition constitutes an adjudication on the merits. As a general matter, this proposition can be correct. See, e.g., Mable Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich App 485, 510; 686 NW2d 770 (2004) (“[A] summary disposition ruling is the procedural equivalent of a trial on the merits that bars relitigation on principles of res judicata.”). However, because a motion for summary disposition can be premised on both procedural and substantive grounds, see MCR 2.116(C)(1) to (10), it is necessary to determine whether a motion brought under MCR 2.116(C)(7) for expiration of the period of limitations constitutes an adjudication on the merits.
We are not writing on a clean slate, as both the Supreme Court and this Court have addressed this issue. In Nordman v Earle Equipment Co, 352 Mich 342; 89 NW2d 594 (1958), the Supreme Court rejected the argument that a prior dismissal on the basis that the complaint was filed prematurely was an adjudication on the merits, holding:
“ ‘No judgment in any legal proceeding can be a bar unless the rights of the party whose claim has been presented for adjudication have been passed upon, or he had the right in such proceeding to have the merits of such claim adjudicated.’ ” [Id. at 346 (citations omitted).]
Although Nordman did not involve a prior dismissal on statute of limitations grounds, it was used as controlling precedent when this Court considered that precise issue in Malesev v Garavaglia, 12 Mich App 282; 162 NW2d 844 (1968). In that case, certain property owners brought suit in the Macomb Circuit Court against several contractors for property damage. The defendants successfully moved for dismissal on the basis of the three-year statute of limitations. Less than two months later, plaintiffs filed another lawsuit, this time alleging breach of contract, against the same defendants in the Wayne Circuit Court. The trial court granted defendants’ motion for accelerated judgment. Id. at 284. This Court reversed the dismissal, holding that a dismissal based on the statute of limitations was not an adjudication on the merits for res judicata purposes.
A judgment, to constitute a bar to any subsequent claim, however, must be rendered on the merits. Tucker v. Rohrback (1864), 13 Mich 73. “ ‘No judgment in any legal proceeding can be a bar unless the rights of the party whose claim has been presented for adjudication have been passed upon, or he had the right in such proceeding to have merits on such claim adjudicated.’ ” Nordman v. Earle Equipment Company (1958), 352 Mich 342, 346 [89 NW2d 594], The accelerated judgment granted on the first action in tort properly applied the 3 year statute of limitation and dismissed the plaintiffs’ claim without deciding the merits.
As the accelerated judgment of the tort claim was not a decision on the merits, it was not res judicata to bar a second suit for breach of contract. [Id. at 285.]
In a plurality opinion issued just over a decade later, the Supreme Court, citing its Nordman opinion, indicated that “[a]n accelerated judgment based on the three-year statute of limitations is not an adjudication on the merits of a cause of action.” Rogers v Colonial Fed S & L Ass’n of Grosse Pointe Woods, 405 Mich 607, 619 n 5; 275 NW2d 499 (1979). More recently, in Ozark v Rais, 184 Mich App 302; 457 NW2d 145 (1990), we concluded that a prior dismissal on statute of limitations grounds did not, under res judicata, bar a second suit.
In this case, the first action was dismissed on the basis of the statute of limitations. Such a dismissal was on a technical, procedural ground. The question whether defendant was the child’s father was never adjudicated. Therefore, we find that the first action was not decided on its merits. The doctrine of res judicata does not apply. [Id. at 308.]
In accordance with these decisions, we hold that the prior dismissal of the estate’s case on statute of limitations grounds did not constitute an adjudication on the merits for the purposes of res judicata. Therefore, res judicata did not bar this action.
C. NOTICE OF INTENT
The trial court’s final reason for dismissal was that plaintiffs complaint was subject to dismissal because the successor personal representative failed to serve a notice of intent on defendants, citing MCL 600.2912b(l) and Halton v Fawcett, 259 Mich App 699, 704; 675 NW2d 880 (2003). The trial court and defendants are correct in this last assertion, as plaintiff herself was required to file or serve a notice of intent before commencing this lawsuit. Halton, supra. However, the remedy for this deficiency is a dismissal without prejudice. See Neal v Oakwood Hosp Corp, 226 Mich App 701, 715; 575 NW2d 68 (1997) (“[Dismissal without prejudice” would be the “appropriate sanction for plaintiffs noncompliance with [MCL 600.2912b(l)]”).
IV CONCLUSION
We reverse the trial court’s grant of defendants’ motions for summary disposition based on MCL 600.5852 and res judicata, but affirm the dismissal based on plaintiff’s failure to comply with MCL 600.2912b(l), and remand for entry of an order dismissing this case without prejudice. Neal, supra. We do not retain jurisdiction. No costs to either side.
Plaintiff failed to indicate on the caption of this second complaint that there was a related case pending that involved the same transaction or occurrence. MCR 2.113(C)(2).
Consequently, we decline to address this issue. Fast Mr, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999).
As occurred in this case, in Eggleston the successor personal representative received his papers after the two-year medical malpractice statutory period of limitations expired. See Eggleston, supra at 31.
“If a person dies before the period of limitations has run ... an action which survives by law ....” MCL 600.5852.
“ ... may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run.” Id.
“But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.” Id.
Consequently, we could simply conclude that the issue was abandoned for failure to prime the appellate pump. Mitcham, v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). We resolve the issue now, however, because the trial court decided the issue.
Although no party has cited McLean for its brief discussion of res judicata, we conclude that McLean does not affect our analysis. In order to even consider the doctrine of res judicata, there must be a second suit filed. Chestonia Twp, supra at 429. In McLean, the personal representatives never filed a second lawsuit, McLean, supra at 197, and therefore its discussion of res judicata was based on a hypothetical situation. Its discussion was therefore obiter dictum and not binding on subsequent panels. Carr v City of Lansing, 259 Mich App 376, 383-384; 674 NW2d 168 (2003). | [
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CAVANAGH, J.
Plaintiff appeals as of right the summary dismissal of his tortious interference claim against defendant Susan Williams, only, pursuant to MCR 2.116(C)(4). We reverse.
Plaintiff was terminated from his employment with Ballard Power Systems Corporation following Williams’s claim that plaintiff sexually harassed her at work. Plaintiff brought this action alleging, in part, that Williams tortiously interfered with his business expectancy of continued employment with Ballard by making false accusations about him. Following defendant’s filing of a motion for summary disposition, the trial court held that plaintiff stated a valid cause of action against Williams, but held that the damages available to plaintiff were only nominal —usually $1. The trial court concluded that it lacked subject-matter jurisdiction, therefore, and dismissed the case.
On appeal, plaintiff argues that his potential recovery on this tortious interference claim is not limited to nominal damages as a matter of law. After review de novo of this question of law, we agree. See Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
In concluding that plaintiff was only entitled to a recovery of nominal damages, if any, the trial court relied on Feaheny v Caldwell, 175 Mich App 291; 437 NW2d 358 (1989), and Sepanske v Bendix Corp, 147 Mich App 819; 384 NW2d 54 (1985), for the proposition that, while a cause of action for tortious interference with an at-will employment contract can be maintained, the damages accruing after termination are limited to nominal damages because of the speculative nature of the claim.
However, as plaintiff argues on appeal, that law limiting recovery to nominal damages in actions involving at-will contracts was overruled by Health Call of Detroit v Atrium Home & Health Care Services, Inc, 268 Mich App 83; 706 NW2d 843 (2005) (Health Call II). Specifically, this Court held
that a blanket rule limiting recovery to nominal damages as a matter of law in all actions arising out of or related to the termination of at-will contracts is not legally sound, because there may exist factual scenarios in which there is a tangible basis on which future damages may be assessed that are not overly speculative despite the at-will nature of the underlying contract. [Id. at 85-86.]
Defendant argues, however, that the holding in Health Call II does not apply when the underlying contract is an at-will employment contract. But that position is not supported by a fair reading of the Health Call II case.
The Health Call II analysis began with a reference to Feaheny, a tortious interference case involving an at-will employment contract, which held that such claims are actionable because “ ‘an at-will employee who enjoys the confidence of his or her employer has the right to expect that a third party will not wrongfully undermine the existing favorable relationship.’ ” Health Call II, supra at 92, quoting Feaheny, supra at 304. Then, the Court considered the issue of damages flowing from this actionable claim.
The Health Call II Court first turned to Environair, Inc v Steelcase, Inc, 190 Mich App 289; 475 NW2d 366 (1991), a case that involved an at-will sales agreement contract and that relied on Sepanske — a case involving an at-will employment contract — to conclude that when an at-will contract is at issue, there is no tangible basis from which to assess damages. Health Call II, supra at 93-94, citing Environair, supra at 293-294. The Health Call II Court next considered the general rule “that remote, contingent, and speculative damages cannot be recovered in Michigan in a tort action.” Health Call II, supra at 96. With respect to the law on damages, the Court further noted:
Damages, however, are not speculative simply because they cannot be ascertained with mathematical precision. Although the result may only be an approximation, it is sufficient if a reasonable basis for computation exists. Moreover, the law will not demand that a plaintiff show a higher degree of certainty than the nature of the case permits.... Furthermore, the certainty requirement is relaxed where damages have been established but the amount of damages remains an open question. Questions regarding what damages may be reasonably anticipated are issues better left to the trier of fact. [Id. at 96-97 (citations omitted).]
Then the Health Call II Court opined that it “must construe Environair as standing for the proposition that damages arising out of or related to the termination of an at-will contract are speculative as a matter of law in all cases because there is no tangible basis on which damages can be assessed.” Id. at 98. The Court noted that in Health Call of Detroit v Atrium, Home & Health Care Services, Inc, 265 Mich App 79; 695 NW2d 337 (2005) (Health Call I), vacated in part 265 Mich App 801 (2005), the Health Call I panel had held that, but for the holding in Environair, it would have “found that factual circumstances exist that could reasonably support an award by the trier of fact of future damages that are not overly speculative or uncertain. . . Health Call II, supra at 98, citing Health Call I, supra at 85-86. Thus, pursuant to MCR 7.215(J), a conflict arose, which the Health Call II panel defined as “whether it is appropriate to limit recovery to nominal damages as a matter of law in all cases in which the damages sought arose out of or are related to the termination of an at-will contract.” Health Call II, supra at 100. The Health Care II Court answered in the negative, concluding that
a blanket rule limiting recovery to nominal damages as a matter of law in all actions arising out of or related to the termination of at-will contracts is not legally sound, because there may exist factual scenarios in which there is a tangible basis on which future damages may be assessed that are not overly speculative despite the at-will nature of the underlying contract. [Id. at 85-86.]
We reject defendant’s interpretation of the Health Call II holding as being limited to at-will contracts outside the employment setting. The analysis relies on cases involving at-will employment contracts, and the scope of the holding is clearly stated as including “all actions arising out of or related to the termination of at-will contracts,” id. at 85-86, 106, 107 (emphasis added), and “all cases in which the damages sought arose out of or are related to the termination of an at-will contract,” id. at 100 (emphasis added). The holding is not limited in application to cases in which the underlying at-will contract is not an employment contract — it applies to all cases involving the termination of an at-will contract, employment or otherwise. And we agree with that holding. There is no obvious reason to distinguish between types of at-will contracts, particularly with respect to the issue of damages arising out of or related to their termination, because the same difficulty in establishing damages is inherent in all these types of cases. We agree with the Health Call II Court that, albeit rare situations, “there may exist factual scenarios in which there is a tangible basis on which future damages may be assessed that, are not overly speculative despite the at-will nature of the underlying contract.” Id. at 86. In any event, in addressing the dissent’s concern, the Health Call II Court indicated that its holding applied in the context of at-will employment contracts, when it noted the following:
If one subscribes to the dissent’s view regarding future damages as always being speculative when they relate to at-will employment contracts, one wonders whether the dissent would reverse case law that allows for more than nominal future damages for at-will employees whose employment is terminated in violation of various civil rights statutes or, for that matter, future damages for a wrongful death claim involving an at-will employee. Future damages for lost wages have traditionally been allowed in situations in which there is no dispute of fact that the injured party was an at-will employee. Simply because damages cannot be ascertained with mathematical certainty does not make them unacceptably speculative. It is for this reason that what damages may reasonably be anticipated is an issue better left for the trier of fact. [Id. at 106-107.]
Accordingly, we reverse the trial court’s determination that plaintiff’s potential recovery on his tortious interference claim was limited, as a matter of law, to nominal damages. We express no opinion on whether, in this case, there exists a tangible basis on which to assess future damages that is not overly speculative.
Next, plaintiff argues that the trial court’s dismissal for lack of subject-matter jurisdiction should be reversed. After review de novo to determine whether Williams was entitled to judgment as a matter of law, we agree. See MCR 2.116(C)(4); Jones v Slick, 242 Mich App 715, 718; 619 NW2d 733 (2000). The trial court’s decision to dismiss was based solely on its erroneous conclusion that plaintiffs potential recovery was limited to nominal damages as a matter of law; therefore, we reverse the dismissal and remand for further proceedings.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Because plaintiff is only appealing the dismissal of count I of his complaint, which is his claim against Williams, we refer to Williams as “defendant.”
And, thus, overruled Environair. | [
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] |
Cooley, J.
This case having been brought to a hearing in the court below on demurrer to two counts of the declaration, while an issue of fact upon other counts was pending, the court sustained the demurrer, and rendered final judgment for defendant on the .whole record. This judgment was probably an inadvertence, but we have no alternative but to reverse it with costs and remand the record for further proceedings.
There still remains on the record the question of law whether the court was right in sustaining the demurrer. The suit was brought on the guaranty by defendant of the collection of a note made by one Keeler. The form of the guaranty is not given, but the allegation in the declaiation is, that the defendant “for a valuable consideration to him 'in hand paid, by a guaranty in writing endorsed upon said note and signed by said defendant, did guarantee to said plaintiff the collection of said note.” It is then averred that at the time the note became due and payable the said Keeler was and ever since has been “ pecuniarily irresponsible and insolvent,” by reason whereof the said note at the time when the same became due and payable was and ever since has been and now is uncollectible; “ and that the same was duly presented for payment and payment refused.” The question presented on demurrer to these allegations is, whether the fact that the maker of the note was pecuniarily irresponsible and insolvent, excuses the neglect to take proceedings-at law for collection; or, to state it in other words, whether the terms of the guaranty do not require proceedings at law to enforce the collection of the note as a condition precedent to a resort to the guarantor. ,
The cases on this subject are greatly at variance. In M’Doal v. Yeomans, 8 Watts, 361, it was held that on a guaranty that a note is “collectible” it is not necessary for the guarantee to attempt collection by legal proceedings if the maker is insolvent. See also McClurg v. Fryer, 15 Penn. St., 293. This has always been the doctrine of, the courts in Massachusetts, Sanford, v. Allen, 1 Cush., 473, explaining Marsh v. Day, 18 Pick., 321. See Miles v. Linnell, 97 Mass., 298. And as to Maine, see Gillighan v. Boardman, 29 Me., 79. In Wheeler v. Lewis, 11 Vt., 265, it is said that where a note is warranted “good and collectible” the holder is bound to resort to legal measures within a reasonable time, and to pursue them with common diligence, or show what is equivalent, the absolute insolvency of the maker of "the note. To the same effect are Bull v. Bliss, 30 Vt., 127; Dana v. Conant, 30 Vt., 246. And see Thompson v. Armstrong, 1 Ill., 48; Stone v. Rockefeller, 29 Ohio St., 625. Cases in Connecticut sometimes cited as supporting these have no bearing,. as they rest on peculiarities in the local law of indorsement. Perkins v. Catlin, 11 Conn., 213; Ranson v. Sherwood, 26 Conn., 437.
. The New York cases, on the other hand, have always held that in fixing liability on such a guaranty, the only evidence that the note is not collectible is the failure of legal proceedings diligently purs.ued to result in collection. Moakley v. Riggs, 19 Johns., 69; Thomas v. Woods, 4 Cow., 173; Taylor v. Bullen, 6 Cow., 624; Morris v. Wadsworth, 11 Wend., 100; White v. Case, 13 Wend., 543; Curtis v. Smallman, 14 Wend., 231; Loveland v. Shepard, 2 Hill, 139; Craig v. Parkis, 40 N. Y., 181. In Wisconsin the rule is the same. Day v. Elmore, 4 Wis., 190; Borden v. Gilbert, 13 Wis., 670; Dyer v. Gibson, 16 Wis., 557; French v. Marsh, 29 Wis., 649. The like rule seems to be recognized in Kentucky, Ely v. Bibb, 4 J. J. Marsh., 71; and in Texas, Shepard v. Phears, 35 Texas, 763. See also Peck v. Frink, 10 Iowa, 193.
The point has never been directly passed upon in this court, but in Dwight v. Williams, 4 McLean, 581, the circuit court of the United States for this circuit approved and applied the New York rule. We believe that rule to be reasonable, and to accord with the general understanding of parties when such guaranties are given. The undertaking that a note is collectible means that If proceedings for collection are diligently prosecuted at law, they shall result in collection. It does not mean that the maker of the note is* responsible, or shall remain responsible, but that the debt shall be collected if the proper steps are promptlyJiaken for the purpose. It may be that an officer would find attachable property, where the witnesses know of none; it may be that with the large exemptions allowed by law the debtor would choose to make payment, rather than have the judgment stand against him, even when payment could not be enforced.
It follows that the circuit judge did not err in sustaining the demurrer.
The other Justices concurred* | [
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] |
Cooley, J.
Miller, on the fourth day of October, 1872, rented of Cordes, for the term of ten years, a wooden building in Grand Rapids, at a specified annual rent. The lease contained a covenant on the part of Cordes that “if said building burns down during this lease, said Cordes agrees to rebuild the same in a suitable time, for said Miller.” Miller went into possession and occupied the building for a restaurant and saloon until May 26, 1874, when it was destroyed by fire. Within a week Miller notified Cordes to rebuild, and some preparation to do so would appear to have been made by the removal of the debris of the fire. June 15, 1874, the common council of Grand Rapids passed an ordinance prohibiting the erection of wooden buildings within certain limits which embraced the site where the burned building had stood. Cordes afterwards went on and prepared plans and specifications for a larger brick building, and contracted for putting it up. Miller declined to examine the plans or to say anything about them, but in substance he said that when the building was completed, he would move into it. It was completed in November, and in December Miller moved into a part of it, which was considered by the parties as being equivalent to the old building. Complaining then that the new building was not put up in a suitable time, he brought this suit on the covenant.
The principal question in the case is whether such a suit can be maintained. No question is made of the validity of the city ordinance, and it is urged on behalf of the lessor that as the putting up of such a structure as was originally leased was thereby rendered impossible, the covenant was discharged. Brady v. Insurance Co., 11 Mich., 425. On the other hand it is argued that rebuilding is not impossible; it is only rebuilding of a specified material that is forbidden; and that Cordes when he rented his building and agreed to rebuild in case of fire, took upon himself all the risks of being compelled to make use of some other material than wood, as much as he did the risk of the rise in the cost of materials. Borne stress is also laid upon the fact that the lease did not mention the material of which the old building was constructed. The court below sustained the action.
If this judgment is correct, then Cordes had placed himself under legal obligation not only to put up a new buiding of some more substantial material than wood, no matter how much greater might be the cost, and to turn it over to Miller for the term at the same rent, no matter how much more the occupation might be worth. Moreover he would be obliged to reproduce the old building, as near as the change in the material would permit, and could not compel his lessee to accept a building differently planned, subdivided and arranged, even though it might be better and at least equally convenient. In other words, in the enforced change of material Cordes could not consult his own interest in making such modifications as the change would be likely to render important and desirable, but would be tied down to the plan and arrangement of a building which it might be well enough to reproduce in the old material, but which would never be chosen if the material were to be brick, stone or iron.
We cannot think this the fair construction of the lease. Cordes covenanted to rebuild, if destroyed by fire, the building he leased; but did not covenant that if not allowed to rebuild that, he would put up another on the same plan, of more substantial and presumably more costly material. Had the exact contingency which has since happened been in the minds of the parties at the time, it is scarcely, conceivable that the lessor would have consented to put up a brick building in place of the one leased, and to receive for it the same rent the wood building brought him, when its probable rental value would be considerably greater, and its cost presumably more.
Had this been' an agreement by a builder to rebuild the old building, it would scarcely be urged that the covenant would bind him to erect a new one differing from it so radically as would a brick or a stone structure from one of wood. Had Cordes been selling this land to Miller with a similar agreement respecting the building, it would be equally plain that the change in the law could not work a change in his contract so seriously increasing his responsibility. But in principle the "cases suggested would not differ from this in the least. Cordes undertook for something which by a changé in the law has become illegal; and his covenant has thereby been discharged.
In this case Cordes prepared accommodations for Miller which the latter has accepted and now occupies. But they were different from the old, and Miller could not have been compelled to accept them. The arrangement was therefore one outside the lease, — not one in compliance with its terms. Probably the course of the parties has in effect been equivalent to an offer on one side and an acceptance on the other of the new quarters in place of the old and under the old lease; but no question concerning that arrangement arises here.
The judgment must be reversed, and judgment entered for Cordes with costs of both courts.
The other Justices concurred. | [
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Cooley, J.
McClure filed his bill to foreclose a mortgage given by John F. Holbrook to Isaac A. Holbrook, October 26, 1868, and by the latter assigned to McClure November 8, 1869. The mortgaged premises were primary school lands, to which no deed had yet been obtained, the purchase price not having been fully paid to the State. It turned out when complainant came to foreclose his mortgage that an undivided one-third interest in the lands, subject perhaps to a right of dower, was not in the mortgagor when the mortgage was given, but that it had been afterwards purchased and conveyed to Sally Ann Holbrook, the mortgagor’s wife.
The complainant made Mrs. Holbrook a party defendant, claiming that the purchase of the one-third interest in the mortgaged lands in her name was really made by her husband, the mortgagor, with his own money, and that therefore it is subject to the mortgage. The court below appears to have found this case made out, and gave a decree foreclosing Mrs. Holbrook’s rights on sale being made.
The decree in this particular is erroneous. The mortgage covering an undivided two-thirds of the land only, there was no fraud, and no wrong to the complainant in Mrs. Holbrook acquiring the other third. Even if her husband furnished the means which paid for it, the fact is immaterial; complainant’s interest in the land is the same afterwards that it was before; he loses nothing by the change in title, nor can he gain anything thereby. If the mortgage had contained covenants of title or of warranty a different question might possibly have been presented; but it did not.
No other question is presented by the record which requires attention at our hands. The decree as to Sally Ann Holbrook must be reversed with costs of both courts. In all other particulars it will be affirmed. It will then stand as a decree of foreclosure and sale of all that was mortgaged; and complainant can demand nothing more.
The other Justices concurred. | [
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Graves, J.
Miller sued in the circuit court for slander and recovered $25. For this sum he took judgment and also for "$155.25 costs. This allowance for costs was made against the objection of plaintiff in error that no more costs than damages were recoverable. The objection was well based. The case was governed by those provisions which give costs to the plaintiff to an amount not exceeding the damages found. Comp. L., §§ 7387, 7388; Inkster v. Carver, 16 Mich., 484; Meyer v. Wood, 38 Mich., 297; People on rel. of Stortz v. Circuit Judge, id., 243; Dikeman v. Harrison, id., 617. We held in Inkster v. Carver that the Act of 1867 worked no change in that part of the pre-existing law that determined which party should recover costs. The act referred to assumed to arrange a scale of services and prices for taxation and to provide for certain party allowances where there were no specific regulations to exclude them. But it did not attempt to fix abstractly how much or how little in gross should only be recoverable in any specific actions, or to graduate the entire sum to be allowed by any standard which the amount of damages would furnish. That subject was left to be governed by other provisions the Legislature deemed salutary and were satisfied with, and the last section cited is one of them. The question is-not affected by the Act of April 15th, 1871.
The judgment must be reversed, with the costs of this court; but a proper judgment may' be entered here upon the verdict.
The other Justices concurred. | [
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Cooley, J.
This ’luit originated in justice’s court, where McDermid was declared against for breach of contract to deliver one hundred bushels of wheat, on which he had been paid twenty-five dollars. The purchase was made September 18, 1876, and tbe wheat was to be delivered in two or three weeks. Delivery was not made as agreed, and the evidence showed that McDermid from time to time afterwards was called upon to make it, and kept promising to do so. About the first of March, 1877, he promised to bring the wheat “right down,” but di# not do so, and suit was brought. Meantime the value of wheat had been steadily advancing. The main question made on the record is whether the justice was -correct in estimating the damages. McDermid insisted that the damages should be estimated by the price of wheat at the time when, by the contract, he was to make delivery; that is to say, at the end of two or three weeks from the purchase; but the justice gave judgment estimating the damages by the price in the following March. In this he was right. The time of delivery had been extended by the defendant himself, and plaintiffs were entitled to the wheat or its value at the time he last promised to deliver it.
A subordinate question is made respecting the judgment which was rendered in the circuit court, to which the cause was removed on certiorari. The circuit court, finding the judgment of the justice correct, entered up judgment under the statute against McDermid and his sureties in the certiorari, and in doing so, computed interest to the date thereof, and gave judgment anew for the gross sum instead of merely affirming the justice’s judgment. It is objected that this left the justice’s judgment standing, so that there were two judgments for the same demand. But this is clearly a mistake. The new judgment is a substitute for the other, and the circuit court had no other method for giving judgment against the sureties than the one adopted.
The judgment is affirmed with costs.
The other Justices concurred. | [
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Mabston, J.
This is a case made after judgment. From an examination of the record it appears that upon each and every question raised during the progress of the trial the court ruled in favor of the plaintiffs. The case was tried by the court without a jury. Judgment was rendered in favor of defendant LeGrand Abbey, and in favor of plaintiffs as against Aaron Abbey. The evidence and proceedings upon the trial are all substantially set forth in the case' made, but there is no finding of facts by the circuit judge, nor does it appear that any request was made for such a finding. The plaintiffs here claim that they were entitled to a judgment as against LeGrand Abbey also; It is very clear that as the case stands here there is nothing for this court to consider. Plaintiffs did not take any exceptions during the trial. They could not, as the rulings were all in their favor. The court found against them upon the facts, and there being no findings of fact, we cannot examine the evidence in order to ascertain whether the conclusions of the court thereon were correct.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
What did the testator mean by the first clause in his will, is the only question which this record presents. The plaintiff says he meant to have his widow take so much of his estate as would have passed to or been set off to her under the statutes had he died intestate. The defendant, on the other hand, says his intent was that she should take so much only as she would take under the statute after giving effect to all • the gifts he makes to others by the will. The difference is important; according to the one construction the widow would share 4n the personal estate after the legacies to the daughters and the debts and expenses were paid; according to the other the whole of the residue would go to William.
The testator begins his will by saying, “To my wife the provision made for her by the statutes of this State I deem sufficient.” If this were the only clause in the will, the widow unquestionably would take as in case of intestacy. The, clear purpose would then be held to be that the widow should take the provision the statutes give her: the same provision; no more, but also no less.
Nothing that by any construction can be held to declare' a different intent is found until the residuary clause is reached. By that the testator gives to William “all the residue of my estate, after paying the above bequests and legacies, and my debts and' the expenses of settling my estate.” This, it is said, gives the whole personalty to William, deducting only bequests, legacies, debts and expenses, and also certain allowances which the statute makes the widow in every case, and over which the testator has no control. Those allowances the widow has had in this case.
Now the argument for the executor is that the first clause gives nothing to the widow; it merely leaves her to take under the statutes. It does not, therefore,’ constitute a bequest or legacy; and as William is to have the whole residue, deducting bequests, legacies, debts and expenses only, it follows that nothing can be deducted as a statutory allowance to the widow.
It is not very safe to base arguments upon a supposition that words of art have been employed with technical accuracy in a testamentary instrument. ■ Wills are often drawn by laymen who aim rather to use effective words to express their meaning than to make use of language that will bear nice criticism. If they use expressions that appear to convey clearly to the common mind'the purpose to make a particular gift they are not likely to go to a law dictionary to ascertain whether they ought to call it a devise, a bequest or a legacy. Perhaps if they have a common form book at hand, all these words will be applied to the simplest gift of a chattel. But it is of no importance whatever so that we can clearly see what was meant.
Now in this case the testator made no gift to his wife, and yet it is not unlikely that in his mind it seemed to be a gift. He commences the clause as if it so seemed: “To my wife,” he says, 'as if he were giving. But the real purpose seems to us plain enough. Had he said “ the statutes make for my wife if she survives me a suitable and fair provision when considered with reference to the demands of others upon me: I cannot better it, therefore I will not change it,” — the meaning would have been the same as now. And there would be nothing strange if he were to class a provision thus made with the gifts actually made by his will, applying to them a common term in the residuary clause.
Had the husband’s purpose been to cut down the wife’s statutory provision, he ought to have said something like this: “ To my wife I think the statutes give more than she deserves and therefore my will is that she shall have no share in what shall be left after legacies, debts and expenses are paid, but that the whole shall go to the son to whom I have already given my farm.” That would have, expressed exactly the intent the executor now thinks he discovers in the will. It would, it is true, have sounded somewhat ungracious, but another clause in the will shows that the testator did not hesitate to use plain words. We are unwilling to find in the will any such meaning where a construction consistent with proper feeling is at least equally natural and reasonable.
The cases of Stineman’s Appeal, 34 Penn. St. 394, and Adamson v. Ayres, 5 N. J. Ch., 349, are not unlike the present in some of their peculiarities and support our view that the construction most'favorable to the widow should be preferred.
The judgment must be reversed, and the ease remanded to the probate court for proceedings in accordance with this opinion.
The other Justices concurred. | [
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] |
Campbell, C. J.
Two several appeals having been taken from the allowance and probate of the will of Alexander D. Eraser, deceased, the circuit court required them to be consolidated. A mandamus is now sought to rescind this order of consolidation.
In our opinion the action of that court was proper from abundant caution but it was entirely unnecessary, as the case was a single one and not capable of division. The proceedings in the circuit are precisely like those in the probate court, — statutory prerogative proceedings to determine the status of a dead man’s estate, and in no sense to be regarded as contentious litigation inter partes. The laws of this State have always very justly permitted the next of kin to be heard against the probate of a will, but their right to be so heard depends entirely on the statute. There are many cases where probate proceedings are conducted with little if any provision for notice to the world, and it is for the legislature to determine as it chooses the course and conditions of testacy and intestacy. The steps provided for settling such matters, although following in this State many of the analogies of judicial proceedings, are summary and statutory in their nature. It was held in Allison v. Smith, 16 Mich., 405, which discusses several considerations relevant to this motion, that the probate of every will, whether in the original or appellate tribunal, must always be single and complete in one hearing. It would be absurd to have such proceedings severed, so that a will might be held good as to one class of contestants and bad as to another. No matter how many different persons appeal, they can only raise one issue and there can be but one trial of that issue, which is to determine the question of will or no will. That is the only issue that can be raised and the only one to be decided. Its decision may involve, as all other issues may involve, several subordinate facts, but they are not independent facts and cannot be presented separately. There can be no such thing as a determination of testacy or intestacy which binds one appellant and does not bind the rest. The controversy — or more properly the proceeding, for it is not, correctly speaking, a controversy — includes all interests that the law recognizes for any purpose and binds all.
Considering as we do that all of the several claims of appeal are merely appearances in a single and indivisible proceeding, we think it cannot be severed for any purpose.
The writ is denied.
The other Justices concurred. | [
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] |
Grayes, J.
This is a hearing on return to an order to show cause why mandamus should not issue to require the rescission of two orders made in certain garnishee proceedings against the relators.
It appears from the return that one Mary Springsteen prosecuted her action in the circuit court for Cass county against Eli Green and Aaron Thorp as copartners, and on the 10th of March, 1877, recovered against them for $803.41 damages and $23.50 costs. That on the 27th of the same month one Howell acting in behalf of the plaintiff in the judgment made and filed in said court his affidavit to procure garnishee process against the relators upon the claim that they had property, money, goods, chattels, credits and effects in their hands or under their control belonging to said Aaron Thorp, or belonging to him and said Eli Green, and further that they were justly indebted to said Aaron Thorp or to him and said Eli Green; that garnishee process was thereupon issued and on the 28th of said month was served on the relators. That on the same day they personally appeared and made disclosure in these terms:
“That said George J. Townsend and John Alexander being each duly sworn says, and each for himself for answer as such garnishee says, that on or about the 2d day of December, A. D. 1876, Aaron Thorp, one of the principal defendants above named left with these deponents for collection certain notes and accounts amounting in all to about the sum of two thousand and three hundred dollars. That at the time of leaving said notes and accounts, the said Aaron Thorp stated, that such notes and accounts were deposited for collection for said Aaron Thorp and another party which said other party is not mentioned in said writ of garnishment, and that the proceeds of said notes and accounts when collected, should be remitted to said Thorp and said other party at Dowagiac, Mich. These deponents further answering say, and each for himself says, that they have no knowledge as to whether the said notes and accounts belonged to the said Aaron Thorp, or to the said Aaron Thorp and Eli Green, or to some other person further than is above stated. These deponents further answering say, and each for himself says, that there were remaining in their hands at the time of the service of said writ of garnishment, to wit, March 28th, 1877, of said notes and accounts to the amount of about the sum of two thousand dollars which are now in their hands for collection as aforesaid. These deponents further say that many of said notes and accounts are worthless and cannot be collected, and hence they are unable to state the value of said notes and accounts.”
It is plain that this disclosure is wholly insufficient to warrant any judgment against the relators as garnishees. It does not purport to show that they controlled or were in possession of any kind of personal property belonging either to Thorp alone or to Thorp and Green; or that they were indebted to Thorp alone, or to Thorp and Green. And yet as the case was framed it was necessary that the investigation should establish one of these results.
The inquiry was carried no further, however, and acting upon the opinion that the disclosure was uncandid and evasive, and that he had power to deal with it summarily, the judge made an order reciting that relators were in possession of promissory notes and accounts belonging to Aaron Thorp, and ordering that George Ketcham, one of the circuit court commissioners, .should be a receiver to take .into his possession all of said notes and accounts and collect the same with all •convenient speed, and the money so collected thereon hold subject to the further order of the court, and ordering further that relators forthwith deliver said notes ■and accounts to said receiver. A' few days later he made a further order that relators forthwith pay to said receiver all moneys in their hands collected from the notes and accounts mentioned in their disclosure and likewise deliver to him any security by chattel mortgage that they might hold securing any of said accounts.
These orders were quite unwarranted. The disclosure not being satisfactory the proper course in furtherance •of the proceedings was to take steps under Comp. L., § 6467 to elicit further and more precise information. No other practice was authorized.
The remedy is purely statutory and artificial, and the mode of conducting it is regulated and defined by enactment. The statute provides that in case of failure to prosecute inquiry under the provision mentioned the disclosure will be deemed sufficient, and such must be the result whether the disclosure be a good or .bad one. The necessary effect of stopping at the disclosure made and not going 'on to investigate pursuant to the statute was to allow the case to rest on a disclosure palpably “insufficient.” The circuit judge was asked to’ set aside these orders and refused. He should have complied with the request and reinstated the relators.
An objection is made that mandamus is not a proper remedy. If not, it is difficult to see what redress sufficiently direct and expeditious to correct the unwarrantable interference made with relators’ possession by these orders, could be found. Their legal right was clear and the excess of power in making the orders is undoubted. They were interlocutory and not final proceedings, and it could not be anticipated when or what the final judgment might be. Still the objectionable orders contemplated that relators’ rights should be immediately superseded and their possession and control entirely taken &w£ty.
We think the remedy by mandamus is authorized and that relators are entitled to relief under it.
The writ must issue.
The other Justices concurred. | [
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] |
Cooley, J.
This is a proceeding to review the action of the respondent in laying out a highway. Two defects appear in the action taken. •
1. The report of the commissioner filed with the township clerk did not show that notice of the application and of a hearing upon it had been given to the parties interested. The commissioner now shows, however, by his return to this writ, that notice was given in due form.
2. The report as filed does not show when the hearing took place. It would therefore be fatally defective, even had proof of notice been duly filed, because it does not show that the commissioner’s action took place.on the day fixed in the notices for the hearing, and does not, therefore, show that the parties interested had an opportunity to be heard.
The proceedings must be quashed, but without costs.
The other Justices concurred. | [
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] |
Cooley, J.
The plaintiff in error brings certiorari to review certain proceedings taken in the township of Sumpter, in Wayne county, whereby a certain drain was laid out and its construction ordered at the expense of land owners along the line thereof. Numerous objections are made to the proceedings, and it appears manifest that the township drain commissioner has not been as careful to follow the statute in the various steps taken by him as he should have been. In these cases where the power to act at all comes from the statute it is to be borne in mind it is impossible to sustain proceedings that do not in substance conform to the rules there laid down. Nothing of substance is there prescribed which has not been deemed material for the protection of parties who must bear the expense, and if officials dispense with what the statute has prescribed, they undertake without the least authority, . to alter the law to suit themselves.
As it can accomplish no good purpose to go through the various proceedings for the mere purpose of putting them side by side with the provisions of the statute which have not been followed, we shall content ourselves with saying that it does not appear except by his report — • which is no legal evidence — that notice was given to the parties concerned, and that this defect is fatal. People v. Highway Commissioners of Nankin, 14 Mich., 528; Van Auken v. Highway Commissioners of Vernon, 27 Mich., 414; Names v. Highway Commissioners of Olive, etc., 30 Mich., 490. Neither does it appear that the commissioner endeavored to obtain a conveyance and release of damages from the persons through whose land the drain would be cut, as required by Public Laws, 1875, p. 168; and this also is fatal. Arnold v. Decatur, 29 Mich., 77; Morseman v. Ionia, 32 Mich., 283.
The proceedings must be quashed.
The proceedings for the cleaning out of another ditch are brought up by the same writ, but we cannot take cases in that way. If those proceedings are equally defective, perhaps the proper authorities may see fit to refuse to proceed further. *
The other Justices concurred. | [
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Marston, J.
The judgment of the circuit court reversing the judgment rendered in justice’s court must be affirmed. ■ -.
Kanitz was proceeded against as garnishee of one Brown. He appeared before the justice and made disclosure which was reduced to writing. Looking at this disclosure alone it is utterly impossible to arrive at any clear or definite understanding as to the arrangement made between him and Brown, or what property he had, if any, in his hands or under his control belonging to Brown, or the value of the same. There was some arrangement between them growing out of some sort of deal in reference to limestone, which would entitle Brown to a quantity of lime when thereafter burned by Kanitz. The disclosure is so ambiguous and uncertain that it would not authorize the justice to render judgment against Kanitz as garnishee for $137.22, as was done, or for any other sum.
The disclosure is the evidence, and all the evidence that can be introduced in the case, and if that does not prima facie show a liability upon which judgment could be rendered, the justice has no authority to render a judgment against the garnishee, whether he appears upon the return day of the summons to show cause why a judgment should not be rendered against him, or not. This has been repeatedly held in this State, and must be considered as settled.
Judgment affirmed with costs.
The other Justices concurred. | [
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Marston, J.
This was simply a claim for a certain amount of money claimed to be due and owing upon a written agreement entered into by Victor M. Bostwick. After his decease the claim was presented against his estate, for allowance by the commissioners and was disallowed. Instead of taking an appeal a bill in chancery was filed and a decree rendered in favor of complainant. The claim in any view of the case was a proper one to be presented against the estate, and it was one which the commissioners had full power and authority to allow. 2 Comp. L., § 4431. If disallowed the only remedy which was left the claimant was by an appeal.
The decree must be reversed and the bill dismissed with costs.
The other Justices concurred. | [
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Marston, J.
The respondent was convicted of the offense of larceny from the person. He now claims that the court erred in admitting certain testimony and also in charging the jury, and in refusing to give certain charges as requested.
That the court erred in permitting the witness Fagin to testify what Walsh, the person who had lost the watch, said when he woke up in the saloon, about an hour after the offense had been committed, and in the absence of the respondent. We find nothing erroneous in the admission of this evidence. It did not tend to implicate any particular person in the transaction, but showed simply that Walsh claimed some one had his watch, and desired that it be given back to him. The same may be said of the conversation between Fagin and William Walsh, Jr.; it had no tendency whatever to injure the respondent. The evidence in reference'to the resistance made by the respondent at the time of his arrest was admissible, and proper to be considered by the jury.
The seventh assignment of error relates to the instructions given the jury as to the presumption of guilt arising from possession of the stolen property. No exception was taken to this portion of the charge. We cannot, therefore, consider it. The ninth request to charge was properly refused. While the facts therein referred to were proper to be considered by the jury, yet the court could not instruct them as to the weight which should be given them.
The court declined to charge that the guilt of respondent must he proved, to a moral certainty, and that the circumstances proven must he inconsistent with any other theory hut that of the absolute guilt of the accused, hut did in that connection charge that his guilt must be proved to the exclusion of all reasonable doubt, and that if the testimony could be reconciled with any rational theory other than the guilt of the accused, they should acquit. This was all the respondent was entitled to. The mere fact that the owner of the property may have been asleep at the time the property was taken, would render the crime no less a taking from the person.
As we find no error in the record properly complained of, the judgment must be affirmed.
The other Justices concurred.
The ninth request was as follows: “The absence of proof naturally to be expected is a strong argument against the existence of any fact alleged as in this case; the fact alleged is that Clarence Hall went in daylight in the presence of four or live different persons and took a watch from the person of one Walsh; now the very fact that no one saw him near the person of the complainant Walsh is a strong argument against the allegation that the respondent did go near Mm and take the property from him. Phillip’s Cr. Ev., 38.” | [
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Cooley, J.
Action was brought-in the Superior Court of Detroit against the plaintiffs in error as makers' and Peter Crawford as endorser of two promissory notes. Service was made on Crawford in Detroit, and no question is made of the validity and correctness of the judgment that was taken by default against him. A like judgment against the plaintiffs in error is contested for want of jurisdiction; service having been made upon them in the counties of Bay and Calhoun respectively.
Had the demand in suit been a joint demand, service upon Crawford would have authorized a joint judgment in form against all the defendants. Gunzberg v. Miller, ante p. 80. But the undertaking of the maker and that of the endorser of a note are separate undertakings; and though all the parties may under the statute (Comp. L., § 5776) be joined in one action, this does not make their several contracts one. It does not, therefore, authorize the court to enter up a joint judgment against all on a service made upon a part only.
In this case no service authorized by law has been made on any of the makers. A judgment against them was therefore unwarranted, and it must be reversed, with costs of this court.
The other Justices concurred. | [
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Marston, J.
The only question of any importance in this case is, whether, where an action of replevin has been commenced, a trial had upon the merits and a judgment rendered in favor of the defendants for a return of the property, they can after an execution has been issued thereon, and returned unsatisfied, bring and maintain an action of trover to recover the value of the same property?
The remedy which defendants have under such circumstances upon the replevin bond is not exclusive. The judgment in the replevin suit, where a trial is had upon the merits, in favor of the defendants and for a return of the property to them, vests in them the title thereto, and if the plaintiff has so disposed of the property that they are unable to obtain possession thereof, they may bring an action of trover to recover its value.
Upon the rendition of this judgment, the right of possession which the plaintiffs in that suit had acquired under the writ of replevin was thereby terminated, and the defendants as owners were clearly entitled to the possession; failing to obtain possession, to the value. The judgment of the court was a solemn legal adjudication that the defendants and not the plaintiffs were entitled to the property, and it gave them all legal remedies, not prohibited by statute, to obtain possession of the property or its value.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, C. J.
Hemingway as purchaser and Harger as sheriff,-under an execution sale, upon a decree of alimony against Thaddeus W. Axford, of certain lands claimed to belong to the execution debtor under his father’s will, were made defendants in a bill to- restrain the completion of the sale as against the rights of Had-don who filed .the bill as owner in possession to quiet his title against this claim.
Some questions were made concerning the validity of the execution proceedings aside from the title to the land, but inasmuch as complainant must make out his own title, and if made out must prevail in any event, we need not consider these questions.
The will of William M. Axford, which has given rise to this controversy, after some special bequests and devises to various children, contains the following residuary disposition:
“It is my last will, and I hereby direct that all the remainder of my real estate be equally divided among my children who may be living at my decease, and the heirs of any who may have deceased. And I further direct that the share belonging to my son Thadeus W. Axford, whether it remains in lands or is’ sold and converted into money, shall remain in the hands of my executors, to be controlled and managed by them, and the avails applied for the' benefit of the said Thadeus Axford, so far as he may need the same for his support, and upon the decease of the said Thadeus W. Axford the said share is to go to his issue, if he have any, and if not, to his brothers and sisters and their legal representatives. And I hereby authorize my executors, if .it seems best to them and most for the benefit of my heirs, to sell at public auction or private sale, and convey the whole or any part of the real estate aforesaid and divide the avails among my children or their legal representatives, retaining the share of Thadeus W. Axford in their own hands, and applying the interest for his benefit, as above directed. If my said executors shall sell the share of any real estate belonging to my said son Thadeus Wi Axford, I hereby authorize them to invest the whole or any part of the avails in other real estate, as to them shall seem most beneficial to him, taking the deed or deeds therefor in their own names as trustees for him. And I further direct my executors to retain a reasonable amount of my son Thadeus W. Axford’s share from time to time as compensation for ■their services in managing and controlling his share.”
Partition was had in the probate court, and the commissioners allotted to Thadeus W. Axford the lands in controversy. The executors subsequently sold them to complainant for $5000.
Defendants insist the estate belonged to Thadeus in fee simple. Complainant claims the executors held the property under an active trust and had authority to dispose of it.
There can be no doubt of the meaning of this will, and the only question is whether the executors under our statute of Uses and Trusts could do as they did. So far as the partition is concerned, the court of probate had authority to divide the lands, and the rest of the heirs could have compelled it. The form of setting apart this share cannot change the title which would have existed in the undivided interest. The several estate is the same as the estate before held in common.
Under this will the intention is, plain that Thadeus should not control or manage any of the property set apart for his benefit, and that he should receive from it no more than was needed for his support.
It is also expressed that the executors are to have the entire management and control of this property, with authority to determine whether the land should be kept or sold, and with power to use the proceeds either in money investments or in purchasing other lands, which, if purchased, were to be conveyed to them as trustees. The property was to be managed and controlled by them and the avails applied by them to his support as far as needed.
This imposed upon them the active duties of management and control of the fund in whatever shape they chose to put it, the investment or other use of it, and the collection of the avails, as well as the discretion of applying these for his support. Nothing can be more clear than the purpose of creating an active and not a passive trust, in which the trustees were to do everything and the beneficiary was absolutely excluded from doing anything.
Our statute of Uses and Trusts expressly authorizes trusts to be created, among other things: “ Second, to sell, mortgage, or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon; Third, to receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to tho rules prescribed in the last preceding chapter.”
There is nothing in that chapter bearing on the questions involved in this record.
• The trusts in the will are in precise accordance with these permitted trusts in lands, and being in all respects within - the statutory language,, they need no resort to construction to maintain them.
If valid, as we think they are, the sale to complainant was in accordance with them.
The defendant Hemingway .was, in the language of the act for quieting titles to land, “setting up a claim thereto in opposition to the title claimed by the complainant.” Comp. L., § 5072. And as Thadeus was an heir-at-law whose share in the inheritance had apparently been partitioned to him, so that tc those without knowledge of the will he would appear to be its owner, the execution sale, valid or invalid, would have been a cloud on the title had there been no statute enlarging the remedy against claimants out of possession. The other defendant was a necessary party to prevent the execution of the deed on the sheriff’s sale.
The decree quieting the title must be affirmed with costs.
The other Justices concurred. | [
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Kavanagh, J.
Roy W. Miller died on the 12th day of May, 1957, leaving a last will and testament dated. August 10,. ,1956, The will was presented to the probate court for Wayne county for admission by the surviving widow, Edna Miller. Objections to admission of the will to probate were made by Evelyn Prosser, the appellant herein;. 1 of the 2 daughters of testator by a first marriage. . The issues of want of testamentary capacity, undue influence, and forgery were framed. Upon the request of Evelyn Prosser the matter was certified under the statute to the Wayne county circuit court for trial.
- -On-August 12, 1957, exemplification of record and probate appeal were filed iii the Wayne county circuit court, and the same day a demand for jury trial was filed. The matter was tried April 15-22, 1958. Prior to trial, counsel for proponent asked for a ruling from the court that contestant had failed to file demand for jury trial pursuant to Michigan Court Bule No 75, § 5, subd (c) (1945).* In accordance with proponent’s request, the court ruled before proceedings began that “contestant was deemed to have waived jury trial by reason of failure to file demand therefor in the probate court.”
Before putting in his case, counsel for contestant requested of the court a statement on the record as to his ruling. The court stated as follows:
“The court has ruled and will rule that petitioner’s demand for jury trial in this causé was not timely filed. Beference is made to the statute, first of all beginning at CL 1948, § 701.36 (Stat Ann 1943 Bev § 27.3178[36]), and also Court Buie No 75 (1945) with particular relation to subsection 7 thereof, wherein it is provided, among other things-—the section being entitled, ’‘Same; Procedure, Piling, Demand for Jury. Trial, Service.’ Section (a) under section 7 reads.:
“ ‘Forthwith file a true copy of such order with the lower court: thereupon the circuit court shall be deemed vested with jurisdiction of said appeal, and no appeal shall thereafter be dismissed without notice to the appellant;
“‘(b) If the appellant desires a jury trial, he shall file demand therefor with copy of such order; otherwise, jury trial shall be deemed to have been waived by the appellant.’
“The court’s ruling being that (b) related back to (a) when reference is made to ‘copy of such order’ it means that at the time the copy of the order is filed there must be filed therewith a demand for jury trial or, under the rule, jury trial shall be deemed to have been waived by the appellant.
“Now it is true that tbe word ‘certification’ did not appear therein but it is the court’s holding that the terms ‘appeal’ and ‘certification’ are to be considered to be used interchangeably under the statute and under the rule and, therefore, the statute and the rule would apply to both certification and appeals. I think it is conceded that the rule would be controlling and conclusive over the statute as being more specific and that is my ruling.”
At the conclusion of proofs the court admitted the will to probate. Contestant made a motion for a new trial for the following reasons:
1. The court erred in ruling contestant had waived jury trial in that Michigan Court Rule No 75, § 21 (1945), expressly states the procedure in certification of will contest cases to be in accordance with the statute, CL 1948, § 701.36 et seq. (Stat Ann 1943 Rev § 27.3178[36] et seq.).
The court’s attention was directed to CL 1948, § 701.42 (Stat Ann 1943 Rev § 27.3178[42]), and to Michigan Court Rule No 33, § 2 (1945), the latter reading as follows:
“Upon certification of a will contest under Rule 75, § 21, right to a jury trial shall be deemed to have been waived unless the party at whose instance such certification was made shall file a demand for jury trial in the circuit court within 15 days after filing of the exemplification of the record of such will contest in said court. Any other party shall file such demand within 15 days after being served with notice of the filing of such exemplification.”
2. The court erred in finding “contestant was not able to establish that testator did not know who the natural objects of his bounty were.”
3. The court erroneously drew conclusions and inferences from lack of testimony as to testator’s discussion of Ms property and enumerated several other reasons.
Objections to the motion for new trial were filed, and the court denied the motion. In answering the first reason, the court said that the matter was clearly controlled by Court Rule No 75 (1945) and that a demand for jury trial was not timely filed. As to the remaining points he made reference to the earlier opinion filed upon the conclusion of the trial which he considered to be fully explanatory as to those matters.
Contestant appeals to this Court, raising 2 questions as follows:
“1. .Were there issues of fact as to mental competency and undue influence, for submission to a jury?
“The trial court made findings of fact as to competency and undue influence and in so doing implicitly answered ‘yes.’
“Contestant and appellant contends the question should be answered ‘Yes.’
“2. Should contestant have been granted a jury trial under Michigan Court Rule No 75, § 21 and Michigan Court Rule No 33, § 2 (1945)?
“The trial court answered ‘No.’
“Contestant and appellant contends the question should be answered ‘Yes.’ ”
Since a disposition of the second question will dispose of this matter, we will discuss that question first.
While it is true that In re Reid’s Estate, 248 Mich 360, is authority for the position that the jurisdiction of circuit courts in cases of will contests by certification is in the nature of an appeal, and while it is equally true that Court Rule No 75, § 21 (1945), provides in part “Where any interested party desires to have a will contest certified to the circuit court * * * he shall file his written application and bond in the same way and subject to the same provisions as are now provided for in appeals from the probate court to the circuit court,” it is an elementary rule of law regarding the construction of a particular statute or in the interpretation of any of its provisions, that all acts relating to the same subject, or having the same general purpose, shall be read in connection with it as together constituting one law. The following citations are in support of such rule: County of Wayne v. State Department of Social Welfare, 343 Mich 475; Dearborn Township Clerk v. Jones, 335 Mich 658; Palmer v. State Land Office Board, 304 Mich 628.
Also, in the case of Warren Products, Inc., v. City of Northville, 356 Mich 481, the Court held that one section of a statute must be considered in relation to other sections in the same statute in order to determine legislative intent, especially where specific references from such section to other portions are included.
The same construction, would properly apply to our Court Rules (1945). Rule No 33, § 2, provides that upon certification of a will contest under Rule No 75, § 21, a jury trial may be had upon demand being made within 15 days after filing of the exemplification of the record of such will contest.
Court Rule No 75 applies to appeals in counties which have a population of over 500,000. Not only •does reading the rules in pari materia require giving the 15-day rule effect in Wayne county, but the specific reference in the language of Court Rule No 33 to cases certified under Court Rule No 75, § 21, requires this to be done.,
■ The trial court erred .in not granting contestant a jury trial. Since a retrial.in.this matter .in .the circuit court will be imperative," we do not consider the other questions raised by the appellant.
The trial court is hereby reversed, and the case is remanded to the circuit court for a jury trial, with costs in favor of appellant.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred.
As amended, November, 1949. See 326 Mieh xxxvii, xl. The cateh line quoted is not part of the rule as amended'. See 326 Mieh' xlvi.—Repostes. .... .
See 326 Mich xlvi.—Repobtee.
See 326 Mich xlvi.—Reporter. | [
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] |
Edwards, J.
This is a suit in assumpsit for money plaintiff-appellee claims is owed on a contract. The trial judge found that plaintiff-appellee had performed his part of the contract fully and that def end-ants-appellants had breached their part. The circuit judge entered a judgment for $5,100.77 in favor of appellee, and this appeal resulted.
Appellants have furnished a statement of facts which, although somewhat self-serving, we employ with the excision of a few sentences of argument or irrelevancy. Appellee has filed no brief.
“Max J. Pierson, one of the above named appellants, is a medical doctor with no experience whatsoever in the real-estate business and Monya Pier-son, his wife, is of foreign extraction and is not well versed in the English language.
“Beryle Walters, the appellee, is a practicing attorney and a real-estate broker. Upon the suggestion of Beryle Walters the appellants agreed to buy certain land contracts which would be recommended to them by said Beryle Walters. They purchased the total number of 19 land contracts which land contracts Beryle Walters, the appellee, recommended to them and said Beryle Walters kept said land contracts in his office, collected the monthly payments for which he was paid a fee.
“That on or about the 6th day of March, 1956, the appellants met with Beryle Walters at his offices where they informed Beryle Walters that they desired to sell all their land contracts and Beryle Walters thereupon prepared a written authority to him.
“That the apellants received an offer to purchase from Melvin F. Lanphar, Inc., to purchase 17 contracts * * * subject to 14 conditions. * * *
“The appellants refused to accept the offer from Melvin F. Lanphar, Inc., relying upon the express provision that the sale of the land contracts was subject to the express approval by the sellers and they refused to approve the same. They also relied upon the fact that Beryle Walters was authorized to offer for sale all of the land contracts, which were owned by the appellants, were 19 and the offer by Melvin F. Lanphar, Inc., was for the purchase of 17 land contracts only. They also relied upon the fact that the offer to purchase made by the Melvin F. Lanphar, Inc.j was-subject to conditions which were not included in the original authority given to Beryle Walters, exhibit A, and they therefore refused to approve or -accept the offer from said Melvin F. Lanphar, Inc. * * *
. “From the pleadings in both cases it conclusively appears and it was admitted by the appellee that he was the attorney and broker of the appellants. That he prepared exhibit A in which he relied in his assumpsit action for commission.”
' The contract executed by the parties was as follows :.
“Dear Mr. Walters:\
“This is to authorize you to sell all of our land contracts which we. now hold in accordance with the following schedule of payments to you.
“1. We will guarantee you the sum of $100 for each contract sold at the discount at which we purchase same.
“2. In -addition .to’the $100 we will pay you 1/2 of the difference realized between the. purchased discount and .that smaller discount obtained at the time of sale. •
.- “If.any contract, ig.sold less than the purchased disr count we will pay you $50 for eách'contract. Such sales to be expressly approved by ourselves.
“This agreement will last for a period of 60- days' (MJP). _ '
_ “If the above terms are agreeable .to - yon kindly sign the duplicate copy and return.
“Approved: /s/ Max Pierson
/s/ Monya Pierson
“Accepted:
/s/ Beryle Walters
“Witness:
Delphine Mercier”
As'indicated by the next to the last paragraph of their statement of facts as quoted and their statement of questions on appeal, appellants claim that the first sentence of the contract required appellee to sell all of the contracts before he was entitled to any compensation. They also .contend that the last sentence in the fourth-paragraph ■ of' the ■ contract, “Such sales to be expressly approved by otirselvés,” applied to the whole contract, rather than, to the paragraph dealing with sales below cost to the Sellers in which it was located. " y
The simple answer to these contentions is -that- ho fair reading Of the contract itself may be" said -to occasion any such interpretation.'.--'
The trial judge apparently paid heed to 'appellants’ claims of existence-.'Of a fiduciary relationship, and reliance of the' appellants upon the draftsmanship of the contract by appellee. Sroka v. Catsman Transit-Mix Concrete, Inc., 350 Mich 672; Gee v. Olson, 320 Mich 274. He allowed considerable oral testimony wherein appellants sought to explain ’the meaning of Claimed ambiguities in the contract.'
At the end of such-testimony, he found that the contract meant what it clearly appears rto say On its face, i.e., that appellee: was “authorized,” but not required, to sell all'of the contracts, and that the sellers’ approval was required as to any land contracts sold below cost. Pertaining to the testimony, he said:
“In arriving at this conclusion, the court deems it only fair to say that it found Mrs. Pierson’s testimony in many instances very questionable of credibility, found that Mrs. Pierson in certain instances testified in a manner the court cannot accept, and finds that Doctor Pierson in his testimony, in many instances, ivas evasive and not forthright and direct. On the other hand, the court finds the testimony of both Mr. Walters, the plaintiff, and Miss Mercier, the other witness, to be forthright and direct on this issue and on other issues.”
Appellee, herein, was both an attorney and a licensed real-estate broker. And the record does not indicate that he always established clearly in which capacity he was acting. Situations wherein lawyers engage in business dealings with clients whom they also represent legally are not favored.
In such matters, the lawyer has the burden of proving perfect fairness on his part. Swaim v. Martin, 158 Ark 469 (251 SW 26). See, also, 7 CJS, Attorney and Client, § 127. A business relationship between attorney and client, in Justice Cooley’s phrase, requires “the utmost good faith” on the part of the attorney. Payne v. Avery, 21 Mich 524, 543. Such a transaction between attorney and client “is a fiduciary one, not measured by the rule of dealing at arm’s length.” Rippey v. Wilson, 280 Mich 233, 243. Where there is, as here, a claim that the fiduciary relationship resulted in a detriment to the client, the courts will scrutinize the transaction with great care. McIntosh v. Fixel, 297 Mich 331. This, we believe, the trial judge did.
We do not deal here with any claim of fraud on the part of the appellee. Apparently appellee produced a number of profitable transactions for appellants, and appellants seek to affirm and take full advantage of them. The disagreement over appellee’s sharing in the profits of the land contracts really arose when appellants discovered how large those profits might prove to be.
We have examined the Lanphar company offer and find that the terms were definite and the “conditions” were standard ones in real-estate purchases. The only land contract which the record discloses might not have met all the conditions was eliminated by the trial judge before computation of damages.
Affirmed. No costs, since appellee filed no brief.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred. | [
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Kavanagh, J.
Plaintiffs sought specific performance of an oral agreement by decedent to recover certain real property, or, in the alternative, to set aside a certain deed.
For some time prior to 1941 decedent, Lillian A. Schmidt, was the owner of 2 separate and adjacent pieces of property upon each of which was located a 4-family rental unit. The property here in dispute concerns the ownership of one of these pieces of property with its accompanying rental unit.
Decedent had 4 children, 2 sons and 2 daughters. Plaintiffs herein are decedent’s sons. One daughter is the defendant. The other daughter is not a party to this action.
During the year 1941 decedent visited the office of an attorney. During the course of such visit 3 deeds and a will were executed. One of the deeds was from decedent to the attorney’s wife, which deed, after recordation, was returned to her attorney-husband. A second deed was from the attorney’s wife to decedent and plaintiffs as “joint tenants with right of survivorship, and not as tenants in common.” The property here in dispute is the land included in this deed. A third deed involving the similar, adjacent piece of property placed title in the decedent and her 2 daughters. The will, drawn the same day, does not mention any of the deeded property. Both the second and third deeds, after recording, were kept in the joint safety deposit box of decedent and the defendant until 1955, when they came under defendant’s exclusive control and possession.
During the latter part of 1953 and the early part of 1954 decedent and defendant’s son, who was at that time employed by the United States internal revenue service, discussed decedent’s property matters. These discussions resulted in recommendations by defendant’s son that decedent get these properties hack from her children and then make a testamentary disposition hack to them. This transaction was supposed to result in a favorable tax benefit for the children. The decedent was not financially interested in the transaction.
On June 15, 1954, decedent held a meeting with plaintiffs. At this meeting decedent stated she had some time before put the property here involved in her sons’ names and the adjacent property in her daughters’ names. She mentioned the advice she had received relative to a tax advantage for the children if the property were deeded back to her, and decedent requested such reconveyance by the plaintiffs. Decedent told plaintiffs this transaction wouldn’t change anything and that they would get the property back just as it was. Therefore, plaintiffs followed decedent’s request and deeded the property hack to her.
On the following day, at a similar meeting between decedent and her daughters, the latter deeded the other piece of property to decedent after substantially the same discussion and request had been made by decedent.
Approximately 3 weeks later decedent made a will wherein she specifically devised her property to her 4 children, share and share alike.
On July 25, 1955, decedent made another will, her last, wherein she specifically devised both the properties formerly deeded to the 4 children to defendant alone.
In September, 1957, decedent died. Upon admission of the 1955 will to probate, plaintiffs brought this action, in the alternative, either (1) to set aside plaintiffs’ 1954 deed to decedent, or (2) to conxpel specific performance of decedent’s promise to reconvey the property here in question to plaintiffs as joint tenants.
Upon trial in the circuit court it was found as a matter of fact there was delivery of the 1941 deed; that plaintiffs’ deed back to decedent was made for tax purposes only; and that decedent promised plaintiffs she would return the property to them. In accordance with such findings the court decreed specific performance by defendant of such promise of the decedent. Prom such decree, defendant appeals to this Court.
Upon this appeal defendant claims there was no valid delivery of the 1941 deed by decedent nor acceptance of such deed by plaintiffs. Defendant also contends certain testimony of the wife of one of the plaintiffs was improperly admitted contrary to the dead man’s statute, CL 1948, § 617.65 (Stat Ann § 27.914). Defendant further alleges no contract was proven between decedent and plaintiffs whereby the former promised to will or otherwise reconvey a portion of her property to plaintiffs upon her death.
Concerning the question of delivery of the 1941 deed, the following facts must be considered as found by the lower court from the testimony and evidence presented at the trial. Decedent told her daughter Elsie, who is not a party to this suit, while on their way home after decedent executed the deeds, that she had deeded the back flat to the boys (plaintiffs) and the front flat to the girls. Defendant also admitted decedent told her the same thing later. The 3 deeds executed iii 1941 were all recorded. The one from .decedent to the wife of the attorney who drew up the deeds for decedent was returned to such attorney. The other 2 deeds were returned to decedent and placed in a safety deposit box held in the joint names of decedent and defendant and after decedent’s death in the sole possession of defendant. Various witnesses testified decedent had said she wished the property deeded back to her as a tax benefit could accrue to the children and that such re-conveyance wouldn’t change anything.
In the case of Hynes v. Halstead, 282 Mich 627, the Court held that the act of delivery is not necessarily a transfer of the possession of the instrument to the grantee, and an acceptance by him, but it is that act of the grantor, indicated either by acts or words, or both, which shows an intention on his part to perfect the transaction by a surrender of the instrument to the grantee, or to some third person for his use and benefit. In the instant case decedent had the deeds recorded and told others, both at the time of the execution of the deeds and at later times, that she had deeded the property to her children, one flat to her sons and the other to her daughters. Decedent further failed to mention the deeded property in her will drawn on the same day the deeds were executed. At the meetings of June 15 and 16,1954, decedent' requested a reconveyance of the property by her children to enable them to obtain a tax benefit. All of these words and acts were indicative of an intention by decedent to convey the property to the grantees.
Defendant contends the delivery of the deed to the property here in question by the decedent through the straw man (the wife of the attorney who drew up thé deeds) to herself and plaintiffs jointly did not constitute delivery to plaintiffs. The governing-principle in answer to this contention was enunciated in the case of Mayhew v. Wilhelm, 249 Mich 640, where the Court stated the following rule (p 646):
“Delivery to one of several joint grantees, in the absence of proof to the contrary, is delivery to all of the grantees.”
In the Mayhew Case the decedent mother had deeds executed through a straw man from the mother, as grantor, back to herself and her 3 children as joint tenants, as grantees. The mother had the instruments recorded and returned to her, where they remained until her death. The mother also made a will simultaneously with her creation of the joint tenancies bequeathing her personalty. The Court found an effective delivery existed and granted relief accordingly.
The case of Reed v. Mack, 344 Mich 391, involved the following factual situation: Plaintiff, one of several joint grantees, brought action against a co-grantee to establish her right to a 1/2 interest in the deeded property. The defendant joint cograntee was also one of the grantors (along with her husband) who had the property deeded back to herself as 1 of 3 joint cograntees. Upon execution, the deed was returned to defendant who subsequently had it recorded and returned to herself, and retained complete custody of it. At least 1 and perhaps both of the other 2 joint cograntees did not appear to have learned of the deed until several years after the recording of the deed. In affirming the decision of the lower court and holding a valid delivery had been effectuated, the Court said (p 397):
“We are in agreement with the trial court. The defendant-appellant, a grantor in the deed, caused the recording of the deed, the delivery of which she attacks. The recording of a warranty deed may, under some circumstances, be effectual to show delivery. Compton v. White, 86 Mich 33. A delivery to one of several joint grantees, in absence of proof to the contrary, is delivery to all. Mayhew v. Wilhelm, 249 Mich 640. While placing a deed on record does not' in itself necessarily establish delivery (Camp v. Guaranty Trust Co., 262 Mich 223), the recording of a deed raises a presumption of delivery, and the whole object of delivery is to indicate an intent by the grantor to give effect to the instrument. Gibson v. Dymon, 281 Mich 137.”
Defendant contends the case of Wilcox v. Wilcox, 283 Mich 313, is in point as showing a lack of delivery under the instant facts. In Wilcox the grantor-defendant wished to make a testamentary disposition of her property. She deeded the property through a straw man to herself and plaintiff as joint tenants with right of survivorship. The deed was returned to defendant and retained by her. Upon a subsequent dispute the plaintiff cograntee secretly had the deed removed from defendant’s deposit box and recorded. Under such facts the court found the grantor had not intended a present conveyance of an interest in the property and that there was in fact no delivery. The facts in Wilcox and the case at bar are clearly distinguishable. In Wilcox there was no proper recording; here the grantor had the deeds properly recorded. In Wilcox the grantor was alive and testified the deed was not intended as a present conveyance, but was only to take effect upon her death; here the grantor was dead at the time of the suit but had stated, while alive, that she “had deeded” the property to her children. In Wilcox the grantor retained possession of all the deeds; here she did not have possession of the deed to the straw man.
The fact that the plaintiffs were not informed of the existence of the deed until they were requested to reconvey the property to decedent does not mitigate against the effectuation of a valid delivery. Thus it has been stated:
“Where a deed has been recorded, and acted upon by the mutual concurrence of grantor and grantee, that amounts to a delivery, and the fact that it was originally made without the knowledge of the latter, and not manually delivered to him, is of no importance.” (Syllabus, Jackson v. Cleveland, 15 Mich 94 [90 Am Dec 266].)
The above rule was recognized in Gould v. Day, 94 US 405, 412 (24 L ed 232, 234), where the court wrote as follows:
“It is true that Jackson was ignorant of the fact that Anthony had made a deed of the lands to him in 1865, until he was called upon to reeonvey them; but, when informed of the fact, he immediately acted upon the assumed validity and operation of the instrument, and executed the desired conveyance: Now, while it is law that a delivery of a deed is essential to pass an estate, and there can be no delivery without a surrender of the instrument or the right to retain it, such delivery will be presumed, in the absence of direct evidence, from the concurrent acts of the parties recognizing a transfer of the title. The question here is not whether the delivery took place at the date of the deed, but whether it took place at all. The acts of the grantor and grantee — the one in asking a reconveyance and the other in making it— were satisfactory evidence that at that time the delivery had been made, and they justified the finding of the jury that the deed had been accepted by Jackson. Jackson v. Cleveland, 15 Mich 94 (90 Am Dec 266).”
Next, defendant contends there was never a valid acceptance by plaintiffs of the 1941 deed. Defendant does not allege that the plaintiffs were not informed of the 1941 deed at the time reconveyance was sought in 1954, nor does she contend there cannot be valid acceptance of a deed some time subsequent to the execution and delivery of the deed. However, defendant claims that when plaintiffs discovered the existence of the deed, decedent did not have any intention that the deed should be delivered and was, in fact, taking steps to secure the unencumbered title back in herself. Defendant relies upon the following statement in the case of Meade v. Robinson, 234 Mich 322, 329:
“Adult grantees, sui juris, must, to make deeds to them effective and determinative of intervening rights of third persons, actually assent thereto. Assent may be presumed if rejection is not made, but assent cannot be.presumed during a period the grantee had no knowledge of the existence of the deed.”
It is clear that the acceptance of a beneficial grant will ordinarily be presumed. Hynes v. Halstead, 282 Mich 627; Tackaberry v. Monteith, 295 Mich 487. Here there was no evidence showing nonacceptance, but conversely when plaintiff grantees reconveyed the property at the grantor’s request, such act would, indicate acceptance by the grantees. In this connection, the last sentence of the quoted portion of the case of Gould v. Day, 94 US 405, 412 (24 L ed 232, 234), may be restated: '
“The acts of the grantor and grantee — the one iré asking a reconveyance and the other in making it — E were satisfactory evidence that at that time the det livery had been made, and they justified the finding of the jury that the deed had been accepted by Jackson.” (Citing Jackson v. Cleveland, 15 Mich 94 [90 Am Dec 266].) (Emphasis supplied.)
In Flood v. Flood, 295 Mich 366, decedent-grantor negotiated with one Scott for an exchange of property and decedent and his wife executed a warranty deed to Scott and his wife. Since the exchange was not consummated, decedent retained the deed. Sub sequently the deed was recorded by Flood and the following day a deed from the Scotts to defendant (Flood’s son) was recorded. Although the Scotts testified there had been no actual delivery of the deed from decedent to themselves, the Supreme Court found there had been a valid delivery and acceptance. The Court, speaking through Justice Wiest, said (p 369):
“The deed by the Scotts was an act of acceptance thereof for the purpose intended and their deed to defendant vested title beyond assail by heirs at law of the deceased grantor.”
It seems clear there was both a valid delivery and acceptance of the 1941 deed in the case at bar.
Defendant next contends testimony was improperly introduced by allowing the wife of one of the joint-grantee plaintiffs to testify as to matters equally within the knowledge of decedent contrary to statute. Defendant relies on Laird v. Laird, 115 Mich 352, which held the wife of one of the parties is barred from testifying as to matters equally within knowledge of deceased where the matter at issue involves real property.
Plaintiffs contend the wife under the instant facts is not an opposite party, and even if she were, defendant waived the statute by herself testifying as to such matters. Plaintiffs also claim the assailed testimony is not indispensable to plaintiffs’ ease, since other unchallenged witnesses testified to the same facts.
The Laird Case upon which defendant relies held the wife barred by the provisions of the opposite party statute as being a party in interest because she was entitled to homestead and dower rights in any real property of which her husband should die seized.
The reasoning in the Laird Case for excluding the testimony is not applicable to the facts in this case. Here the wife of one of the plaintiffs has no homestead or dower rights in the deeded property. Here the property was conveyed and to he returned in joint tenancy, and the husband could transfer the property free from his wife’s claims at any time. In Midgley v. Walker, 101 Mich 583, 584 (45 Am St Rep 431), this Court said:
“There can he neither dower nor curtesy of an estate held in joint tenancy, and a devise by one joint tenant of his share will he inoperative, inasmuch as the right of survivorship takes precedence.”
See, also Smith v. Smith, 290 Mich 143 (124 ALR 215).
It would also seem defendant has no basis for her claim of the admission of objectionable testimony contrary to the opposite.party statute, since defendant herself testified as to the same matters, thus waiving at trial any protection offered by the statute. It is clear defendant has a direct pecuniary interest in the property, having been willed it by decedent’s last will and testament. When a witness having a pecuniary interest in the estate testifies as to matters equally within the knowledge of the decedent, the witness waives .the protection of the statute and enables testimony to he given by an opposite party. In re Einfeldt’s Estate, 286 Mich 537.
Speaking of waiver of the protection offered by the statute, this Court said in Rock v. Gannon Grocery Co., 246 Mich 545, 551:
“The statute is a shield and not a sword. Death having sealed the lips of one, the statute closes the lips of the other, except in contradiction of testimony given by witnesses having a pecuniary interest in the recovery. The statute recognizes a condition occasioned by death and establishes equality between the living in interest, but does not permit the living, in behalf of their pecuniary interest, to advance a sword from behind the shield and forbid its parry. It-has long been held that the statute may be waived. It is manifestly unfair to permit those having a pecuniary interest in the suit to testify to matters equally within the knowledge of the deceased and to deny the opposite party the right to contradict or be heard with reference to such testimony.”
See, also, Newton v. Freeman, 213 Mich 673; Daniels v. Goodwin Pontiac Co., 348 Mich 121.
In Tackaberry v. Monteith, 295 Mich 487, plaintiff was the daughter and heir-at-law of one John S. Monteith, deceased, and the administratrix of his estate. She was also administratrix of the estate of Caroline Monteith, mother of John S. Monteith and defendant Fred Monteith. Caroline was the former owner of the property in question and occupied it until her death in 1932. John S. Monteith died in 1928. Plaintiff sought to establish the validity of a deed dated April 5, 1918, of the property at issue which purported to have conveyed title to plaintiff’s father, John S. Monteith. Plaintiff also sought cancellation of a deed dated March 29, 1932, which purported to convey the property to defendant. In his cross bill defendant sought cancellation of the 1918 deed. Upon judgment for plaintiff, defendant appealed asserting, inter alia, error in the allowance of testimony by plaintiff as in violation of the opposite party statute. Rejecting such argument, the Supreme Court wrote as follows (p 490):
“At the outset we are confronted with appellant’s claim that the trial judge over defendant’s objection erroneously permitted plaintiff to testify to matters equally within the knowledge of her deceased grandmother. Appellant asserts that as the grantee in the Caroline Monteith deed which plaintiff seeks to have annulled, he stands in the position of an assignee of the deceased (Ripley v. Seligman, 88 Mich 177); and further that plaintiff as the heir-at-law of John S. Monteith is the opposite party in interest to defendant. We think appellant’s contention is correct. CL 1929, §14219 (Stat Ann §27.914); Bailey v. Holden, 113 Mich 402; Sheldon v. Carr, 139 Mich 654.
“But, as pointed out in appellee’s brief, notwithstanding plaintiff’s testimony as to matters equally within the knowledge of Caroline Monteith, deceased, was objectionable, defendant waived the objection by also testifying to matters equally within the knowledge of deceased. The record clearly discloses testimony by defendant of this character. The statute applies in this case equally to plaintiff and defendant.
“ ‘The opposite party by so introducing the prohibited testimony has waived the statute. The other protected party may either: 1. Object to the testimony and rely upon his objection; 2. Let the testimony be received without objection, in which event he also waives the statute; or 3. Notwithstanding his objection, offer equally incompetent testimony as to the same matter, in which event he waives not only his objection but also the statute.’ Newton v. Freeman, 213 Mich 673, 677, 678.”
Lastly, defendant contends there was no competent evidence upon which the court could base its conclusion that a contract existed wherein decedent promised to devise or otherwise leave a specific portion of her property to plaintiffs. The trial court found as a fact such a contract did exist whereby decedent promised plaintiffs they would get the property back. Various witnesses testified unequivocally that decedent promised plaintiffs the reconveyance to her wouldn’t change anything and plaintiffs would get the property back. Previous to such promise the tax benefit was explained to plaintiffs by decedent telling plaintiffs a tax saving could be realized by them if they deeded the property back to her.
"Weighing all the testimony in the light of the entire record clearly shows a contract was formed. All witnesses to the transaction involving the 1954 re-conveyance testified the purpose of the action was to effect a tax saving for the children. It is clear plaintiffs could not receive any tax benefit if the property were not returned to them. All the essentials of a contract were present at the 1954 meeting. Decedent’s attorney-agent, acting on her behalf at the meeting, told plaintiffs that decedent wished the property back. Defendant’s son, who was an internal revenue agent, was also present and told plaintiffs the reason for the reconveyance was to effect a tax benefit for the children. Decedent told plaintiffs they would get the property back and that the re-conveyance wouldn’t change anything. This constituted an offer and promise. Reliance upon such offer by the execution of the deed back to decedent was the acceptance and consideration. Thus a valid contract was established between the parties which was subject to specific performance.
In Jolls v. Burgess, 252 Mich 437, plaintiffs’ father had willed a portion of his estate to his brother. Defendant was a friend and acquaintance of the brother and had been given gifts during his life and willed part of his estate upon the brother’s death. Plaintiffs claimed that before the gifts were given to defendant, the brother (their uncle) had promised he would will them all his property in consideration of their refraining from contesting their father’s will in which he was a beneficiary and which will was subsequently admitted to probate. Plaintiffs alleged violation of the contract and sought specific performance. Defendant denied the existence of any contract." The testimony disclosed plaintiffs’ uncle’s attorney stated his client would leave all his property to plaintiffs if they did not contest their father’s will. After such statement plaintiffs’ counsel asked plaintiffs’ uncle if the statement of his attorney was correct. The uncle nodded and said “Yes.” Relying on such promise, plaintiffs did not contest the will. Other witnesses also testified plaintiffs’ uncle admitted having agreed to will all his property to plaintiffs if they would not contest their father’s will. In affirming the lower court, the Supreme Court held such testimony established the existence of a valid contract and decreed specific performance.
We affirm the trial court’s finding that a valid, enforceable contract was entered into and its decree of specific performance.
Based on the foregoing determination of the issues raised by defendant on this appeal, it is unnecessary to consider other issues raised by appellee in support of the lower court decree. The decree of the circuit court is affirmed. Plaintiffs shall have costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, and Edwards, JJ., concurred.
Souris, J., did not sit.
CL 1948,.§ 617.65 (Stat Ann § 27.914).
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Souris, J.
The only question presented by this case is whether the weekly compensation benefits payable to an employee suffering from an occupational disease compensable under the workmen’s compensation act, PA 1912 (1st Ex Sess), No 10, as amended (CL 1948, §411.1 et seq., as amended [Stat Ann 1950 Kev § 17.141 et seq., as amended]); are determined on the basis of the number of his dependents as of the date of the employee’s disablement or as of the “date of injury”, as that term is defined in section 1, part 2, of the act. †This question requires answer in this case because the employee’s disablement, as that word is defined in the act, occurred substantially aft'er his last day of work in the employment in which he was last subjected to the conditions resulting in his disability and in the interim his dependents increased from 1 to 4.
The facts necessary for- decision are not in dispute. Plaintiff suffers from silicosis. He worked as a foundry employee of defendant from 1926 to 1946. Eleven years later, in 1957, he gave notice of disability to defendant and filed claim for compensation benefits. The referee found that plaintiff knew of his silicotic condition in 19.46 and, therefore, that his notice to defendant and his claim for benefits were not made within the time prescribed by the statute. The appeal board reversed the referee’s order oil'the ground that plaintiff first became disabled from performing the work which caused his disability on October 2, 1957, and that plaintiff had given notice thereof and filed claim therefor within a few days thereafter. The appeal board ruled that the time limitation within which notice must be given and claim must be filed commenced on said date of disability and that plaintiff’s notice and claim were well within such time limitation. The appeal board awarded plaintiff weekly compensation benefits determined, in part, by the number of persons dependent upon him in 1957.
The only error claimed by defendant is that the appeal board should have determined plaintiff’s weekly compensation benefits on the basis of the number of persons dependent upon him in 1946 rather than in 1957. It is defendant’s claim that plaintiff’s dependency status on the “date of injury”, as that term is defined in section 1 of part 2 of the act, determines the rate, of his weekly compensation benefits and that the appeal board disregarded the statutory definition of “date of injury” when it counted plaintiff’s dependents as of 1957.
Part 7 of the act was added by the occupational disease act of 1937, PA 1937, No 61 (CL 1948, § 417.1 et seq., as amended [Stat Ann § 17.220 et seq., as amended]). Claims for compensation for disability caused by silicosis are governed by the provisions of part 7 and also by such other parts of the act as are made applicable by specific reference or by clear implication.
For example, it is necessary to apply section 9 of part 2 to determine the compensation payable in occupational disease cases arising under part 7 as well as in other cases. But, section 9 of part 2 speaks in terms of “time of the injury” in determining dependency status:
“ (a) While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation of 66-2/3% of his average weekly wages, but not more than $33 if such injured employee has no dependents; $36 per week if 1 dependent; $40 if 2 dependents; $45 if 3 dependents; $51 if 4 dependents and $57 if 5 or more dependents. Weekly payments shall in no event be less than $18 if there are no dependents; $20 if 1 dependent; $22 if 2 dependents; $24 if 3 dependents; $26 if 4 dependants; and $28 if 5 or more dependents, * * *
“(b) For the purposes of this section and of section 10, dependency shall be determined as follows:
“The following persons shall be conclusively presumed to be dependent for support upon an injured employee:
“1. The wife of an injured employee living with such employee as such wife at the time of the injury.
“2. A child under the age of 16 years, or over said age, if physically or mentally incapacitated from earning, living with his parent at the time of the injury of such parent.
“(c) In all other cases questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury. * * *
“(e) No increase in payments shall be made for increased numbers of dependents not so dependent at the time of the injury of an employee.”
The term “time of the injury” is clearly more suitable when referring to disabilities resulting from the loss of an eye or an arm or the crushing of a foot than it is when referring to occupational diseases such as silicosis but, by statutory definition, it is made applicable to such diseases. Section 1 of part 2, in pertinent part, provides:
“The term ‘time of injury’ or ‘date of injury’ as used in this act shall in the case of a disease or in the case of an injury not attributable to a single event be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.”
The normal meanings of the words used in sections 1 and 9 of part 2, supra, support defendant’s claim that the appeal board erred, as a matter of law, in finding that plaintiff’s dependency status should be determined as of a date other than in 1946, the last day of work in the employment in which he was last subjected to the conditions resulting in his disability. The record made before the referee, and relied upon by the appeal board, is barren of any evidence to support the board’s implied finding that the time of injury occurred in 1957.
Plaintiff urges upon this Court a construction of the statute with which we cannot agree. His contention may be stated as follows:
Section 2 of part 7 provides that the disablement from occupational disease shall be treated as the happening of a personal injury; section 7 of part 7 requires the appeal board to determine the date of disablement; and section 1 (c) of part 7, as amended by PA 1943, No 245, defines the words “disease” and “disability” as included in the term “personal injury”. Hence, argues plaintiff, “the legislature in clear and express terms settled the problem of ivhen the date of disablement or injury occurred, without the necessity for borrowing from any other part of the act.” In short, plaintiff urges that in part 7 cases, we substitute the term “date of disablement” for the term “time of injury” wherever the latter term is used in section 9 of part 2. Plaintiff’s argument merges “date of disablement” and “date of injury” as applied to occupational disease cases so that not only would the employee’s rights first accrue on the date of disablement found by the board (for example, for purposes o'f determining when notice must be given and claim made), but his weekly compensation benefit rate would also be determined as of such date (for example, for purposes of determining his dependency status, his average weekly wage, et cetera). As plaintiff notes in his brief, in those instances where the employee leaves his employment because he has become disabled from an occupational disease, the “date of injury” as defined in section 1 of part 2 and the “date of disablement” as found by the board pursuant to section 7 of part 7 might coincide and the construction of the statute urged by plaintiff would not affect the result. However, where disablement occurs substantially after the employee leaves his employment, the result might be affected materially if plaintiff’s theory were accepted, as in the case at bar.
Considered alone, sections 2 and 7 of part 7 might be construed to authorize the result reached by the appeal board in this case and urged upon us by plaintiff. But this Court must construe a legislative enactment in its entirety. As this Court has previously stated, one provision may not be construed in such manner as to render another of no effect if such result can be avoided. Brady v. City of Detroit, 353 Mich 243, 248. Earlier, this Court said:
“The entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole.” City of Grand Rapids v. Crocker, 219 Mich 178, 182, 183.
Applying the foregoing standards of statutory construction, some meaning must be given to section 1, part 2, supra, which specifically defines “time of injury”. Plaintiff suggests that that section applies only to injuries caused by repetitive trauma, but this suggestion requires that we ignore the specific legislative statement that it is applicable to “the case of a disease” as well as to “the case of an injury not attributable to a single event”. As indicated above, the meaning to be given to section 1 of part 2 is that it applies to determine the “time of injury” in occupational disease cases as well as in others, as that term is used in section 9 of part 2.
Under part 2 of the act, rights to compensation accrue upon the happening of a personal injury, but in occupational disease cases under part 7 of the act, it is frequently impossible to determine with precision when the personal injury (see section 1 [c] of part 7, which defines “personal injury” to include disease) occurs. Further, if rights to compensation in occupational disease cases accrued upon the happening of the personal injury, the statutory time limitations for giving notice and filing claim would frequently expire before disablement occurred, thereby defeating the very purpose of the act. By section 2 of part 7, the legislature avoided this result. That section provides:
“The disablement of an employee resulting from such disease or disability shall be treated as the happening of a personal injury within the meaning of this act and the procedure and practice provided in this act shall apply to all proceedings under this part except where specifically otherwise provided herein.” CL 1948, § 417.2 (Stat Ann 1950 Eev § 17-.221).
It is significant that the term “happening of a personal injury”, or its equivalent, is found elsewhere in the act only in section 15 of part 2, which sets forth the time limitations within which notice of injury must be given the employer and within which claim for compensation therefor must be made.
By enactment of section 2, part 7, the legislature provided that rights to compensation in occupational disease cases under part 7 shall accrue upon disablement in the same manner as such rights in personal injury cases under part 2 accrue at the time of injury. This Court frequently has held that such rights do accrue upon disablement, and that the statutory time limitations for giving notice and filing claim therefor commence as of the date of disablement. Johnston v. Commerce Pattern Foundry Machine Co., 326 Mich 300; Baughman v. Vicker’s, Inc., 323 Mich 710; Gerlesits v. Lakey Foundry & Machine Co., 319 Mich 229; and Mosier v. Marshall Furnace Co., 318 Mich 113.
The foregoing interpretations of parts 2 and 7 of the act give meaning to all sections thereof. Thus, “date of disablement” determines when rights accrue, when notice must be given, and when claim must be filed, while “time of injury” determines the amount of weekly compensation benefits to be paid to the extent such benefits depend upon an employee’s dependency status and his average weekly wage.
The result in this case discloses an anomalous disparity in the benefits available to the occupational disease victim as compared with the benefits available to the victim of an industrial “accident”. The employee who is immediately disabled by injury, under the act, is entitled to receive compensation in part based upon the number of dependents he had at the time of his disability, the disability in such cases occurring at the same time as the injury. In such cases the legislature has recognized the desirability of basing in part tbe rate of compensation to be paid from tbe moment of disability on tbe number of mouths there are then to be fed, the number of backs there are then to be clothed, and the number of minds there are then to be educated. Should not the victim of a compensable occupational disease, who suffers as much of a disability by disease as his brother suffers by injury, be treated similarly? Are not his dependents to be fed, clothed, and educated from the date of his disability or are only some of them? Who shall say that the victim of a compensable occupational disease should have realized his exposure to unknown danger and should have so arranged his life that at the moment of his disablement there would be no dependents who were not in being on that crucial,, but then apparently insignificant, “date of injury”? Thus do we have 2 standards for the measurement of compensation for victims of industrial disability. It requires little imagination to recognize the need for elimination of such disparity, but if it is to be done, it must be done by this State’s legislature. As Mr. Justice Carr said, in Jones v. Grand Ledge Public Schools, 349 Mich 1, at p 11: “It is not within the province of this Court to read therein a mandate that the legislature has not seen fit to incorporate. Our duty is to apply the law as we find it.”
The appeal board should have determined the weekly benefits to which plaintiff is entitled on the basis of the number of his dependents as of the date of his injury in 1946, as defined in section 1, part 2. To avoid any possible confusion, this opinion holds only that the date of injury, as defined in section 1 of part 2, is the date as of which the number of claimant’s dependents are determined for the purpose of computing the weekly benefits to which he is entitled.
The award of the appeal board is reversed to the extent indicated above, and this cause is remanded to said appeal board solely for determination of plaintiff’s weekly benefits and entry of an award in accordance with this opinion. A question of public concern being involved, no costs will be allowed.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred.
CLS 1956, §412.1 (Stat Arm 1959 Cum Supp §17.151). The issue in this ease is not affeeted by the 1954 amendment to this section.—Reporter.
Section 10, part 7 (CL 1948, § 417.10 [Stat Ann 1950 Rev § 17-.229]).
CLS 195G, §412.9 (Stat Ann 1959 Cum Supp §17.159).—Re-porter.
CL 1948, § 417.7 (Stat Ann 1950 Rev § 17.226) .—Reporter.
CL 1948, § 417.1 (Stat Ann 1950 Rev § 17.220).—Reporter.
CLS 1956, §412.15 (Stat Ann 1959 Cum Supp § 17.165).—Re-porter. | [
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Smith, J.
This is an action by an attorney for his fees. It was alleged in the declaration that plaintiff had performed legal services for defendant over a number of years, for which defendant was indebted to plaintiff in the sum of $3,218.75. The defendant’s answer, which was not included in any appendix submitted to us, denied the indebtedness. Thereafter plaintiff filed an amended declaration which incorporated by reference the allegations of his previously-filed declaration. In addition, the trial court well stated, it pleaded “some conclusions and some evidence,” among which was an allegation by plaintiff in the following words:
“Plaintiff alleges the fact to be that when demand was made upon defendant to pay statements rendered on balance of his account, his only complaint was that he was not certain such legal expense was an allowable deduction on income tax return, saying, Tf I was sure they were allowed, I would pay them.’ ”
No answer was filed to the amended declaration, nor was the pretrial judge apprised of the lack of an answer. In fact, the pretrial statement contains the following: “The parties are satisfied with the present state of the pleadings as modified by this pretrial statement.”
Upon trial to the court without a jury, the trial court concluded that a contract existed between the parties for payment for services rendered at the rate of $20 per hour, and that at such rate he had earned the sum of $900, for which judgment was entered.
Plaintiff’s appeal to this Court counts upon 3 comprehensive “questions.” One involves a pleading point, later to be discussed. Though the other 2 are variously phrased, each relates to plaintiff’s dissatisfaction with the trial court’s determination that the services he rendered justified an award of a smaller sum than he had demanded. It is urged to ns that the trial court disregarded the plaintiff’s books and records, which he alleges substantiated his claims, and that he reduced the total amount of time recorded therein. In short, the complaint is that the trial court did not fully credit his testimony.
Upon this issue of the extent of services rendered, voluminous testimony was taken. The services rendered had to do with the defendant’s income-tax returns over a period of years. Plaintiff introduced evidence of the time he spent on these matters and of the savings he accomplished. These matters were controverted. The defendant disputed the value of the services rendered and denied the accuracy of the time accounts kept.
There is no need to set forth the facts and figures debated below. The trial court, allowing the parties wide latitude in their proofs, resolved these issues of fact as indicated above. He found, among other items, that a certain pattern of entries in plaintiff’s books (repetitive entries for identical amounts of time allegedly put on the client’s affairs) cast doubt upon the accuracy of the whole. Upon a review of the record we cannot say he was in error. Par from disclosing a clear preponderance of the evidence contrary to the trial court’s findings, Triplex Engineering Co. v. Commercial Contracting Corp., 357 Mich 156, it is our opinion that the record amply sustains the findings made.
It seems to be the further claim by appellant that the remark attributed to defendant, “If I was sure they were allowed, I would pay them,” contained in the amended declaration to which no reply was made, constituted an admission which, taken in conjunction with other matters, entitled plaintiff to judgment. Even assuming, without deciding, that the plaintiff pleaded a “material allegation” to which Court Rule No 23, § 2 (1945), applies, and further assuming, without deciding, that he was under no duty to disclose at the pretrial conference that his proofs comprehended an “admission of fact,” arising out of his opponent’s failure to plead to the amended declaration (see Court Rule No 35, § 4 [4] ), the statement does not advance plaintiffs case. Appellant refers us to no proof whatever establishing the expressed condition precedent, namely, that defendant was sure (or, indeed, had reason to be sure) that the charges, here found to be unjustified and excessive by the trial court, “would be allowed.”
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
See revision of section 4, April, 1958, 352 Mich xv.—Reporter. | [
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Kavanagh, J.
This is an appeal of defendant wife from a decree of divorce .entered in the Wayne circuit court on plaintiff husband’s bill of complaint alleging extreme and repeated cruelty. The trial judge granted an absolute divorce, determined alimony and property rights and custody of the minor children.
Defendant appeals claiming plaintiff did not produce testimony justifying a decree of divorce to the plaintiff on the grounds of his wife’s extreme and repeated cruelty, and that the property settlement ordered hy the trial court was arbitrary and inequitable, justifying the setting aside of this property settlement.
The parties were married on October 4, 1947. Two children were born as a result of this marriage. The plaintiff testified that prior to his marriage he was engaged in the tile and marble contracting business, the same business in which his father had been engaged for about 12 to 14 years. He had taken over his father’s business after the latter’s death in July, 1946.
It is apparent from a reading of the record that plaintiff worked hard in his business, became interested in the industry, active in its local association, and eventually became vice-president of the national association. Plaintiff further testified that prior to his marriage he owned 2 lake properties worth $5,000, subsequently sold on land contract, a lot worth $5,000, and an equity of $5,000 in his home and furnishings.
The record discloses that as a result of hard work and a rising real-estate market he was able to parlay these assets into considerable property which at the time of the decree included a home, a gasoline station leased to Socony Mobil Oil Company, 2 land contracts receivable covering the 2 lake properties, 2 automobiles, 7 stores on Ford road in Dearborn, 20 shares of stock in the Bank of Dearborn, a substantial amount of life insurance, furniture and fixtures in his home, and a profitable tile and marble business, all in the short space of approximately 10 years. It is admitted, however, that substantial mortgages exist against most of this property.
It is to be noted that for approximately 3-1/2 years prior to the trial of this cause numerous attempts had been made by the parties, by friends, and by a member of the clergy, to effect a reconcilia tion. For several days prior to the trial the trial judge continued these efforts at reconciliation. All such attempts failed.
The plaintiff alleged in his bill of complaint 22 acts on the part of defendant which he contended constituted extreme and repeated cruelty. On the trial of the cause testimony was introduced in support of each of these allegations, which for the most part were denied by defendant wife. The trial judge found, after listening to the testimony, that defendant wife was guilty of extreme and repeated cruelty.
On de novo review the question before us is whether or not plaintiff established acts of extreme and repeated cruelty entitling him to a divorce. The testimony was conflicting, and the trial court, who saw and heard the parties and their witnesses, was better able to determine their credibility and the weight to be given their testimony, than are we here in the appellate Court in reviewing the case upon a cold printed record.
In Johnson v. Johnson, 314 Mich 376, 382, this Court quoted with approval from Chubb v. Chubb, 297 Mich 501, 506, as follows:
“While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances. Brookhouse v. Brookhouse, 286 Mich 151; Stratmann v. Stratmann, 287 Mich 94; Westgate v. Westgate, 291 Mich 18.”
In the present case there was testimony, which the trial court apparently believed, which established plaintiff’s right to a divorce. We have carefully re viewed the record and are not convinced that we would have reached a different conclusion, had we been sitting as a trial court.
With reference to the property settlement, at a hearing before the friend of the court testimony was taken of disinterested appraisers as to the value of various pieces of property, and consideration was given to the liens and mortgages. A reasonably complete record was made, witnesses were cross-examined by the respective attorneys, and a report and recommendation of the friend of the court was filed, and was in the file at the time of trial in the circuit court. At the close of proofs at the trial in the circuit court, plaintiff’s attorney was assured that the report and recommendation was before the court. Defendant’s counsel contended there was not sufficient evidence to justify a decree and that the court could not accept the recommendations of the friend of the court as a basis for property division.
The court ordered the entry of a decree for plaintiff and followed the recommendations of the friend of the court with respect to the property settlement.
On January 14, 1959, at a hearing before the trial court for the entry of a proposed decree, counsel for defendant objected to the decree because it followed the recommendations of the friend of the court. The trial court agreed to a retrial on the question of property division only.
At the retrial testimony of appraisers, of accountants, and of plaintiff was presented to the court. The court again followed the formula originally recommended by the friend of the court.
The undisputed evidence of the appraisers for both sides established the net worth at $91,001.60. It also established without contradiction that plaintiff had property valued at $15,000 prior to the marriage. The court decreed that plaintiff should pay the defendant the sum of $48,500, $2,000 forthwith and the balance in monthly instalments of $385 per month. In addition, the courtawarded defendant the net equity in their home valued, without dispute, at $22,812.69, furniture and fixtures valued at $4,000, and an automobile valued at $715. The plaintiff was further ordered to pay $30 per week for the support of each child and to pay for their medical and dental services as may be required until they attain 18 years of age. The awards were made a lien on plaintiff’s real estate.
Defendant’s principal objection to the property settlement appears to be that the trial judge failed to give proper weight to exhibit 1, which is a photostat of a financial statement submitted by plaintiff husband to the Public Bank on March 31, 1958, for the purpose of obtaining a mortgage. This exhibit indicated plaintiff’s net worth as $190,500.69. Plaintiff testified on cross-examination by defendant’s counsel that he made this financial statement; that he computed the values of the various pieces of property to the best of his ability; and that the figures represented his best estimate of the worth of the property at the date of the financial statement. Defendant’s claim is that taking 1/2 of plaintiff’s net worth as shown by the Public Bank statement and adding to it certain other admitted assets which were in existence at the time of trial, 1/2 of plaintiff’s net worth would amount to $97,143.03. Defendant further claims that even if you take the figures of plaintiff, the wife is awarded only $74,725 and that because defendant did not receive 1/2 of the property, the property settlement is arbitrary and unreasonable.
The court apparently gave more weight to the testimony of the appraisers, one of whom was an appraiser selected by the defendant, than to the value placed on the property by plaintiff in his fi nancial statement to the Public Bank. In this we think he was correct, since they appear to be qualified appraisers.
In reviewing de novo the instant property settlement, we are mindful of the fact that there is no rigid rule for division of property in divorce actions. While it would appear that if all goes well, possibly the plaintiff might end up with a little better percentage of the property than the wife, this is contingent upon continuing high real estate markets, his ability to meet mortgage payments, continuing good health, and numerous other factors, while the allowance to the wife is reasonably free from such contingencies.
A review of the record in this case indicates that the trial judge gave careful consideration to the property matters and that his findings were not arbitrary or inequitable.
It would appear that a fair and reasonable determination of property matters was made after a lengthy hearing on the matter. This Court cannot say, based upon this record, that the property settlement was unreasonable or arbitrary. The court properly found there was proof of extreme and repeated cruelty and made an equitable disposition of the property under the circumstances. This Court could do no more.
The decree of the lower court is affirmed, with costs to plaintiff.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred. | [
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Long, J.
The plaintiffs declared in an action of assumpsit upon two promissory notes dated June 25, 1889. These notes were for the sums of $200 and $271.11, and were to be paid in 40 and 50 days, respectively, after date. The defendant Victoria Eckhardt filed an affidavit denying the execution of the notes. She also gave notice under the general issue that she did not execute either of them; that they were given without consideration; and that she was not a member of the firm of Heck, Hemel & Eckhardt at the time the notes were made, and had not been a member of that firm since May 14, 1889. The court below directed verdict in favor of the plaintiffs for the amount of the notes and interest.
The notes were executed by Heck in the name of the firm, Heck, Hemel & Eckhardt, and upon the day they bore date. Mrs. Eckhardt was called as a witness in her own behalf, and testified that she was a partner in the firm up to May 18, 1889, when she sold out her interest to the other defendants in this suit for $300, which they gave her in notes, and that from that time forward she had nothing to do with the business. She also testified that after she retired from the firm she advertised the fact in all of the Detroit papers.
The claim upon the part of the plaintiffs is (and this was shown upon the trial) that Mr. Heck was the general manager of the business of Heck, Hemel & Eckhardt, having full control of the financial affairs of the firm, which was carrying on its business in the city of Detroit. In the business the firm notes were issued from time to time, Heck signing the firm name. Several of these notes passed into the hands of the Parsons Lumber Company, and by that company were turned over to the plaintiffs in this suit in the purchase of lumber; the plaintiffs living and carrying on their business in Saginaw. The firm of lleclc, Hemel & Eckhardt gave a note for $586.75, December 8, 1888, to Mr. Parsons, of the Parsons Lumber Company, which was indorsed by him over to the plaintiffs. December 20 another note, for $573.80, of like character, was indorsed over to plaintiffs. On March 26, 1889, one for $550 was also indorsed to plaintiffs. On February 24, 1889, the firm of Heck, Hemel & Eckhardt wrote the plaintiffs in reference to the note of December 8, sending a check to meet the amount of it. March 26 the firm wrote the plaintiffs in reference to the note of December 20, sending a check for $175 to apply upon it, and a renewal note for the balance. May 21 they again wrote the plaintiffs, inclosing three notes for renewal of the note of March 26. June 12 the firm wrote the plaintiffs, inclosing check for $150, to apply upon the notes; and on June 17 wrote again, inclosing check for $200, to apply upon the notes.
During all this time the plaintiffs had no information or advice that Victoria Eckhardt had retired from the firm. They had not seen the notice published in the Detroit papers of the dissolution of the firm, and had taken these notes and renewals directly from the firm, as well as the notes in controversy here, in the usual and ordinary course of business. Mrs. Eckhardt had intrusted the entire business of the firm to Mr. Heck, and must have known of the dealings of the firm with the plaintiffs up to the time she claims to have retired from the firm. While she claims to have published a notice of dissolution in all the Detroit papers, there is no testimony showing or tending to show what this notice contained.
Under this state of facts the court very properly directed a verdict in favor of the plaintiffs. Defendant Eckhardt cannot be heard to say, under the circumstances, that she is released from liability upon these notes. Knowing the business transactions of the firm with the plaintiffs, and that Heck, for the firm, was placing renewal notes in their hands, and that the Parsons Lumber Company was turning out notes giren by her firm to the plaintiffs, she was bound to gire the plaintiffs notice of her retirement. Pars. Partn. 413. She would hare no right to rest upon the assumption that the plaintiffs would see the notice in the Detroit papers, — a hundred miles from their place of business; and upon the facts shown here it was her duty to hare giren them some actual notice of the fact of her retirement.
The rule is well stated in Graves v. Merry, 6 Cow. 701 (16 Amer. Dec. 471, and notes to this case), which holds that notice in a newspaper is sufficient as to such persons as hare had no dealings with the firm; but, when persons hare had dealings with the firm, such persons so dealing must hare actual notice of the dissolution. This is the general rule.
Each case must depend largely upon its own peculiar state of facts; and the case here must be determined upon the facts contained in the record, which show that Mrs. Eckhardt owed a duty to the plaintiffs other than the publication of a notice in a newspaper a hundred miles away from their home and place of business.
Judgment must be affirmed, with costs.
The other Justices concurred.
See Hall v. Heck, 92 Mich. 458. | [
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Durand, J.
This is an action of trover.
The declaration alleges that on March 7, 1888, the plaintiff and one Mark S. Jacobs were copartners in a retail grocery business at Williamston, under the firm name of Eeed & Jacobs, and, as such, were the owners of the stock; that in conducting their copartnership business they bought goods of W. J. Gould & Co., who are the defendants in this action; that on the date above mentioned, and in the absence of the plaintiff from Williamston, his said partner, Mark S. Jacobs, turned over and delivered into the possession of the defendants all the stock of goods, wares, and merchandise, in payment of certain demands', of W. J. Gould & Co. against the firm of Reed & Jacobs,, and also for a further consideration of $384, paid by said defendants to said partner, Mark S. Jacobs. Each count of the declaration alleges substantially that the plaintiff, who was a married man and a householder, was lawfully and individually possessed of an exemption in said stock of goods to the amount of $250, and which right the defendants denied, contrary to the provisions of section 7686, How. Stat.
In order that there might be no doubt as to the claim which plaintiff made in his declaration, plaintiff’s counsel, in opening the case to the jury, used this language:
“This suit is brought for the exemption — $250—which we claim under the law he is entitled to, and that he [Jacobs] could not surrender this over to Mr. G-ould, or anybody else, so as to deprive him of it. Mr. Reed made suitable demand of Mr. G-ould and the firm there for his ■exemption in Detroit, and was refused, and he brought this suit to get his $250 exemption that he thinks Mr. ■Jacobs could not deprive him of, and that is what the suit is for; and, of course, if he should recover it, the recovery will be for the $250 and interest on it at 7 per cent, from the time they took it and converted it.”
In order to still further remove all doubt as to the claim made by the plaintiff in his declaration, and after some discussion as to the introduction of certain testimony, his counsel stated, and the statement does not seem to have met with any objection from any one, as follows:
“Let the record show that defendants consent that the amendment be made at our convenience in the original, by adding to each count the following: f Contrary to the provisions of section 7686, How. Stat.”’
The case was tried by the learned counsel upon both . sides upon this theory, and upon no other. After the -testimony was all in, the learned circuit judge submitted the case to the jury upon an entirely different theory; and, in so far as it is necessary for the purposes of this case, we quote from his charge to the jury:
“A partner, as well as an individual, has by the law certain exemptions; that is, a certain amount of property ' is by the law practically set aside for the use of the debtor and Ms family. But that exemption exists as against levy by execution and as against a forced sale. In my judgment, it don’t apply to this case. The exemption to which one partner is entitled is not an exemption against the legal acts of the other partner. In the final settlement of a partnership stock or partnership interests as between the' partners the property is sold to pay the debts regardless of the exemption, and in a case where the one partner has a right to dispose of the partnership goods there is no exemption as against his right; so the question of exemption is not for your consideration, in my view of the law.
“As has been stated to you by able counsel, the right which each partner has in the partnership business is a right to further that business in the interests of the partnership and in the line of the business. No one partner has a right to destroy the .business intentionally. In my judgment, exigencies may arise in the course of a partnership whereby one partner is authorized to dispose of the whole partnership stock. I am inclined to think that he may do it for the purpose of honestly paying the debts of the firm, but no one partner has a right to dispose of the partnership stock and business, so far as I now can think,' for any .other purpose. No one partner has a right to dispose of the partnership stock for the purpose of defrauding or injuring his copartner. I shall hold, for the purpose of this action, that in case one partner does intentionally dispose of the stock for the purpose of injuring his copartner, and if the purchaser joins with him in that intent and purpose, the remaining partner would have the right of action which has been brought here.
“Now, the question which I shall leave to you is the question of fraud, and no other. If Mr. Jacobs disposed of these goods and this stock to the defendants with the intention and for the purpose of defrauding his partner* Eeed, and not with the honest intention and purpose of paying the debts of the firm, and if Mr. Gould, acting for the defendants in that transaction, knew or understood that the purpose of Jacobs was to fraudulently dispose of this stock of goods, then the plaintiff is entitled to recover. If Jacobs, intending fraud and a fraudulent disposition of the goods, did not dispose of them with an honest intention of paying the debts, and if Gould knew that that was his purpose, and took advantage of it for the purpose of collecting his debt, I shall hold that the plaintiff is entitled to recover; because it was not a simple turning over of the goods in payment of the debt. It went beyond that, and was a sale for a consideration above the indebtedness. But if Gould was not aware of any fraudulent intent on the part of Jacobs, — and, of course, he could not be if Jacobs did not have any, — or if Jacobs did have a fraudulent intent, and Gould was not aware of it, but took this stock of goods for the honest purpose of recovering or securing the indebtedness to his firm, then I hold that the plaintiff cannot recover; that Gould was authorized to so take the stock of goods and buy them with the honest intention of securing and getting the debt due his firm."
The cause was submitted to the jury upon this theory, and they found a verdict for the plaintiff in the sum of $317.46. IJpon this portion of the charge the defendants assign error.
We think the learned circuit judge was wrong in submitting the cause to the jury upon the theory he adopted in his charge to them. The declaration claimed, and the case was tried to the end, upon an entirely different theory, and one in no wise connected with that adopted by the court. If a party is legally entitled to recover for an alleged wrong, it must be in a proceeding reasonably adapted to the purpose, or upon -pleadings framed in such a-manner as to warrant the particular remedy sought for; and a cause should not be submitted to a jury upon a theory not germane to the pleadings, or merely on account of certain equitable considerations which the trial may have disclosed, but which a party can only obtain in such a-proceeding or upon such pleadings as fairly, logically, and legally furnish the court with a basis upon which to grant, the remedy which it is called upon to give.
For the errors stated the judgment of the circuit court is reversed, and a new trial granted. Defendants will recover the costs of this Court.
The other Justices concurred. | [
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ZAHRA, EJ.
This case arises from the sale of various merchandising coupons that also feature a game that provides the coupon purchaser the opportunity to win cash instantly. In this declaratory action, defendants maintained that the sale of these coupons was contrary to Michigan’s lottery law. The circuit court entered an order granting a motion for summary disposition by defendants Department of Consumer and Industry Services (DCIS), Liquor Control Commission (LCC), and Bureau of State Lottery (BSL) and denying a motion for summary disposition by plaintiff F.A.C.E. Trading, Inc., doing business as FACE Card Fromotions (FACE). FACE appeals this order as of right. MCR 7.203(A). The significant issues presented in this case are (1) whether plaintiff was promoting or operating a “lottery” under MCL 750.372; (2) whether plaintiffs conduct amounted to a permissible “game promotion” under MCL 750.372a; and (3) whether plaintiffs conduct was within MCL 750.372(2), an exemption for certain “promotional activity” from the prohibition against lotteries. We conclude that promoting the sale of discount coupons through games of chance constitutes the promotion of a lottery under MCL 750.372 and is not a permissible game promotion under MCL 750.372a. We further conclude that the cash prize game at issue in this case is not exempted promotional activity under MCL 750.372(2). We affirm the circuit court’s order.
I. BASIC FACTS AND PROCEDURAL HISTORY
A. AD-TABS
FACE is a Wisconsin corporation that sells and distributes a product called Ad-Tabs. Ad-Tabs are physically similar to “charity game tickets,” “commonly referred to as a break open ticket or pull-tab[.]” MCL 432.102(5). Ad-Tabs and pull-tabs basically are cardboard tickets that, on one side, have three to five perforated “tabs” that open to reveal hidden symbols. On the other side of a ticket is a grid with two columns. One column has five to eight rows of various combinations of symbols, and the other column contains dollar amounts that correspond to the symbol combinations. The dollar amounts begin at $1 and, depending on the game, escalate in increments up to $200, $225, $250, $300, or $500. If the once-hidden symbols match the symbol combinations delineated on the other side of the Ad-Tab, the purchaser wins the dollar amount indicated next to the combination.
The feature distinguishing Ad-Tabs from pull-tabs are coupons printed on the face of Ad-Tabs. Ad-Tabs offer several different coupons. One example is an Ad-Tab entitled, “Gas and Groceries,” which offers $10 off the retail price of a 24-pack of Campbell’s chicken noodle soup or pork and beans. Ad-Tabs may also contain advertisements from retail companies that offer coupons on other companies’ products. One such Ad-Tab features the “Gold Creek Trading Company,” which offers $5 off a “collectible Zippo lighter,” a “genuine Case pocket knife” or a “Chase Authentics Nascar Driver Jacket.” Similarly, Ad-Tabs from Marathon and Phillips 66 gas stations offer, with a minimum eight-gallon fill-up, a free cappuccino or a coffee and donut. Some Ad-Tabs, for example, “Sports Spin II,” do not offer coupons, but novelties such as “5 Million Dollar bills” that a purchaser can receive for $2 and proof of three purchases from the Sports Spin II Ad-Tab game.
Another feature distinct to Ad-Tabs is that the phrase, “No purchase necessary,” is printed somewhere on the ticket. While additional language surrounding this statement may vary slightly on different Ad-Tabs, each refers to the official Ad-Tabs game rules, which provide, in part:
To enter without a purchase: (a) ask the participating retailer for an official game piece request form and legibly hand print all the information requested on the form; or (b) call 800-603-3223 to request an official game piece request form; or (c) on a sheet of white paper no smaller than 3” by 5”, legibly print your name, address, city, state, zip code, age, the name of the promotion for which you are requesting a game piece, and the name and address of the retail establishment at which you will redeem the game piece if it is a winning game piece.
B. THE SALE OF AD-TABS
FACE pays an outside company to print Ad-Tabs and ship them to FACE, which generally sells them to independent distributors, who in turn sell them to local retailers. Retailers, including convenience stores, bowling alleys, restaurants, and taverns, sell Ad-Tabs to the general public. If a purchaser wins the cash prize game, the retailer pays the winner. However, if a person participating in the “no purchase necessary” option wins the cash prize game, FACE pays the winner.
Retailers make Ad-Tabs available for sale through mechanical dispensing machines that resemble candy or cigarette vending machines, or retailers directly sell them to purchasers out of a transparent plastic barrel. The front of the vending machine often states, in a large typeface, “Win cash instantly.” Many of the vending machines have randomly blinking lights, and some even flash “play” and “win” at three-second intervals. The vending machines accept $1, $5, $10, and $20 denominations, but do not make change.
Retailers purchase Ad-Tabs in sets of approximately 3,000, each ticket costing about ten to 12 cents. Each set of Ad-Tabs has a certain number of winning cash prize games. Along with the set of Ad-Tabs, retailers also receive the Ad-Tabs official rules, a winners list form, two Ad-Tabs “no purchase necessary” forms, and a “compliance/registration form.” Retailers must complete this form before selling Ad-Tabs. The form requires, in general, that retailers redeem the cash game prizes, display posters that contain abbreviated game rules and information regarding prizes and odds near where Ad-Tabs are sold, supply customers with “no purchase necessary” entry forms when requested, load Ad-Tabs into the vending machines with the coupon side showing, not intermingle different sets of Ad-Tabs within the machines, and not sell expired Ad-Tabs.
FACE began selling Ads-Tabs to distributors in the state of Michigan on January 31, 2001. Six million Ad-Tabs have been sold in Michigan. FACE estimates its yearly sales of Ad-Tabs in Michigan at 2,067,683. In Michigan, “five [Ad-Tabs tickets] have been provided in response to requests under the ‘no purchase necessary’ free chance to win option ... ,”
C. PROCEDURAL HISTORY
Shortly after retailers began to sell Ad-Tabs in Michigan, the LCC began issuing citations to retailers who held liquor licenses on the basis that the sale of Ad-Tabs constituted unlawful gambling. In response, FACE filed this action, seeking a declaratory judgment that Ad-Tabs were not illegal lotteries and that Ad-Tabs complied with MCL 750.372a, which regulates “game promotions.” FACE also filed a motion for a preliminary injunction to stay defendants’ enforcement proceedings against retailers, pending disposition of the declaratory action. Following a hearing, the circuit court granted FACE’S motion.
Following discovery, FACE and defendants filed cross-motions for summary disposition. The circuit court conducted a hearing on the cross-motions for summary disposition and, on June 3, 2004, issued a written opinion granting summary disposition to defendants. The circuit court rejected FACE’S argument that purchasers only pay for coupons when purchasing Ad-Tabs and concluded that the sale of Ad-Tabs constituted a lottery under MCL 750.372(1). The court also concluded that the cash prize game was not permitted “promotional activity” under MCL 750.372(2), because Ad-Tabs are primarily a lottery, and the cash prize game is not “clearly occasional and ancillary” to the sale of Ad-Tabs. Last, the court concluded that Ad-Tabs are not a “game promotion” under MCL 750.372a, reiterating that the sale of Ad-Tabs constituted a lottery under MCL 750.372(1).
After the circuit court entered the order from which FACE appealed, FACE filed a motion to “stay judgment and maintain preliminary injunction pending appeal.” The circuit court entered an order maintaining the preliminary injunction pending disposition of a motion for stay that FACE had filed with this Court. This Court denied FACE’S motion to stay, and our Supreme Court denied FACE’S application for leave to appeal this Court’s order. Thus, currently, the judgment is not stayed, the preliminary injunction is dissolved, and FACE is not selling Ad-Tabs in Michigan.
II. ANALYSIS
A. DEFENDANTS NEED NOT ESTABLISH THEIR POSITION BEYOND A REASONABLE DOUBT
We first address FACE’S assertion that defendants must prove beyond a reasonable doubt that the sale of Ad-Tabs constitutes a lottery. The applicable burden of proof presents a question of law that is reviewed de novo on appeal. See Pickering v Pickering, 253 Mich App 694, 697; 659 NW2d 649 (2002); Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001).
FACE brought this action under MCR 2.605 to prevent the LCC from enforcing 1999 AC, R 436.1013 against FACE’S customers who sold Ad-Tabs. MCR 2.605 is contained within chapter 2 of the Michigan Court Rules, entitled “Civil Procedure,” and provides, in part, that
[i]n a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted. [MCR 2.605(A)(1).]
We conclude that the circuit court properly refused to impose on defendants the obligation of establishing their position beyond a reasonable doubt. “The function of a standard of proof... is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ” Addington v Texas, 441 US 418, 423; 99 S Ct 1804; 60 L Ed 2d 323 (1979), quoting In Re Winship, 397 US 358, 370; 90 S Ct 1068; 25 L Ed 2d 368 (1970) (Harlan, J., concurring).
“[T]he ‘beyond a reasonable doubt’ standard historically has been reserved for criminal cases.” Addington, supra at 428.
In a criminal case,... the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. [Id. at 423.]
“[The beyond a reasonable doubt] standard of proof. . . is regarded as a critical part of the ‘moral force of the criminal law,’ and we should hesitate to apply it too broadly or casually in noncriminal cases.” Id. at 428 (citations omitted).
Although historically limited to criminal cases, whether the “beyond a reasonable doubt” standard is applicable to a particular proceeding turns on the nature of that proceeding. Courts are not bound by labels in determining whether the “beyond a reasonable doubt” standard is required. Addington, supra at 426; In re Petition of Wayne Co Treasurer for Foreclosure, 265 Mich App 285, 299; 698 NW2d 879 (2005). To do so would place form over substance. In re Petition of Wayne Co Treasurer, supra; Kostyu v Dep’t of Treasury, 170 Mich App 123, 130; 427 NW2d 566 (1988). That is, though a proceeding may be labeled “civil,” due process may nonetheless require proof beyond a reasonable doubt if that proceeding is punitive and may result in incarceration against one’s will. Addington, supra at 423.
We conclude that there is no right requiring the “proof beyond a reasonable doubt” standard be applied in declaratory actions. Declaratory actions are not an exercise of state power in any punitive sense. Rather, the court makes only a declaration of “the rights and other legal relations of an interested party seeking a declaratory judgment[.]” MCR 2.605(A)(1). Also, declaratory actions “can in no sense be equated to a criminal prosecution.” Addington, supra; compare Win-ship, supra (involving a delinquency proceeding). Rather, declaratory actions are civil in nature and result in a “ ‘binding adjudication of the rights and status of litigants . .. [that] is conclusive in a subsequent action between the parties as to the matters declared ....’” Associated Builders & Contractors v Dep’t of Consumer & Industry Services Director, 472 Mich 117, 124; 693 NW2d 374 (2005), quoting Black’s Law Dictionary (6th ed). Thus, there is no right to demand the proof “beyond a reasonable doubt” standard in declaratory actions.
Further, in this case, no state power has been exercised against FACE in any sense. As mentioned, FACE sued defendants to prevent the LCC from enforcing Rule 436.1013 against FACE’S customers who sold Ad-Tabs. Moreover, because only the rights and status of FACE and defendants are involved, FACE’S criminal liability is not implicated. We conclude that due process does not require application of the “beyond a reasonable doubt” standard in this proceeding. Accordingly, we agree with the circuit court that defendants need not prove beyond a reasonable doubt that the sale of Ad-Tabs constitutes a lottery.
B. THE SALE OF AD-TABS CONSTITUTES THE PROMOTION OR OPERATION OF A LOTTERY UNDER MCL 750.372(1)
MCL 750.372(1) provides, in part, that a person shall not “[s]et up or promote within this state any lottery or gift enterprise for money.” MCL 750.372(l)(a). FACE argues the sale of Ad-Tabs is not contrary to Michigan law because the sale of Ad-Tabs does not constitute the setting up or promotion of a lottery-under MCL 750.372(1). We disagree.
“ '[O]ur primary task in construing a statute, is to discern and give effect to the intent of the Legislature.’ ” Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004), quoting Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). When given their common and ordinary meaning, Veenstra v Washtenaw Country Club, 466 Mich 155, 160, 645 NW2d 643 (2002), citing MCL 8.3a, “[t]he words of a statute provide ‘the most reliable evidence of its intent,’ ” Sun Valley, supra, quoting United States v Turkette, 452 US 576, 593, 101 S Ct 2524, 69 L Ed 2d 246 (1981). Further, we may consult dictionary definitions in such situations. Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). “If the statutory language is unambiguous, we must presume that the Legislature intended the meaning it clearly expressed and further construction is neither required nor permitted.” Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005).
The word “lottery” is not defined by statute. Thus, resort to a dictionary is appropriate. “Lottery” is commonly defined as “a gambling game or method of raising money in which a large number of tickets are sold and a drawing is held for prizes,” “a drawing of lots,” and “any happening or process that is or appears to be determined by chance: Life is a lottery” Random House Webster’s College Dictionary (1997). Applying the dictionary definition of the word “lottery” to the facts presented here, we conclude that the actions taken by FACE amount to the promotion of a lottery. Each Ad-Tabs ticket sells for a sum of money, usually $1. There are at least 3,000 Ad-Tabs tickets in any given game. The participant purchasing an Ad-Tabs ticket is taking a chance that the ticket he or she selects is one of the fewer than 500 winning Ad-Tabs tickets. Whether the participant selects a winning ticket is purely a matter of chance.
We are not persuaded, as argued by FACE, that our Supreme Court has concluded as a matter of law that a lottery cannot be found unless there is evidence to support a finding of “consideration, prize and chance.” Sproat-Temple Theatre Corp v Colonial Theatrical Enterprise, Inc, 276 Mich 127, 129; 267 NW 602 (1936); see People v Wassmus, 214 Mich 42, 45; 182 NW 66 (1921) (“It is said that the essentials of a lottery are: First, consideration; second, prize; third, chance.”); Glover v Malloska, 238 Mich 216, 219; 213 NW 107 (1927) (“The often asserted essentials of a lottery, viz.: consideration, prize, and chance, were all present.”); People v Welch, 269 Mich 449, 452; 257 NW 859 (1934). While consideration, prize, and chance are often common factors found in a lottery, our Supreme Court has noted that the term “lottery” must be construed broadly.
[T]he word “lottery” must be construed in the popular sense, with the view of remedying the mischief intended to be prevented, and to suppress all evasions for the continuance of the mischief. The word lottery is generic. No sooner is it defined by a court than ingenuity evolves some scheme within the mischief discussed, but not quite within the letter of the definition given. This is made very apparent in the large number of cases which we have examined in which various methods of distributing money or goods by chance are examined and discussed. [People v McPhee, 139 Mich 687, 690-691; 103 NW 174 (1905).]
Significantly, our Supreme Court warned against imposing rigorous and formalistic requirements on what constitutes a lottery. In McPhee, the Court observed that courts ought not declare something is not a lottery merely “ ‘because it lacks some element of a lottery according to some particular dictionary’s definition of one, when it has all the other elements, with all the pernicious tendencies, which the State is seeking to prevent.’ ” Id. at 691, quoting Ballock v Maryland, 73 Md 1, 7; 20 A 184 (1890). Thus, while the Supreme Court has indicated that the essentials of a lottery generally are consideration, prize, and chance, these essentials cannot be used to frustrate the plain and ordinary meaning of the word “lottery.”
C. GAME PROMOTION UNDER MCL 750.372a
FACE further contends that even if consideration is not an element necessary to a finding that it is promoting a lottery, the sale of Ad-Tabs is a permissible “game promotion” under MCL 750.372a. We disagree.
MCL 750.372a provides:
(a) For purposes of this section, the term game promotion shall mean any game or contest in which the elements of chance and prize are present but in which the element of consideration is not present.
FACE contends that Ad-Tabs is a “game promotion” because it is a “game or contest in which the elements of chance and prize are present but in which the element of consideration is not present.” We reject FACE’S formalistic contention that being able to play the cash prize game without purchase allows the sale of Ad-Tabs as a “game promotion.” We conclude that the sale of Ad-Tabs was supported by consideration such that FACE cannot be said to have been running a game promotion under MCL 750.372a.
The seminal case addressing a promotional scheme that offered “free” chances to win a prize is Glover, supra. In Glover, the defendant, a gasoline and oil distributor,
conceived the idea that it would aid his business of selling gasoline and oils to retail dealers, to have tickets printed and holders thereof a chance to draw an automobile at monthly drawings. [The defendant] procured the tickets, sold the same at a cent each to his customers, and let them give away the tickets at their retail oil stations, or to any one asking for tickets without making a purchase. [Glover; supra at 217-218.]
The Supreme Court held, under a similar statute prohibiting lotteries, that:
The often asserted essentials of a lottery, viz. consideration, prize, and chance, were all present. [The defendant] sold the tickets to [retailers] for distribution by them in the course of trade to further his pecuniary interest, and this established consideration. The fact that [the defendant] gave some tickets away at fairs and exhibitions and the purchasers of tickets for use in the retail trade gave them away, without pay, to their customers, and sometimes to others, did not at all save the scheme from being a lottery. There was a prize furnished by [the defendant] at each monthly drawing and paid for, in whole or in part, by [the retailers] in the purchase of tickets to be given out in the course of retail trade. Chance determined the winners at the drawings. [Id. at 219.]
Here, just as the defendant in Glover, FACE “sold the tickets to [retailers] for distribution by them in the course of trade to further [its] pecuniary interest^]” Id. The game of chance was offered “free” to the purchaser from the retailer, who claimed only to be selling a product, whether gas, oil, or coupons. Likewise, in Glover and here, the game of chance did not require product to be purchased because participation was “free” by request. Thus, we conclude that the “no purchase necessary” method of entry does not render the transaction free of consideration.
FACE attempts to distinguish Glover by claiming that it involved “indirect” consideration that is not present in this case. The notion of “indirect” consideration stems from the Colonial Theatre cases (Sproat-Temple, supra, and United-Detroit Theaters Corp v Colonial Theatrical Enterprise, Inc, 280 Mich 425; 273 NW 756 [1937]). In those cases, the theaters gave numbered tickets to their patrons and to those nearby the theaters who requested a ticket. The theaters later drew numbers from a lot, and persons holding the matching tickets received prizes. In each case, our Supreme Court indicated that prizes attracted persons to the theaters that otherwise would not have attended. The Supreme Court observed that, “ ‘while the patrons may not pay, and the [theaters] may not receive any direct consideration, there is an indirect consideration paid and received.’ ” Sproat-Temple, supra at 130 (citation deleted); see also United-Detroit Theaters Corp, supra at 429.
In contrast to the Colonial Theatre cases, our Supreme Court in ACF Wrigley Stores, Inc v Wayne Prosecuting Attorney, 359 Mich 215; 102 NW2d 545 (1960), held that a television giveaway program was not an illegal lottery. FACE notes that in the Colonial Theatre cases the game under scrutiny “required the participants’ presence, either in the theatre or in the immediate vicinity[.]” Id. at 223. Conversely, in ACF Wrigley Stores the game participants were not required to be present. On the basis of this distinction, FACE maintains that ACF Wrigley Stores broadly held that indirect consideration, in the least, requires that participants be present to enter a game of chance. FACE argues that because Ad-Tabs’ “no purchase necessary” option does not require participants’ presence, there is no indirect consideration.
We find no merit to this argument. In ACF Wrigley Stores, the game of chance did not promote the purchase of any item, but only promoted further television viewing. On the other hand, the game of chance in the Colonial Theatre cases, by increasing foot traffic, promoted the purchase of theatre tickets. Our Supreme Court expressly indicated that, in each of the Colonial Theatre cases, the “indirect” consideration resulted in direct financial benefit or profit to the theaters. Sproat Temple, supra at 130; United-Detroit Theaters Corp, supra at 429. Here, like the defendants in Glover and the Colonial Theatre cases, FACE used games of chance to promote the purchase of items that directly furthered its pecuniary interest.
We conclude the sale of Ad-Tabs was supported by consideration and, therefore, cannot be a game promotion permissible under MCL 750.372a.
D. PROMOTIONAL ACTIVITY UNDER MCL 750.372(2)
FACE also argues that even if the sale of Ad-Tabs constitutes a lottery under MCL 750.372 and is not a permissible game activity under MCL 750.372a, the sale of Ad-Tabs is nonetheless permitted “promotional activity” under MCL 750.372(2), which provides an express exception to the prohibition of the promotion or operation of a lottery in MCL 750.372(1). MCL 750.372(2) provides:
Subsection (1) does not apply to a lottery or gift enterprise conducted by a person as a promotional activity that is clearly occasional and ancillary to the primary business of that person. As used in this subsection, “promotional activity” means an activity that is calculated to promote a business enterprise or the sale of its products or services, but does not include a lottery or gift enterprise involving the payment of money solely for the chance or opportunity to win a prize or a lottery or gift enterprise that may be entered by purchasing a product or service for substantially more than its fair market value.
By its express terms, MCL 750.372(2) concerns promotional activity that is “calculated to promote a business enterprise or the sale of its products or services.” (Emphasis added). In regard to which business the cash prize game promotes under MCL 750.372(2), the parties’ arguments are ambiguous. For instance, on appeal, FACE maintains that “the Ad-Tabs® game is calculated to promote the sale of discount coupons.” But in response to defendants’ motion for summary disposition, FACE maintained that Ad-Tabs “promot[e the] retailer’s primary business of the sale of alcoholic beverages, non-alcoholic beverages, and/or food items or to participate in recreational, amusement, or games of skill offered by such Ad-Tabs® retailer.” Thus, FACE has maintained, at different times, that Ad-Tabs are calculated to promote both the sale of coupons and the retailer’s business.
Because it is not clear which business or which products of a business the cash prize game promotes under MCL 750.372, it also is not clear which business is conducting the “lottery or gift enterprise... as a promotional activity.” Considering either FACE or the retailer as the person conducting the lottery, we conclude that the cash prize game is not permissible promotional activity.
Considering the retailer as conducting the lottery, the “promotional activity” envisioned under the statute is “an activity that is calculated to promote [the retailer’s] business enterprise or the sale of [the retailer’s] products or services[.]” MCL 750.372(2). We conclude that there is no evidence in the circuit court record supporting a claim that Ad-Tabs are “calculated to promote [the retailer’s] business enterprise or the sale of its products or services[.]” Id. (emphasis added). Rather, the cash prize game is calculated to promote sales of Ad-Tabs coupons. Any promotion of the retailer’s “business enterprise or the sale of its products or services” is merely incidental, certainly not calculated. Id. This is evidenced by the placement of Ad-Tabs vending machines in unrelated business establishments, including taverns, retail stores, and bowling alleys. The cash prize game is calculated to promote the sale of coupons, not to promote the retailer’s “business enterprise or the sale of its products or services.”
Considering FACE as conducting the lottery, the “promotional activity” envisioned under the statute is “activity that is calculated to promote [FACE’s] business enterprise or the sale of [coupons] [.]” MCL 750.372(2). Because the cash prize game is calculated to promote the sale of coupons, FACE engages in “promotional activity.” However, FACE’s promotional activity is not “clearly occasional and ancillary” to FACE’s primary business. FACE’s primary business is the promotion and sale of discount coupons. FACE claims that sets of Ad-Tabs expire and are therefore “occasional.” While different Ad-Tabs may expire at different times, FACE consistently promotes the sale of discount coupons through games of chance. Accordingly, the “promotional activity” in which FACE engages cannot be considered clearly occasional. Further, for the same reason, FACE’s primary business promoting the sale of discount coupons using the games of chance cannot be considered clearly ancillary to FACE’s primary business. Therefore, the promotion of Ad-Tabs through games of chance is not a promotional activity contemplated by the statute.
E. REMAINING ISSUES
Finally, FACE argues that reversal is required on the basis of alleged evidentiary and procedural errors committed by the trial court. Specifically, FACE claims that the circuit court improperly considered affidavits from experts and BSL employees in granting summary disposition in favor of defendants. “Evidence offered in support of or in opposition to the motion [for summary judgment] can be considered only to the extent it is admissible.” Veenstra, supra at 163, citing MCL 2.116(G)(6) and Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999).
In support of the BSL’s motion for summary disposition, the BSL submitted affidavits from a gaming expert witness, Nelson Rose, and expert witnesses from the BSL, Robert Blessing and Michael Peterson. Before the summary disposition hearing, FACE filed separate motions to strike the testimony of the expert witnesses. In each, FACE claimed that the expert witnesses improperly offered ultimate legal conclusions that Ad-Tabs were illegal lotteries.
We conclude that there is no evidence that the circuit court relied on the opinions of any expert witnesses. Although the circuit court did not rule on FACE’S motion in limine to exclude the affidavits of the expert witnesses, the circuit court did not admit the affidavits into evidence. The circuit court’s June 3,2004, opinion does not mention the expert witnesses. More importantly, the circuit court’s opinion is supported by the applicable statutes and relevant case law. The circuit court cites several lottery cases in support of its decision, including People v Brundage, 381 Mich 399, 408; 162 NW2d 659 (1968); People v Weoch, 269 Mich 449; 257 NW2d 859 (1934); Sproat-Temple, supra; United-Detroit Theaters Corp, supra; Glover, supra; McPhee, supra; People ex rel Kelley v Koscot Inter planetary, Inc, 37 Mich App 447; 195 NW2d 43 (1992); Midwestern Enterprises Inc v Stenehjem, 625 NW2d 234 (ND 2001); GA Carney, Ltd v Brzeczek, 117 Ill App3d 478; 453 NE2d 756 (1983); Commonwealth v Wall, 295 Mass 70; 3 NE2d 28 (1936). The circuit court’s opinion relies on either case law or statute, and not on any expert witnesses. Moreover, FACE has not pointed to any aspect of the circuit court’s opinion that indicates that the circuit court relied instead on the opinions of the expert witnesses in rendering its decision. Because there is no indication that the circuit court considered affidavits from the expert witnesses in rendering its decision, we cannot conclude that the circuit court committed error.
FACE similarly argues that circuit court erred in granting defendants summary disposition in relying on affidavits submitted by other BSL employees, including Mark Bentley, Jim Curtis, Alicia Nordmann, David Owen, Thomas Reich, and Allyson Woodruff (hereafter “fact witnesses”). Essentially, the fact witnesses visited approximately 80 Michigan retail establishments that sold Ad-Tabs and recorded their observations in regard to the retailers’ sale of Ad-Tabs to patrons. These observations were later set forth in affidavits filed in support of defendants’ motion for summary disposition.
FACE claims the affidavits were inadmissible because the fact witnesses provided hearsay evidence, in particular, tavern employees’ statements that patrons did not purchase Ad-Tabs for the coupons, but only to play the cash prize game. FACE also challenges the reliability of the fact witnesses’ “investigations,” in which, for instance, the fact witnesses were not able to categorically maintain that Ad-Tabs purchasers did not preserve the coupons independently of the cash prize game. FACE insists that the circuit court relied on the fact witnesses’ affidavits to find that Ad-Tabs coupons were not valuable, which allowed the circuit court to conclude that “the inducement for most coupon purchasers is the game: Buying a coupon is incidental to the overriding motive on the part of most purchasers to win a prize in a game of chance.”
Initially, we note that it is not clear that the circuit court relied on the fact witnesses to render the above finding and conclusion. The circuit court apparently relied on its findings that “[Relatively few people play [the cash prize game] for free,” and “most participants are purchasers of coupons,” to conclude that “[i]t can be reasonably assumed, on the basis of common sense, that virtually all purchasers play the game and some also redeem the coupons.” The circuit court also indicated that “the coupon-redemption rate is low[.]” Though FACE challenges this statement by arguing that its coupon-redemption rate is consistent with the redemption rates of other coupons, FACE fails to posit evidence that those other coupons must be purchased. Given the above statements, we would be inclined to defer to the circuit court’s findings and conclusions relative to the inducement of Ad-Tabs purchasers. However, we need not do so here. As discussed, we rely on FACE’S admissions that the cash prize game promotes the sale of coupons that furthers FACE’S pecuniary interest. Accordingly, we do not consider evidence of the purchasers’ motivations in buying Ad-Tabs beyond that the cash prize game promotes sales of Ad-Tabs. Thus, upon review de novo, we conclude that reasonable minds could not differ in regard to whether the cash prize game promotes the sale of Ad-Tabs. In re Handelsman, 266 Mich App 433, 439; 702 NW2d 641 (2005); West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Further, this Court “ ‘will not reverse when the trial court reached the right result for the wrong reason.’ "H A Smith Lumber & Hardware Co v Decina (On Remand), 265 Mich App 380; 695 NW2d 347 (2005) (citation omitted). Therefore, regardless of whether the fact witnesses’ affidavits would have been admitted and relied on by the circuit court, we conclude that reversal is not required.
III. CONCLUSION
We conclude that the circuit court properly granted defendants summary disposition. The sale of Ad-Tabs constitutes the promotion of a lottery under MCL 750.372. Further, the sale of Ad-Tabs is not a game promotion under MCL 750.372a and does not constitute permitted “promotional activity” under MCL 750.372(2). Finally, we conclude that FACE’S evidentiary and procedural claims of error do not require reversal.
Affirmed.
On some Ad-Tabs in the circuit court record, FACE prints the' discount coupon on the face of the perforated tabs so that it may be torn off and retained before turning in a winning ticket to the retailer.
FACE sometimes sells Ad-Tabs directly to retailers.
We note two published cases from separate state courts that have described Ad-Tabs and the sale of Ad-Tabs. In Sniezek [and FACE Trading, Inc., d/b/a FACE Card Promotions] v Colorado Dep’t of Revenue, 113 P3d 1280, 1281 (Colo App, 2005), the court stated the following:
Ad-Tabs are paper tickets that contain a coupon on one side and a cash prize game on the other. A customer purchases an Ad-Tab from the machine for one dollar per tab.
The cash prize game contains a combination of symbols that are revealed when the purchaser opens the tabs. Various combinations of symbols result in differing levels of prizes, with the prizes ranging from one dollar to five hundred dollars. The purchaser of a “winning” Ad-Tab can redeem the ticket for a cash prize by presenting it to an employee of the establishment where it was purchased. A game piece can also be obtained from EA.C.E. by requesting one via the mail.
The coupons on the reverse side of the Ad-Tab provide a discount for merchandise that can be obtained when the customer tenders the coupon and the purchase price to EA.C.E. or another merchant. Occasionally, more than one coupon is required to purchase the merchandise.
In FACE Trading, Inc v Carter, 821 NE2d 38, 39-40 (Ind App, 2005), the court stated:
Ad-Tabs are two-sided cardboard cards that have a discount coupon on one side and a cash prize game ... on the other side. The game side of the Ad-Tab offers a colorful, thematic legend that reveals what combination of symbols will produce the indicated cash prizes, which range from one dollar to several hundred dollars. The coupon side of the Ad-Tab contains a discount from one of several companies, as well as perforated tabs that a purchaser pulls up to reveal play symbols corresponding to the game. A card’s play symbols indicate that a purchaser has won a cash prize if they match a prize-winning combination of symbols designated on the game side of the Ad-Tab.. ..
The coupon side of the Ad-Tab also includes, in fine print, a disclaimer notifying potential purchasers that no purchase is necessary for a chance to win a cash prize. If a potential purchaser wants a chance to win a cash prize and not pay for the Ad-Tab card, that person must either call a toll free number or write to FACE and ask for a chance to win a cash prize. Upon receipt of the free entry, FACE provides the individual with the Ad-Tab, however, the discount coupon is voided.
Notably, both cases held the sale of Ad-Tabs unlawful under controlling state statutes.
Under Administrative Rule 436.1013, entitled “Gambling and gambling devices prohibited,” “(1) [a liquor] licensee shall not allow unlawful gambling on the licensed premises [and] (2) [a] licensee shall not allow any gambling devices on the licensed premises which are prohibited by the statutes of this state.” 1999 AC, R 436.1013(1) and (2).
Unpublished order of the Court of Appeals, entered July 29, 2004 (Docket No. 256639).
471 Mich 878 (2004). Justices Cavanagh, Kelly, and Markman “would continue the injunction issued by the trial court until completion of the appeal.”
Though decisions from sister state courts are not binding, Continental Cablevision of Michigan, Inc v Roseville, 430 Mich 727, 741 n 16; 425 NW2d 53 (1988), FACE relies heavily on Tipp-It, Inc v Conboy, 257 Neb 219; 596 NW2d 304 (1999). In Tipp-It, the Nebraska Supreme Court decided the applicable of burden of proof under a statute providing “ ‘the right to bring an action in the district court for declaratory judgment under the Uniform Declaratory Judgments Act against the appropriate chief law enforcement officer of the city ... in which the work, material, conduct or live performance is located or is intended to be ... exhibited, for a judicial determination as to whether or not such work, material, conduct or live performance is obscene.’ ” Id. at 223-224 (citation omitted). Because the statute “was intended to provide plaintiffs with a mechanism to test the obscenity issue in a civil action prior to any exposure to criminal prosecution,” the court concluded that “proof beyond a reasonable doubt is the most appropriate standard in civil obscenity cases, instituted pursuant to” the declaratory judgment act. Id. at 225, 228.
Tipp-It addressed the burden of proof under a statute providing for safe-harbor obscenity adjudications, which involve First Amendment concerns not present in the instant case. Indeed, if these concerns were present, we note that Michigan law provides for similar adjudications to determine whether certain material is obscene before.it is displayed. See MCL 722.682(2) (proof that material is not obscene under the clear and convincing evidence standard is an absolute defense to dissemination of obscene material to minors), and MCL 600.2938(9) (an adjudication of nonobscenity is an absolute defense to a criminal action for distribution of obscene material). Because the instant case does not involve the above statutes or the First Amendment, FACE’S reliance on Tipp-It is entirely misplaced, and we reject its claim that defendants must prove beyond a reasonable doubt that the sale or distribution of Ad-Tabs constitutes a lottery.
MCL 750.372(1) also prohibits other activities connected with a lottery, providing that a person shall not:
(b) Dispose of any property, real or personal, goods, chattels, merchandise, or valuable thing by the way of lottery or gift enterprise.
(c) Aid, either by printing or writing, or in any way be concerned in the setting up, managing, or drawing of a lottery or gift enterprise.
(d) In a house, shop, or building owned or occupied by him or her or under his or her control, knowingly permit the setting up, managing, or drawing of any lottery or gift enterprise, or knowingly permit the sale of any lottery ticket or share of a ticket, or any other writing, certificate, bill, goods, chattels, merchandise, token, or other device purporting or intended to entitle the holder or bearer or other person to any prize or gift or any share of or interest in any prize or gift to be drawn in any lottery or gift enterprise.
(e) Knowingly allow money or other property to be raffled off in a house, shop, or building owned or occupied by him or her or allow money or other property to be won by throwing or using dice or by any other game or course of chance.
We shall assume without deciding that if FACE’S activity amounts to a game promotion under MCL 750.372a, it cannot be a lottery under MCL 750.372. However, we observe that MCL 750.372a expressly limits the application of the definition of “game promotion” to the “purposes of this section.” MCL 750.372a(a). The section referred to as “this section” is MCL 750.372a, not MCL 750.372. “Where the language [of a statute] is unambiguous, ‘we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.’ ” Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002), quoting DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). FACE’S argument assumes that the definition of “game promotion” in MCL 750.372a applies to MCL 750.372. However, MCL 750.372 is a different section and the express language of MCL 750.372a clearly shows that the Legislature did not intend the definition of “game promotion” under MCL 750.372a to apply to other sections.
1915 CL 15051 provided:
Every person who shall sell either for himself or for any other person, or shall offer for sale, or shall have in his possession with intent to sell or offer for sale, or to exchange or negotiate, or shall in any wise aid or assist in the selling, negotiating or disposing of a ticket in any such lottery or gift enterprise,. .. shall be punished ....
MCL 750.372(2) does not state that the promotional activity is “an activity that is calculated to promote... business enterprise^] or the sale of [the distributor’s and retailer’s] products or services.” “Where the language [of a statute] is unambiguous, ‘we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must he enforced as written.’ ” Pohutski, supra at 683, quoting DiBenedetto, supra at 402. Here, the statute only permits promotional activity that is calculated to promote a single business or the products of the business, not several different businesses or those businesses’ products.
Given that our analysis does not implicate the inducement of the Ad-Tabs purchaser beyond that the cash prize game promotes the sale of coupons, we need not address FACE’S claim that the circuit court improperly considered issues of motive and intent. Further, for the same reason, we need not address FACE’S claim that the circuit court did not view the Ad-Tabs coupon-redemption rate in the light most favorable to FACE. | [
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FER CURIAM.
Elaintiffs appeal as of right the Court of Claims order denying their motion for summary dispo sition and granting summary disposition to defendant in this class action alleging that MCL 211.905(1) violates equal protection. We affirm.
Plaintiffs challenge a provision of the State Education Tax Act (SETA), MCL 211.901 et seq., that specifies that state education taxes (SETs) collected with city taxes are subject to the same penalties for late payment as other late taxes collected simultaneously. Thus, two taxpayers in two different municipalities who are equally late in paying the same amount of tax may owe a different total amount of tax, interest, and penalties. Plaintiffs allege that this practice violates equal protection: “[Sjection 211.905(1) and its predecessor created classes of similarly situated taxpayers who are treated differently solely because of the location of their taxable property.”
Plaintiff Heidelberg Building, L.L.C., sought class certification “of all persons or entities from whom the City of Ann Arbor or any other city, township or county or Treasury collected penalties, interest and collection charges for State Education Tax payments,” and asked the court to find that any penalties, interest, and collection charges imposed by local tax-collecting authorities (cities, townships, etc.) “are unlawful and that Section 211.905(1) and its predecessor are, in part, unconstitutional.” The court certified the class as follows:
(1) . All persons or entities from whom the City of Ann Arbor and any other Michigan city, township, county or the Michigan Department of Treasury collected penalties and interest for State Education Tax assessments during the period of time beginning three years prior to the filing of the complaint in this matter and concluding on the effective date of the April 30, 2002 amendment to MCL 211.905(1), which provided that the State Education Tax “shall be subject to the same penalties, interest, and collection charges as city taxes.”
(2) . All persons or entities from whom the City of Ann Arbor and any other Michigan city, township, county or the Michigan Department of Treasury collected penalties and interest for State Education Tax assessments during the period of time beginning three years prior to the filing of the complaint in this matter and concluding with the date of entry of judgment in this matter.
Plaintiffs moved for partial summary disposition under MCR 2.116(0(10), and defendant asked the court to grant it summary disposition under MCR 2.116(I)(2). The court granted summary disposition to defendant, noting:
The State Education Tax Act in Section 5 requires local units of government to collect and distribute the state education tax under the provisions of the General Property-Tax Act and subject to the same penalty, interest, and collection charges as city taxes. The General Property Tax Act in Section 107 [MCL 211.107] provides that the interest, penalty, and collection fees of the Act are applicable to cities and villages if not inconsistent with their charters or ordinance.
The plaintiff claims that this statutory scheme, if you will, violates the equal protection clause of the Fourteenth Amendment. There is no question here that states are subject to the equal protection clause of the Fourteenth Amendment when enacting tax legislation. However, tax statutes are presumed to be constitutional.
The plaintiff has briefed this matter well and presented the Court with a number of cases from other jurisdictions that he has persuasively presented. However, I cannot find any of those cases that are analogous to exactly the situation that we have here.
Here, the Court has to engage in an analysis that asks whether the enactments, classifications, are based on natural distinguishing characteristics and whether they bear a reasonable relationship to the object of the legislation.
In addition, the Court has to inquire as to whether all persons of the same class are included and affected alike, or are immunity and privileges extended to an arbitrary or unreasonable class while denied to others of like kind.
The assessment and imposition of this tax is a matter of statewide concern and it’s assessed and imposed by the State. The collection of the tax, however, has been delegated to and is a matter of local responsibility and concern. If the State imposed and collected different levels of interest based solely on location, I believe there would be a stronger argument for a violation of equal protection. But here the State delegated collection authority to the cities and allowed the cities to set the interest rate for late payments. This classifies taxpayers according to the jurisdiction of the collecting authority, which is a naturally distinguishing characteristic. I believe it bears a reasonable relationship to the object of the legislation because it recognizes the autonomy of local units to control matters of local authority and concern.
While the assessment of the taxes is a state matter, the collection, as I indicated, is a local matter. All persons of the class are included and affected alike.
I do not see a violation of the equal protection clause or the Fourteenth Amendment. There being no factual matters or disputes in this case, judgment should be granted to the defendant under MCR 2.116(I)(2).
This appeal ensued.
Whether MCL 211.905(1) of the SETA violates the state or the federal equal protection clauses, which are coextensive, presents a question of law that this Court reviews de novo. TIG Ins Co, Inc v Dep’t of Treasury, 464 Mich 548, 557; 629 NW2d 402 (2001).
The essence of the Equal Protection Clauses is that the government not treat persons differently on account of certain, largely innate, characteristics that do not justify disparate treatment. Miller v Johnson, 515 US 900, 919; 115 S Ct 2475; 132 L Ed 2d 762 (1995); El Souri v Dep’t of Social Services, 429 Mich 203, 207; 414 NW2d 679 (1987). Conversely, the Equal Protection Clauses do not prohibit disparate treatment with respect to individuals on account of other, presumably more genuinely differentiating, characteristics. Puget Sound Power & Light Co v City of Seattle, 291 US 619; 54 S Ct 542; 78 L Ed 1025 (1934). Moreover, even where the Equal Protection Clauses are implicated, they do not go so far as to prohibit the state from distinguishing between persons, but merely require that “the distinctions that are made not be arbitrary or invidious.” Avery v Midland Co, Texas, 390 US 474, 484; 88 S Ct 1114; 20 L Ed 2d 45 (1968).
When a party raises a viable equal protection challenge, the court is required to apply one of three traditional levels of review, depending on the nature of the alleged classification. The highest level of review, or “strict scrutiny,” is invoked where the law results in classifications based on “suspect” factors such as race, national origin, or ethnicity, none of which are implicated in this case. Plyler v Doe, 457 US 202, 216-217; 102 S Ct 2382; 72 L Ed 2d 786 (1982). Absent the implication of these highly suspect categories, an equal protection challenge requires either rational-basis review or an intermediate, “heightened scrutiny” review.
A. WHERE RATIONAL BASIS APPLIES
Under rational-basis review, courts will uphold legislation as long as that legislation is rationally related to a legitimate government purpose. Dandridge v Williams, 397 US 471, 485; 90 S Ct 1153; 25 L Ed 2d 491 (1970). To prevail under this highly deferential standard of review, a challenger must show that the legislation is “arbitrary and wholly unrelated in a rational way to the objective of the statute.” Smith v Employment Security Comm, 410 Mich 231, 271; 301 NW2d 285 (1981). A classification reviewed on this basis passes constitutional muster if the legislative judgment is supported by any set of facts, either known or which could reasonably be assumed, even if such facts may be debatable. Shavers v Attorney General, 402 Mich 554, 613-614; 267 NW2d 72 (1978). Rational-basis review does not test the wisdom, need, or appropriateness of the legislation, or whether the classification is made with “mathematical nicety,” or even whether it results in some inequity when put into practice. O’Donnell v State Farm Mut Automobile Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979). Rather, the statute is presumed constitutional, and the party challenging it bears a heavy burden of rebutting that presumption. Shavers, supra. [Crego v Coleman, 463 Mich 248, 258-260; 615 NW2d 218 (2000).]
“Absent an imposition on a fundamental right or a suspect class, tax legislation is reviewed to determine whether its classifications bear a rational relation to a legitimate state purpose.” TIG, 464 Mich 550-551. “A rational basis for legislation exists when any set of facts can be reasonably conceived to justify the discrimination.” Kellogg Co v Dep’t of Treasury, 204 Mich App 489, 496; 516 NW2d 108 (1994).
Although the challenged statute does not state the purpose of allowing various municipalities within the state to determine the penalties for late tax payments for themselves, several purposes are conceivable, including ease of administration. The Legislature could have also decided that permitting each town or city to determine its own penalties and interest rates would promote greater acceptance of their legitimacy because aggrieved property owners would be closer to the lawmakers who set the penalties. The Legislature conceivably could have concluded that, in a state that depends on local assessment and collection for property-based taxes, there was a benefit in allowing each jurisdiction to use the same schedule of penalties and interest that it applies to other late taxes, rather than having to compute penalties and interest at different rates for each separately levied tax. The Legislature also conceivably could have found that local governments would be better able to know how to promote timely tax payments and that there was no reason to impose the same penalties on predominantly agricultural communities— where income tends to vary more widely through the year — as on communities dominated by service or manufacturing industries that pay salaries year round. While these are speculative rationales, each one would independently satisfy the test of “any set of facts [that] can be reasonably conceived to justify the discrimination.” Id.
Regarding plaintiffs’ argument that the statutory scheme challenged impermissibly delegates lawmaking power on a state matter, we note that the legislative scheme challenged here provides that the statewide rules for imposing “interest, penalties, collection or administration fees . . . are applicable to all cities and villages if not inconsistent with their respective charters or an ordinance enacted pursuant to their respective charters.” MCL 211.107(1). Thus, rather than vesting discretion in local legislative bodies to waive penalties and interest already accrued, the Michigan Legislature only allows that, where the local government has a system in place for handling penalties and interest for late tax payments, that same system is to be applied to late SET payments as well. Our Supreme Court affirmed that, under MCL 211.107(1), “if a conflict exists between the [General Property Tax Act] and the city charter, the charter governs.” Booker v Detroit, 469 Mich 892, 893 (2003) (Booker III):
We conclude that the Court of Claims did not err in granting summary disposition to defendant.
Affirmed.
MCL 211.905(1), as amended by 2002 PA 244, effective April 30,2002, provides as follows:
Beginning in 1994 through 2002, the tax levied under this act shall be collected and distributed by the local tax collecting unit under the provisions of the general property tax act at the same time as other taxes levied by the local school district for school operating purposes. However, in each year after 1993 if a local school district is not going to levy a tax in that summer but levied a tax in the summer of 1993, and the local tax collecting unit in which the local school district is located is collecting a tax for any taxing unit in that summer, the local tax collecting unit shall collect within that local school district V2 of the tax under this act in that summer. The tax levied under this act that is collected by a city shall become a hen against the property on which assessed in the same manner and on the same date as city taxes or, if the city approves the collection of the tax levied under this act on a date other than the date it collects the city taxes, on July 1. The tax levied under this act that is collected with the city taxes shall be subject to the same penalties, interest, and collection charges as city taxes and, except as otherwise provided in subsection (3), shah be returned as delinquent to the county treasurer in the same maimer and with the same interest, penalties, and fees as city taxes, except as provided in section 89a of the general property tax act, 1893 PA 206, MCL 211.89a. [Emphasis added.]
Plaintiffs’ complaint also included counts for money had and received (requesting the return of the unlawful penalties) and unjust enrichment. Because plaintiffs only appeal the constitutionality of the penalty provision, these counts are not considered here.
3 MCL 211.107(1) states in part, “The requirements of this act relating to the amount and imposition of interest, penalties, collection or administration fees, the procedures for collection of taxes, and the enforcement of tax hens are applicable to all cities and villages if not inconsistent with their respective charters or an ordinance enacted pursuant to their respective charters.”
In Booker III, a case involving tax foreclosure procedures, our Supreme Court partially reversed an opinion by this Court that applied a prior published decision that this Court disagreed with: Booker v Detroit, 251 Mich App 167, 179-185, 650 NW2d 680 (2002) (Booker II), which held that Magee v Detroit, 203 Mich App 228; 511 NW2d 717 (1994) (Booker I), was binding precedent despite the Booker II panel’s disagreement. Thus, the Supreme Court’s partial reversal of Booker II actually affirmed the panel’s opinion that Booker I was wrongly decided. Therefore, our Supreme Court affirmed in Booker III that, under MCL 211.107(1), the Legislature could delegate control of interest, penalties, fees, collection procedures, and lien enforcement to chartered municipalities.
Plaintiffs assert on appeal, but did not argue below, that under the Ann Arbor City Charter, Ann Arbor acts like a township in its collection of state, local, and school taxes, and, therefore, that Ann Arbor charges only a one percent interest penalty on these taxes — the same as the interest penalty townships charge. Plaintiffs assert on appeal that were it not for MCL 211.905(1), cities would charge only one percent on the SET as well. Stated differently, plaintiffs assert on appeal that rather than permitting a city to collect the SET as it does other similar taxes, it compels a city to charge a higher rate. As noted, this argument was not made below, nor is there clear support for the factual predicate of this argument in the record. We note, however, that if this argument had been preserved and if it were, in fact, established, that would present a different issue. | [
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MARKEY, J.
Plaintiff appeals by right the trial court’s order granting summary disposition in favor of the individual defendants, members of the Detroit Fire Department. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Decedents died when they were unable to escape from a fire that engulfed their home. Plaintiff filed a suit alleging that the individual defendants acted in a grossly negligent manner by failing to timely respond to the fire and failing to take effective steps to rescue the trapped individuals.
The individual defendants moved for summary disposition pursuant to MCR 2.116(C)(7) and (10), alleging that the fire was deliberately set and that the arson, not their actions or omissions, proximately caused the deaths. The trial court agreed and granted the motion.
We review de novo a trial court’s decision on a motion for summary disposition. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2002).
Governmental employees are immune from liability for injuries they cause during the course of their employment if they are acting or reasonably believe they are acting within the scope of their authority, if they are engaged in the exercise or discharge of a governmental function, and if their conduct does not amount to gross negligence that is the proximate cause of the injury or damage. Robinson v Detroit, 462 Mich 439, 458; 613 NW2d 307 (2000), citing MCL 691.1407(2). Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(7)(a). To be the proximate cause of an injury, the gross negligence must be “the one most immediate, efficient, and direct cause” preceding the injury. Robinson, supra at 462. Evidence of ordinary negligence does not create a question of fact regarding gross negligence. Maiden v Rozwood, 461 Mich 109, 122-123; 597 NW2d 817 (1999).
Plaintiff argues that the trial court erred by granting summary disposition in favor of the individual defendants. Her theory is that, had the firefighters not acted in a grossly negligent manner, the persons trapped in the house would have been rescued. Plaintiff relies in part on Dean v Childs, 262 Mich App 48, 57-58; 684 NW2d 894 (2004) (Dean 7), rev’d in part 474 Mich 914 (2005) (Dean ID, in which this Court held that evidence that the defendant firefighter sprayed water on a deliberately set fire, “pushing” the fire toward the rear of the residence where other firefighters were attempting to rescue persons trapped inside the house, raised a question of fact regarding whether the defendant acted in a grossly negligent manner.
Our Supreme Court reversed in part this Court’s decision in Dean and remanded for entry of an order granting the defendant’s motion for summary disposition of the plaintiffs claim alleging gross negligence. That Court adopted as the basis for its decision in Dean II Judge Griffin’s opinion dissenting in part in Dean I. Judge GRIFFIN concluded that “the” proximate cause of the deaths of the decedents was the fire itself, not the defendant’s actions in response to the fire. Dean I, supra at 62. Similarly, in this case, decedents died from the fire that engulfed the second and third floors of their home. The fire was advanced by the time the firefighters arrived at the home. Witnesses indicated that the victims could be heard screaming for help after the firefighters arrived; however, no evidence established that the firefighters could have reached the victims or that, if firefighters had acted more aggressively, the victims would have been rescued. The firefighters’ actions did not constitute the proximate cause of decedents’ deaths. MCL 691.1407(2)(c); Robinson, supra at 462. The trial court correctly granted summary disposition in favor of the individual defendants.
We affirm.
JANSEN, J., concurred.
The trial court had previously granted summary disposition in favor of the city.
On appeal, defendants assert that plaintiff failed to establish that they owed a duty to decedents. Defendants did not raise the issue of duty in the context of their motion for summary disposition, and the trial court did not consider the issue in making its decision. Therefore, we need not consider the issue. Our review is limited to issues actually decided by the trial court. Preston v Dep’t of Treasury, 190 Mich App 491, 498; 476 NW2d 455 (1991). | [
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PER CURIAM.
In this case arising from a slip and fall incident, plaintiffs Karen Renny and Charles Renny appeal as of right the Court of Claims order granting defendant Michigan Department of Transportation (MDOT) summary disposition pursuant to MCR 2.116(C)(7) and (C)(8). On appeal, the Rennys argue that the trial court erred in finding that they failed to state a claim within the “public building” exception to governmental immunity. We reverse and remand.
I. BASIC FACTS AND PROCEDURAL HISTORY
On January 8, 2000, the Rennys stopped at a roadside rest area located in Roscommon County, Michigan. There is no dispute that the rest area is within the jurisdiction and control of MDOT, a government agency, and that it is held open to the public. On leaving the restroom building, Karen Renny encountered a patch of snow and ice that was located directly in the path of the building’s doorway. The ice caused Karen Renny to slip and fall, and she sustained various injuries to her right wrist, which injuries required several corrective surgeries. The Rennys filed suit in the Court of Claims against MDOT, seeking recovery for breach of statutory duty, negligence, and loss of consortium.
In their complaint against MDOT, the Rennys alleged that
[the] accumulation of ice and snow occurred as a result of the defective condition of the roof of the building located immediately above [the] entrance/exit way to the building. By way of illustration, not limitation, [the] defective conditions include the failure to install and maintain gutters and downspouts to redirect melting snow and ice on the roof above the entrance/exit away from the walkway.
Alan Burns, an attendant at the rest area, maintained the rest stop daily, clearing snow and ice and salting the walkways. Beginning in 1999, Burns observed that snow and ice would melt off the building roof, as a result of the building’s interior “heat loss,” causing a “slippery spot” to develop and freeze in front of one of the building’s doors. Burns stated that he first notified MDOT that this condition existed in 1999; other evidence suggested that MDOT had been aware of the condition “for many years.” Further evidence indicated that the ongoing condition was presumed to be a result of both a lack of gutters and inadequate ceiling insulation: the purported heat loss and ice and snow melting were consequences of inadequate insulation, and the water runoff and ice formation were consequences of a lack of gutters and downspouts.
MDOT subsequently moved for summary disposition pursuant to MCR 2.116(C)(7) and (C)(8), arguing both that public building design defects are not contem plated by the statutory exception to immunity and that dangerous or defective conditions outside public buildings likewise do not impose liability. The trial court granted MDOT’s motion pursuant to MCR 2.116(C)(7) and (C)(8), concluding that MDOT was entitled to immunity under MCL 691.1406 and Horace v City of Pontiac, because the sidewalk on which Karen Renny fell was not a part of the rest area building.
II. GOVERNMENTAL IMMUNITY
A. STANDARD OF REVIEW
The Rennys argue that we should review this case as having been granted under the standards applicable to MCR 2.116(C)(7). MDOT argues that we should proceed under the standards applicable to MCR 2.116(C)(8).
“Under both subrules, all well-pleaded allegations are accepted as true, and construed most favorably to the nonmoving party.” But in reviewing motions brought pursuant to MCR 2.116(C)(8), review is limited to the pleadings alone. In reviewing motions pursuant to MCR 2.116(C)(7), courts may also consider “the affidavits, depositions, admissions, and other documentary evidence filed by the parties, and determine whether they indicate that defendants are in fact entitled to immunity.” And when considering a motion brought under both MCR 2.116(C)(7) and (C)(8), it is proper for the trial court to review all the material submitted in support of, and in opposition to, the plaintiffs claim.
Because, in ruling on MDOT’s motion for summary disposition, the trial court relied on evidence independent of the allegations in the Rennys’ complaint, we conclude that review under MCR 2.116(C)(7) is more appropriate.
MCR 2.116(C)(7) provides that a motion for summary disposition may be raised on the grounds that a claim is barred because of immunity granted by law. The governmental immunity act, provides “broad immunity from tort liability to governmental agencies whenever they are engaged in the exercise or discharge of a governmental function[.]” To survive a C(7) motion raised on these grounds, the plaintiff must allege facts warranting the application of an exception to governmental immunity. Neither party is required to file supportive material; any documentation that is provided to the court, however, must be admissible as evidence. The plaintiffs well-pleaded, factual allegations, affidavits, or other admissible documentary evidence must be accepted as true and construed in the plaintiffs favor, unless contradicted by documentation submitted by the movant.
We review de novo a trial court’s decision on a motion for summary disposition. If there is no reasonable dispute regarding the facts, either regarding their nature or their legal effect, the question of the applicability of the governmental immunity doctrine is a question of law that we also review de novo. We review de novo questions of statutory interpretation.
B. PUBLIC BUILDING EXCEPTION
The Rennys argue that the trial court erred in granting summary disposition for MDOT on the basis of governmental immunity when Karen Renny’s injuries arose from a known defective condition in a public building that MDOT failed to remedy. More specifically, the Rennys argue that the rest area building was clearly defective because of improper insulation and lack of gutters, thereby causing snow and ice to melt, run off the building roof, and create ice patches in front of the building’s door, a condition that could have been easily prevented by the installation of appropriate insulation and gutters.
MDOT argues, however, that Karen Renny’s injuries must be a direct consequence of a structural defect of the building itself. Transient conditions, like the build-up of ice, MDOT argues, do not satisfy this standard. MDOT contends that a patch of ice on a sidewalk was the condition that gave rise to Karen Renny’s injuries and was a condition that was clearly not “of the building itself,” as is required for liability.
As a general matter, a government agency is immune from tort liability when engaging in a government function, unless the activity engaged in falls within one of several statutory exceptions to the governmental immunity act. Here, it is not disputed that MDOT is a government agency that was engaged in a governmental function while overseeing the subject roadside rest area. However, the “public building” exception, which must be narrowly construed, permits the government agency’s immunity to be pierced. The purpose of the exception is to protect the public from injury by imposing a duty on the government agency to maintain safe public buildings. Accordingly, this exception provides that “[g]overnmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public.” If the governmental agency breaches that obligation, it is
liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place.
The Michigan Supreme Court has expanded on the statutory language of the public building exception to require that a plaintiff meet the following five-pronged test. In order to overcome the general rule of immunity, the claimant must demonstrate that
“(1) a governmental agency is involved, (2) the public building in question was open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period of time or failed to take action reasonably necessary to protect the public against the condition after a reasonable period. ”
The third element is at the heart of this appeal; that is, whether a defective or dangerous condition of the building itself existed. And in analyzing that element, this case requires us to address an issue specifically left unanswered by Wade: whether an action can be cognizably pleaded under the public building exception to governmental immunity where the dangerous condition that directly caused the plaintiffs injury arose from a dangerous or defective condition of the building itself. In the context of this case, that inquiry translates to consideration of whether this action is cognizably pleaded under the public building exception to the governmental immunity doctrine when the patch of ice, which indisputably directly caused Karen Renny’s injury, arose from a dangerous or defective condition of the rest stop building.
(1) EXISTENCE OF A DANGEROUS OR DEFECTIVE CONDITION
Turning to the existence of a defective or dangerous condition of the building, MDOT argues both that the Rennys’ claims center on defective design, a condition that MDOT contends is not excepted under the public building exception to immunity, and that the gravamen of the Rennys’ complaint is, in actuality, negligent supervision, which is an allegation likewise not excepted. However, MDOT’s claiiii that the public building exception does not apply to the Rennys’ claim based on defective design is without merit. The Michigan Supreme Court has held that “a building may be dangerous or defective because of improper design, faulty construction, or the absence of safety devices.” Further, the Court has held that “ ‘[a]s long as the danger of injury is presented by a physical condition of the building, it little matters that the condition arose because of improper design, faulty construction, or absence of safety devices.’ ” Design defects are, therefore, actionable under the public building exception to immunity.
Whether a public building is defectively designed is determined by considering the uses to which it is put — do its uses conform to the building’s intended use. The question turns on the plaintiffs proofs: whether they establish a building defect or, rather, some form of negligence. While cases have acknowledged that negligence, in conjunction with a defect of the building itself, may give rise to liability, the former alone cannot so operate. Contrary to MDOT’s interpretation of the Rennys’ claims, however, there is nothing indicating that their claims hinge on MDOT’s failure to maintain the sidewalk. In fact, record evidence indicates the futility of such maintenance. The Rennys’ claim focuses on the nonexistence of proper gutters and downspouts to redirect melting snow and ice on the roof above the doorway away from the walkway.
Unquestionably, Karen Renny was using the rest area for its designed purpose. Further, the Rennys presented sufficient evidence to the trial court that indicated that heat loss from the building, resulting from inappropriate insulation and a lack of gutters, caused snow and ice to melt, drip, and form slippery spots on the sidewalk; that this condition continuously caused ice patches to form; that no amount of supervision effectively rendered the condition safe; and that the condition had existed seasonally for years. Further, the roof was unquestionably part of the building. Therefore, we conclude that the Rennys pleaded facts sufficient to establish a design defect of the building.
(2) CONDITION OF THE BUILDING ITSELF
Having concluded that a defective condition of the rest stop building did indeed exist, we next consider whether the public building exception may be applied where the dangerous condition that actually and directly caused the plaintiffs injury was not the absence of insulation and gutters, but ice that formed on the sidewalk adjacent to the entrance of the building. Given the evolution and current stance of case law applicable to the public building exception, we conclude that even under the narrow reading required of all exceptions to the governmental immunity doctrine, a cognizable action exists under the public building exception when the plaintiff pleads that the dangerous condition that directly caused the plaintiffs injury was directly attributable to a dangerous or defective condition of the building itself.
(a) REVIEW OF CASE LAW
As mentioned, in addressing this issue we are answering a question specifically left unanswered by Wade: whether an action can be cognizably pleaded under the public building exception to the governmental immunity where the dangerous condition that directly caused the plaintiffs injury arose out of a dangerous or defective condition of the building itself.
In Wade, the plaintiff, a prison inmate, slipped on a slippery substance, grease or oil, that had accumulated on the floor of a correctional facility, a public building. In concluding that the plaintiff could not recover under the public building exception, the Wade Court explained that, under Reardon v Dep’t of Mental Health, the government’s duty to maintain and repair is related to the structural condition of the building, and liability could only be imposed where the injury resulted “from a dangerous or defective condition of the building[.]” Specifically, in Reardon, the Court had clarified the scope of the exception by explaining that “the duty imposed by the public building exception relates to dangers actually presented by the building itself.” Thus, under the Reardon rule, the exception no longer applied to all injuries that were merely incurred inside a public building. In applying the Reardon holding, the Wade Court held that the statutory scheme did not contemplate “transitory conditions” that were, in actuality, claims of negligent janitorial care or failure to perform ordinary daily maintenance, and were not related “to the permanent structure or physical integrity of the building.”
However, when the Wade decision was released, certain decisions explicitly rejecting the narrow Reardon interpretation were still considered good law. In Tilford v Wayne Co Gen Hosp, the Michigan Supreme Court addressed whether the entrance walk of a public building came within the public building exception. In Tilford, the plaintiff slipped and fell on a patch of ice as she was entering Wayne County General Hospital. The Court reasoned that an overly narrow construction of the exception conflicted with the protective purpose of the exception. The Court concluded that “[t]he premises relating to the public’s ingress to and egress from a public building, which are under the exclusive control of the governmental agency, are inextricably connected with the public building itself.” Therefore, under the Tilford holding, ice on a passageway to a public building constituted a dangerous or defective condition under the public building exception.
As indicated in Wade, the Tilford rule was later narrowed considerably. In decisions after Tilford, this Court chose not to extend the reach of the exception to parking lots or other property adjacent to a public building. But with the release of Horace v City of Pontiac, Tilford was specifically overruled.
In the consolidated cases of Horace, the Supreme Court considered two cases related to the condition of walkways adjacent to an entrance or exit of rest areas. In both cases, the Court held that the plaintiffs, each of whom fell in a hole or crack while walking on a cement walkway that was near the entrance of a rest area building but not attached to the building, had failed to plead injuries in avoidance of governmental immunity. While outlining the pertinent case law, the Court declared that Tilford was no longer good law because it was inconsistent with Wade to the extent that “the snow and ice on which the plaintiff fell was a transitory condition not within the public building exception.” The Court explained that its preemptory reversal of the Court of Appeals decision in Henkey v Grand Rapids,
could be understood as standing for the proposition that a fall on snow and ice is not within the exception because it is a transitory condition or that a fall adjacent to an entryway, but still outside the building, is not within the exception because the fall was not a result of the building itself, or both of these propositions.
The Court then opined that only under an impermissibly broad reading of the public building exception could it be held that the exception applied to anything but the building itself. In further analyzing the issue, the Court noted that the Reardon Court had quoted the definition of the word “of” from Black’s Law Dictionary to evaluate the statutory language of the exception. But the Horace Court declined to accept that definitional reference as an indication of the Court’s intention to read the exception broadly. Indeed, the Horace Court explained that the common, nonlegal definition of the term “of,” as provided by Webster’s Collegiate Dictionary, was more appropriate and adopted the following definition “as the most obvious definition applicable here”: “ ‘used to indicate possession.’ ” The Court declined to accept that the ground adjacent to a public building was of the public building. Therefore, under the Horace decision, injuries occurring on property adjacent to a public building, such as on sidewalks and walkways, were no longer encompassed by the public building exception.
Clarifying Horace, however, the Supreme Court later concluded that defective conditions existing on the exterior of a building, but nevertheless of the building itself, are within the public building exception to immunity. In Fane, the Court explained that determinations concerning exterior structures alleged to come under the public building exception rubric involved considering “the characteristics of the building and of the item in question.” “If it must be determined whether the building possesses the item, surely the relative characteristics of both must be evaluated.” Thus, in Fane, liability attached for a defective condition presented on an elevated terrace outside, but leading into, a public building. Central to the Fane Court’s analysis was a finding that the terrace was “physically connected to and not intended to be removed from the building, making the terrace part ‘of a public building.’ ”
In light of the preceding evolution of the public building exception and what we discern as Fane’s judicious retreat from an overly rigid and narrow interpretation of the scope of the exception, we now consider the situation where the plaintiff has pleaded that the dangerous condition that directly caused the plaintiffs injury arose from a dangerous or defective condition of the building itself.
(b) APPLICATION TO PRESENT FACTS
For clarification, we first note that this case is outside the scope of the Fane holding because the sidewalk where Karen Renny fell was not part of the public building — it was not physically connected to the building. And we acknowledge that reading Horace and Wade together leads to the apparent conclusion that liability is not permitted for Karen Renny’s injuries when they occurred as the result of a transitory condition on the ground adjacent to a public building. But Horace is significantly distinguishable because, unlike a hole or crack in the sidewalk, the cause of which was unknown, the cause of Karen Renny’s injury is alleged to have directly emanated from a defective condition of the rest area building. It is for this reason, that we carefully clarify in our holding today that we are in no way attempting to revive the Tilford rule, which would have allowed for liability when a plaintiff slips on ice on a sidewalk merely adjacent to a building. Because Karen Renny slipped on a patch of ice on the sidewalk outside the rest area building and because she alleges that the ice accumulation was directly attributable to a defective condition of the building, we find this case distinguishable from Tilford and Horace.
MDOT argues that, pursuant to Wade, the Rennys cannot establish that a defective condition existed that caused Karen Renny’s injuries because the ice on which Karen Renny slipped was a transitory condition that, at best, establishes a claim for negligent janitorial care. But the Wade Court ruled that the substance on the prison floor was not a defective condition within the meaning of the public building exception to immunity because it was a transitory condition not relating to the building itself. We conclude that this case is distinguishable both because the condition was not transitory and because the injury-causing condition was, arguably, directly attributable to the building’s defective condition.
In Wade, the plaintiff did not allege that the dangerous condition arose from a dangerous or defective condition of the building itself, and the Court, therefore, concluded that the mere accumulation of grease or oil did not amount to a defect in the building itself. But, here, the Rennys specifically alleged that
[the] accumulation of ice and snow occurred as a result of the defective condition of the roof of the building located immediately above [the] entrance/exit way to the building. By way of illustration, not limitation, [the] defective conditions include the failure to install and maintain gutters and downspouts to redirect melting snow and ice on the roof above the entrance/exit away from the walkway.
We conclude that this allegation, that the injury-causing condition arose from a dangerous or defective condition of the building itself, is sufficient to meet the pleading requirement of the public building exception.
We further conclude that the ice and snow patch in this case was not a transitory condition, as those in Wade and Henkey were, because there was evidence presented that the condition was continually present in the cold season. In Pierce, the government defendant attempted to argue that it was not liable because the elevator malfunction that led to the plaintiffs injury was a transitory condition. But this Court distinguished the elevator malfunction from the spill in Wade by noting that Pierce involved an alleged mechanical defect to a physical structure, and the plaintiff had presented evidence of longstanding mechanical problems with the elevator. This Court then concluded that the alleged elevator malfunction was not a transitory condition falling outside the scope of the public building exception. Applying this reasoning to the present case leads to a conclusion that the ice accumulation was not a transitory condition falling outside the scope of the exception because the condition was allegedly caused by a structural design defect in the rest stop building and because the Rennys presented evidence that this was a longstanding problem.
Additionally, with respect to the weight of the Rennys’ evidentiary support, we note that, although not precedentially binding, this Court previously addressed very similar circumstances to those presented in this appeal in Karianen. While this Court concluded that the plaintiff failed to meet her burden in overcoming immunity, it did indicate that, in order for her to do so, she
would have had to produce evidence that the building was defective[,]... [t]hat this defect existed at the time of [her] fall and, combined with the particular conditions that obtained on the day in question, resulted in the formation of an amount of ice that would not have formed had the defect not existed.
Implicit in the Karianen Court’s analysis was the understanding that the demonstration of such a defect — a defect in the building that allowed melting snow to drip onto the sidewalk, causing slip and fall injuries — could satisfy the plaintiffs burden under the public building exception to governmental immunity.
Here, the Rennys provided testimony from various sources that supported a finding that the building was defective, that the defect existed when she fell, and that the conditions resulted in the formation of ice that would not have formed had the defect not existed. As mentioned, rest area attendant Alan Burns testified that beginning in 1999 he observed that snow and ice would melt off the building roof, as a result of the building’s interior “heat loss,” causing a “slippery spot” to develop and freeze in front of one of the building’s doors. Further, in a letter sent to MDOT Resource Analyst Tim Jones, Gloria Burns, manager/chief financial officer of the Roscommon County Road Commission, stated that “[w]ater drip[ped] off of the roof continually.” Similarly, in another letter to Jones, Bob Bedell, Supervisor at the Roscommon County Road Commission, stated that “in the winter it is constantly dripping.” Bedell added that because of the heat loss and moisture problem, “[y]ou can salt it all you want but within the hour it will be ice again.” And Kevin Lewis, who performed the insulation installation, testified that the insulation previously existing in the rest area building was not “adequate insulation to prevent heat loss,” resulting in melting snow and ice. He confirmed that the presence of gutters and downspouts would have prevented melting snow and ice from dripping off the rest area rooftop.
We conclude that Karen Renny’s injury was arguably a direct consequence of the rest area building’s defective condition; that is, we conclude that her injuries could legally be considered to have resulted from a defective condition of the public building itself. We refrain, however, from actually deciding the factual question whether the ice was caused by the defective condition of the building. But considering the Rennys’ pleadings in the light most favorable to them leads us to the conclusion that they have alleged a cause of action under the public building exception. There was a defective condition, albeit one existing on the exterior of the building, that was arguably “of the building itself.” As opposed to sidewalk holes adjacent to the entrance of a public building, as in Horace, the Rennys have not pleaded that a defective condition existed independent of the rest area building. Rather they alleged that a defective condition of the rest area building itself caused Karen Renny’s injuries. Thus, the trial court erred to the extent that it found that the defect causing Karen Renny’s injuries was not “of” the rest area building.
III. CONCLUSION
Construing all reasonable inferences in favor of the Rennys, summary disposition was improper. The Rennys have both alleged sufficient facts to come under the statutory exception to governmental immunity and produced sufficient evidence to establish a valid claim at law.
We reverse and remand for further proceedings. We do not retain jurisdiction.
The Rennys filed a companion case in the Roscommon Circuit Court against the Roscommon County Road Commission and Roscommon Township. The two cases were later consolidated. The parties subsequently stipulated Roscommon Township’s dismissal, and the trial court granted Roscommon County Road Commission summary disposition.
Horace v City of Pontiac, 456 Mich 744; 575 NW2d 762 (1998).
Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992).
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999); Salinas v Genesys Health Sys, 263 Mich App 315, 317; 688 NW2d 112 (2004), citing Churella v Pioneer State Mut Ins Co, 258 Mich App 260, 266; 671 NW2d 125 (2003); MCR 2.116(G)(5).
Poppen v Tovey, 256 Mich App 351, 353-354; 664 NW2d 269 (2003), citing Pusakulich v Ironwood, 247 Mich App 80, 82-83; 635 NW2d 323 (2001); MCR 2.116(G)(6).
Patterson v Kleiman, 447 Mich 429, 431-435; 526 NW2d 879 (1994).
MCL 691.1401 et seq.
Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363 NW2d 641 (1984); see MCL 691.1407(1).
Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001); Smith v Kowalski, 223 Mich App 610, 616; 567 NW2d 463 (1997).
Maiden, supra at 119.
MCR 2.116(G)(5), (6); Maiden, supra at 119; Smith, supra at 616.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
Poppen, supra at 354, citing Diehl v Danuloff, 242 Mich App 120, 123; 618 NW2d 83 (2000); Baker v Waste Mgt of Mich, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995).
American Alternative Ins Co, Inc v York, 470 Mich 28, 30; 679 NW2d 306 (2004).
MCL 691.1407(1); Ross, supra at 620.
MCL 691.1401(b), (d), and (f).
MCL 691.1406.
Fane, supra at 74; Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000).
Steele v Dep't of Corrections, 215 Mich App 710, 713; 546 NW2d 725 (1996).
MCL 691.1406.
21 Id.
22 Fane, supra at 75, quoting Kerbersky v Northern Mich Univ, 458 Mich 525, 529; 582 NW2d 828 (1998); see also Maskery v Univ of Mich Bd of Regents, 468 Mich 609, 614-615; 664 NW2d 165 (2003).
Wade, supra at 169 n 11, 171.
See de Sanchez v Dep’t of Mental Health, 467 Mich 231, 238; 651 NW2d 59 (2002) (providing that injuries resulting from a failure to supervise are not encompassed in the public building exception).
Sewell v Southfield Pub Schools, 456 Mich 670, 675; 576 NW2d 153 (1998) (emphasis added); Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979); Williamson v Dep’t of Mental Health, 176 Mich App 752, 758; 440 NW2d 97 (1989).
Pierce v City of Lansing, 265 Mich App 174, 178; 694 NW2d 65 (2005), quoting Reardon v Dep’t of Mental Health, 430 Mich 398, 410; 424 NW2d 248 (1988).
Sewell, supra at 676.
Id. at 678-681.
See Karianen v Ewen Trout Creek Consolidated School Dist, unpublished opinion per curiam of the Court of Appeals, issued July 31, 1998 (Docket No. 204073), slip op at 2.
See Horace, supra at 756-757 n 9 (stating that an outside overhang is part of the building).
Wade, supra at 169 n 11, 171.
Id. at 160-161.
Reardon, supra at 415-416.
Wade, supra at 163.
Reardon, supra at 415.
Dew v Livonia, 180 Mich App 676, 679; 447 NW2d 764 (1989).
Wade, supra at 161, 168, 170-171.
Tilford v Wayne Co Gen Hosp, 403 Mich 293, 297; 269 NW2d 153 (1978) (opinion by Fitzgerald, J.), overruled by Horace, supra at 750 n 3.
Tilford, supra at 297.
Id. at 299.
Id.
Wade, supra at 167.
See Merritt v Dep’t of Social Services, 184 Mich. App 522, 523; 459 NW2d 10 (1990).
See Hall v Detroit Bd of Ed, 186 Mich App 469, 470-471; 465 NW2d 12 (1990); Dew, supra at 679.
Horace, supra at 750 n 3.
Id. at 747-748, 757-758.
Id. at 750 n 3.
Henkey v Grand Rapids, 185 Mich App 56, 57; 460 NW2d 271 (1990), rev’d 440 Mich 867 (1992).
49 Horace, supra at 750 n 3.
Id. at 754.
Black’s Law Dictionary (5th ed) defines “of” as follows:
A term denoting that from which anything proceeds; indicating origin, source, descent, and the like; as, he is of noble blood. Associated with or connected with, usually in some causal relation, efficient, material, formal, or final. The word has been held equivalent to after; at, or belonging to; in possession of; manufactured by; residing at; from.
Horace, supra at 755, citing Reardon, supra at 410-411.
Id. at 755-756.
Id. at 756.
Id. at 756-757.
Id. at 757.
Fane, supra at 79.
Id. at 77, 80.
Id. at 77.
Id. at 71, 79.
Id. at 79, see also id. at 81.
See Wade, supra at 169 n 11, 171.
Id. at 168-171.
Id. at 169 n 11, 170. In light of that Court’s comments in n 11, we opine that, had the Wade plaintiff alleged, for instance, that the substance on which he slipped had dripped from a pipe incorporated into the building, his claim would have survived summary disposition. It would be as illogical to conclude that the government was immune from liability because the pipe itself did not directly injure the plaintiff as it would be to conclude in this case that the government is immune because Karen Renny was not injured by the roof itself.
Pierce, supra at 181.
Id.
Id.
Karianen, supra.
69 Id. at 2.
MCL 691.1406.
Schutte v Celotex Corp, 196 Mich App 135, 138; 492 NW2d 773 (1992). | [
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] |
MURPHY, J.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendant in this action involving a dispute over the ownership of real property. Plaintiff and defendant hold record title to the property, a homestead, as joint tenants with full rights of survivorship. Plaintiff commenced an action to quiet title, alleging, in part, that she had acquired sole title by virtue of adverse possession. The trial court summarily dismissed the action, finding that plaintiff could not establish, as a matter of law, the requisite elements of adverse possession, specifically, the element of hostility. The thrust of the parties’ arguments on appeal concerns the issue whether the doctrine of adverse possession can be applied between cotenants in a situation in which their property is jointly owned with full rights of survivor-ship. A joint tenancy with full rights of survivorship is composed of a joint life estate with dual contingent remainders. Albro v Allen, 434 Mich 271, 275; 454 NW2d 85 (1990). We conclude that the doctrine of adverse possession is available to the occupying tenant to defeat the ousted cotenant’s life estate interest held in the property, although a heightened level of proof is to be observed when addressing the issue. With respect to the life estate interest, a claim by the ousted life tenant to recover the property, thereby indicating a desire to protect the interest, accrues at the time of the tenant’s disseisin or wrongful ejectment, from which point the 15-year statutory period of adverse possession is measured. We further conclude, however, that the ousted life tenant’s contingent remainder cannot be destroyed through adverse possession by the occupying life tenant because the statutory period in which to file an action to recover the property relative to that particular interest cannot commence to run, at a minimum, until the contingency occurs, i.e., the claim accrues at the death of the occupying life tenant, here plaintiff, which would mark the expiration of the precedent estate. In regard to defendant’s life estate interest, the trial court erred in finding that plaintiff could not establish adverse possession for lack of hostility and erred in granting defendant’s motion for summary disposition where the record reflects, as a matter of law, that the elements of adverse possession were admitted and satisfied, even observing a heightened level of proof. But, also as a matter of law, defendant’s contingent remainder in fee simple remains intact. We reverse in part, affirm in part, and remand for entry of judgment in favor of plaintiff with regard to adverse possession of defendant’s life estate interest and for entry of judgment in favor of defendant relative to his contingent remainder.
I. FACTUAL BACKGROUND, ALLEGATIONS, AND PROCEDURAL HISTORY
Plaintiff and defendant met in 1972. The two became romantically involved, and defendant moved into plaintiffs home. In 1974, the parties moved into the disputed property, which was placed solely in plaintiffs name. Defendant maintained that he subsequently made improvements to the property and assisted with household expenses. In 1981, plaintiff, who had changed her name but had not married defendant, transferred the property to defendant and herself “as joint tenants with fall rights of survivorship.” Defendant contended that he continued to make improvements to the property. In 1985, the parties had a disagreement, and defendant moved out of the home. Defendant alleged in his counterclaim that plaintiff ejected him from the property and has exercised exclusive control and possession of the property. According to defendant, plaintiff refused to provide him with the rental value of the property and refused to sell the property Defendant also alleged that plaintiff wrongfully retained possession of approximately $25,000 worth of his personal property.
Plaintiff alleged that, after defendant left the home, she told him that she intended to retain possession of the property and that “he should have his name removed from the property.” According to plaintiff, defendant refused to do so and told her that he wanted $25,000 to release his interest. Plaintiff asserted that she has had exclusive physical possession of the property since 1985. She further maintained that, since 1985, she has performed all the maintenance, made all the mortgage payments, and solely paid the taxes with respect to the residence. Defendant does not appear to dispute these claims.
On May 12, 2004, plaintiff filed this action to quiet title. Plaintiff claimed that she had obtained exclusive title to the property through adverse possession because she had been in possession of the property since 1985 and the possession was actual, visible, open, notorious, exclusive, continuous, and uninterrupted for the requisite 15-year statutory period. Plaintiff also claimed that she should be awarded possession of the property because she conveyed an interest in the property to defendant in 1981, in exchange for defendant’s agreement to live together and share all expenses, including the mortgage, taxes, insurance, and upkeep, but defendant refused to contribute toward any of the expenses and, therefore, the agreement failed for lack of consideration. Defendant’s counterclaim alleged claims for partition and sale of the real property, conversion of his personal property, and recovery of reasonable rental damages.
The trial court ordered the parties to submit trial briefs on the issue whether the doctrine of adverse possession can be applied between cotenants in a joint tenancy with full rights of survivorship. At a hearing, the trial court determined that because the parties were joint tenants with rights of survivorship, plaintiff could not establish the element of hostility necessary to prove adverse possession. The trial court stated:
Generally, hostile means that the use is inconsistent with the right of the owner, without permission asked or given, and would entitle the owner to a cause of action against the intruder.... In the present action, the parties are joint tenants with the right of survivorship, therefore, plaintiffs sole possession was not hostile. That’s my finding. And the court cannot find that the theory of adverse possession would be applied to these circumstances.
The trial court granted summary disposition in favor of defendant with respect to plaintiffs claim of adverse possession. The trial court also dismissed, without prejudice, plaintiffs alternate theoiy to quiet title, which is best described as a breach of contract claim, and the court dismissed defendant’s counterclaim without prejudice.
II. STANDARD OF REVIEW AND SUMMARY DISPOSITION TEST
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Koenig v South Haven, 460 Mich 667, 674; 597 NW2d 99 (1999). Actions to quiet title are equitable, and this Court reviews de novo equitable decisions. Gorte v Dep’t of Transportation, 202 Mich App 161, 171; 507 NW2d 797 (1993). Questions of statutory construction are also reviewed de novo. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002).
The trial court did not specify the subrule of MCR 2.116(C) under which it granted the motion for summary disposition. We think it clear, however, that the court granted the motion upon reaching the legal conclusion that adverse possession cannot be pursued by a tenant against a cotenant in a joint tenancy with full rights of survivorship because the tenant seeking to advance the claim will be unable to show hostile possession as a matter of law. This ruling is akin to finding that plaintiff failed to state an actionable claim for adverse possession; therefore, MCR 2.116(C)(8) is implicated. MCR 2.116(C)(8) provides for summary dismissal of an action where the plaintiff “has failed to state a claim on which relief can be granted.” A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint solely on the basis of the pleadings. Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). A C(8) motion should be granted if no factual development could possibly justify recovery. Id. at 130.
III. GENERAL PRINCIPLES OF ADVERSE POSSESSION
The basis for a claim of adverse possession is found in MCL 600.5801, which provides, in pertinent part:
No person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within the periods of time prescribed by this section.
Generally, an action for the recovery or possession of land must be brought within 15 years after it accrues. MCL 600.5801(4); Kipka v Fountain, 198 Mich App 435, 438; 499 NW2d 363 (1993). The Kipka panel, addressing the principles of adverse possession, stated:
A claim of adverse possession requires clear and cogent proof that possession has been actual, visible, open, notorious, exclusive, continuous, and uninterrupted for the statutory period of fifteen years. These are not arbitrary requirements, but the logical consequence of someone claiming by adverse possession having the burden of proving that the statute of limitations has expired. To claim by adverse possession, one must show that the property owner of record has had a cause of action for recovery of the land for more than the statutory period. A cause of action does not accrue until the property owner of record has been disseised of the land. MCL 600.5829. Disseisin occurs when the true owner is deprived of possession or displaced by someone exercising the powers and privileges of ownership. [Kipka, supra at 439 (citations omitted).]
Other cases additionally indicate that the possession must be hostile and under cover of a claim of right. McQueen v Black, 168 Mich App 641, 643; 425 NW2d 203 (1988), quoting Connelly v Buckingham, 136 Mich App 462, 467-468; 357 NW2d 70 (1984). “The term ‘hostile’ as employed in the law of adverse possession is a term of art and does not imply ill will”; rather, hostile use is that which is “inconsistent with the right of the owner, without permission asked or given,” and which “would entitle the owner to a cause of action against the intruder.” Mumrow v Riddle, 67 Mich App 693, 698; 242 NW2d 489 (1976).
IV CONCURRENT OWNERSHIP AND GENERAL PRINCIPLES REGARDING JOINT TENANCIES WITH FULL RIGHTS OF SURVIVORSHIP
In Michigan, there are five common types or forms of concurrent ownership that are recognized relative to the ownership of real property, and those are tenancies in common, joint tenancies, joint tenancies with full rights of survivorship, tenancies by the entireties, and tenancies in partnership. 1 Cameron, Michigan Real Property Law (3d ed), Concurrent Ownership, § 9.1, p 310; see also Albro, supra at 274-275 (acknowledging and discussing ordinary joint tenancies and joint tenancies with full rights of survivorship); Lilly v Schmock, 297 Mich 513, 517; 298 NW 116 (1941) (acknowledging and discussing tenancies by the entireties); Mable Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich App 485, 493; 686 NW2d 770 (2004) (defining a tenancy in common); Backowski v Solecki, 112 Mich App 401, 406-411; 316 NW2d 434 (1982) (discussing partnership property interests as controlled by the Michigan Uniform Partnership Act, MCL 449.1 et seq.).
All conveyances and devises of land made to two or more persons shall be construed to create a tenancy in common, and not a joint tenancy, unless expressly declared to be a joint tenancy; however, this rule does not apply to mortgages, nor to grants or devises made in trust, made to executors, or made to a husband and wife. MCL 554.44 and 554.45.
In Albro, supra, our Supreme Court addressed the issue whether a tenant holding real property with a cotenant as joint tenants with full rights of survivor-ship can convey a life estate interest to a third person without the cotenant’s consent. The Court undertook an extensive analysis of the characteristics of joint tenancies, both ordinary joint tenancies and joint tenancies specifically granting the rights of survivor-ship. A standard or ordinary joint tenancy is characterized by the four unities, which are (1) unity of interest, (2) unity of title, (3) unity of time, and (4) unity of possession. Id. at 274. The chief characteristic of such a joint tenancy is the right of survivorship, which means that upon the death of one of the joint tenants, the surviving tenant(s) takes or assumes ownership of the whole estate. Id. at 274-275. However, in an ordinary joint tenancy, the right of survivorship can be destroyed by severance of the joint tenancy through an act of one tenant by such means as conveyance to a third party or by levy and sale, and the remaining joint tenant or tenants and the grantee then become tenants in common. Id. at 275.
On the other hand, a joint tenancy with full rights of survivorship is created by express language directly referencing words of survivorship as contained in the granting instrument, and this tenancy is composed of a joint life estate with dual contingent remainders. Id. The operative contingent remainder is in fee simple. Id. at 278. “While the survivorship feature of the ordinary joint tenancy may be defeated by the act of a cotenant, the dual contingent remainders of the ‘joint tenancy with full rights of survivorship’ are indestructible.” Id. at 275-276. The contingent remainder of a cotenant is not subject to being destroyed by the actions of the other cotenant. Id. at 276.
The Albro Court reached the following conclusion:
The interest which was conveyed by the deed to Carol Allen and Helen Albro “as joint tenants with full rights of survivorship” was a joint life estate with dual contingent remainders. The contingent remainder of either cotenant may not be destroyed by any act of the other. Thus, we hold that either cotenant may transfer her interest in the joint life estate and such a transfer has no effect on the contingent remainders. Upon the death of either of the original cotenants, the other cotenant, or any person to whom she has transferred her contingent remainder, takes the whole estate.
We further hold that the joint life estate may be partitioned without affecting the contingent remainders. [Id. at 287.]
The Albro Court’s ruling reflected a change in the law in that the Court reconsidered the rule against partition of a joint life estate with dual contingent remainders, concluding “that the ‘joint life estate’ element may be partitioned without doing violence to the contingent remainders.” Id. at 282.
With this background on adverse possession and concurrent forms of ownership, we now proceed to our discussion and analysis regarding the interplay of the two.
V DISCUSSION AND ANALYSIS
In Campau v Campau, 45 Mich 367; 8 NW 85 (1881), our Supreme Court, reiterating its previous ruling in the case, indicated that ownership by adverse possession may be obtained by a tenant against his or her cotenant in the context of a tenancy in common. The Campau Court stated:
[A]s between tenants in common, a claim of adverse possession by one should not be of doubtful character, but clear and unambiguous. The reason of this is that the possession itself is rightful, and does not imply adverse possession as would that of a stranger, so that the presumption of possession in recognition of the rights of co-tenants must be overcome by acts and declarations clearly inconsistent therewith brought home to the co-tenants. [Id. at 368.]
As reflected in Campau, a claim of adverse possession by a tenant against a cotenant, both sharing ownership interests in the property at issue, is not comparable to the usual scenario in which adverse possession arises, because, in the typical case, the person claiming adverse possession is occupying or possessing property to which he or she has no legal right to possess and which is titled in the name of another, making it easier to identify and determine hostile occupation, as compared to a situation in which there exists concurrent ownership. Thfs distinction is elaborated in Weshgyl v Schick, 113 Mich 22, 23; 71 NW 323 (1897), in which the defendant claimed ownership by adverse possession and the Michigan Supreme Court stated:
The undisputed testimony, then, in the case, shows that the plaintiff was the owner of the undivided one-third from the death of his grandfather, and that he attained his majority in 1885. Defendant claims that he [the plaintiff] was ousted at an earlier date, by having notice brought home to him that he (defendant) claimed the entire prop erty. The court charged the jury that the fact that the defendant himself occupied the place would not be sufficient to constitute adverse possession, and that in the case of a co-tenancy the mere holding of possession for 15 years would not be sufficient notice to a co-tenant of a claim to the whole. But he further charged the jury that, if the boy [the plaintiff] was distinctly notified, — if he was notified in such shape that he must have known that his uncle (the defendant) was claiming to own the land absolutely, — his adverse possession would begin to run, and that, in order that the defendant should acquire title, there must have been 15 years’ possession after this notice was given to plaintiff, and left it to the jury to determine whether that period of 15 years had run or not. We think this instruction sufficiently favorable to defendant, and that it fairly covered the law of the case.
Accordingly, there is a presumption, in the context of a claim of adverse possession, that a tenant who occupies and possesses the premises recognizes and is honoring the rights of any cotenants to similarly possess and occupy the property unless there is evidence of acts or declarations that clearly establish the contrary and that unambiguously provide notice to the cotenants of an effort to displace or exclude them from the premises in violation of their property rights such that a cause of action arises. See Taylor v S S Kresge Co, 326 Mich 580, 588-589; 40 NW2d 636 (1950); Donohue v Vosper, 189 Mich 78, 90-91; 155 NW 407 (1915), aff d 243 US 59; 37 S Ct 350; 61 L Ed 592 (1917); Campau v Campau, 44 Mich 31, 34; 5 NW 1062 (1880) (all doubts arising out of the nature and character of the possession should weigh against ouster); Krueger v Hockley Union Nat’l Bank & Trust Co, 5 Mich App 362, 365-366; 146 NW2d 691 (1966). While a tenant in common may acquire title against a cotenant by adverse possession, the proofs may not be made out by inference. Horbes v Ahearn, 369 Mich 423, 427; 120 NW2d 215 (1963).
In Krueger, supra at 366-367, this Court stated:
The law of adverse possession as between cotenants is thoroughly discussed in 82 ALR2d 5, where at pp 23 and 24 the author of that annotation summarizes:
“A cotenant, whether a tenant in common or a joint tenant, may undoubtedly hold the common premises adversely to his cotenant or cotenants, and in such fashion as eventually to ripen his claim into title against them, even though his possession was commenced amicably as a cotenant. To establish that his possession was adverse he must show that at the time in question he was personally, or by tenant or agent, in actual possession of the premises, or of the particular and sufficiently defined part of the premises to which he makes claim, that he intended an actual adverse possession operative as of that time, that he did in fact hold and claim the premises adversely, and lastly, that his cotenant or cotenants had knowledge or notice of that fact. In short, there are but three elements to be established: (1) the intent; (2) the adverse possession in fact; and (3) the knowledge or notice.”
It is abundantly clear from the case law that a tenant can acquire sole ownership of property by invoking the doctrine of adverse possession against a cotenant or cotenants, where the estate is a tenancy in common, although there is a heightened level of proof necessary to establish the claim.
The specific question posed to us today, however, which does not appear to have been previously addressed by the appellate courts of this state, is whether the doctrine of adverse possession can be extended to equally apply in joint tenancies with full rights of survivorship.
We begin our examination of this issue by focusing on the life estate interest that is created when property is held jointly with rights of survivorship. As indicated in Albro, supra at 275, a joint tenancy with full rights of survivorship is composed of a joint life estate with dual contingent remainders. “Estates in lands are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance.” MCL 554.1 (emphasis added).
A life estate is a freehold estate but not an estate of inheritance. MCL 554.2, .5. It is an estate in possession. MCL 554.7-.8. A life estate is one in which the owner of the interest is entitled to possess and enjoy the real estate during his or her own life or during the life of a third person or persons. [MCL 554.6]. A life estate to a class collectively creates an estate for one life only — the life of the one who lives the longest. Rendle v Wiemeyer, 374 Mich 30; 131 NW2d 45 (1964). The remaining portion of the fee simple, other than the life estate, is a remainder. See MCL 554.11. [Cameron, supra, Estates, § 7.8, p 263.]
Therefore, plaintiffs 1981 conveyance of the property to herself and defendant as “joint tenants with full rights of survivorship” gave each of them a possessory, freehold estate with an immediate right to occupy the property. The joint life estate would cease upon the death of either party, leaving the surviving party the whole estate in fee simple. MCL 600.5801 provides that a person may maintain an action to recover property within 15 years after the claim first accrued. In general, a claim to recover land accrues at the time of a party’s disseisin. MCL 600.5829(1). Accordingly, when defendant was disseised or wrongfully deprived of the property in 1985, at which time he had a right of possession, the 15-year period of limitations began ticking with respect to defendant’s opportunity to initiate a civil action, whether through summary proceedings or standard proceedings, to recover possession. Thus, under a fair and reasonable reading of the various statutes concerning estates in land and the limitations of actions, the doctrine of adverse possession would appear to be available to plaintiff with respect to defendant’s life estate interest and the deprivation of that interest; we see nothing that precludes application of the doctrine.
Moreover, a ruling that one may adversely possess property against the holder of a life estate finds support in the case law. We first note that it is well settled that the life estate itself is freely transferable. Albro, supra at 280. The Supreme Court stated in support of this proposition that Michigan has a strong public policy against restraints on alienation. Id. at 281, citing Mandlebaum v McDonell, 29 Mich 78 (1874), and Braun v Klug, 335 Mich 691; 57 NW2d 299 (1953). In Watkins v Green, 101 Mich 493, 497; 60 NW 44 (1894), our Supreme Court ruled that a tenant is not precluded from establishing adverse title against a cotenant, and it recognized that a life estate interest can be lost by adverse possession. Additionally, a life tenant, such as plaintiff, may, in general and without reaching any interest in remainder, establish a claim for adverse possession. See Felt v Methodist Ed Advance, 251 Mich 512, 516-517; 232 NW 178 (1930); Lowry v Lyle, 226 Mich 676, 682-683; 198 NW 245 (1924); Cameron, supra, Estates, § 7.8, pp 263-264.
For the reasons stated above, we hold that a life estate interest can be lost by adverse possession and that it can be lost in the context of a joint tenancy with full rights of survivorship. The more difficult issue that presents itself concerns the “dual contingent remainders” aspect of a joint tenancy with full rights of survivorship.
In relation to their time of enjoyment, estates are divided into estates in possession and estates in expectancy, and estates in expectancy, denominated as future estates and reversions, exist where the right to possession is postponed until a future date. MCL 554.7, MCL 554.8, and MCL 554.9. “A future estate is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate, created at the same time.” MCL 554.10. A remainder is created when a future estate is dependent upon the precedent estate. MCL 554.11. Future estates are contingent “whilst the person to whom, or the event upon which they are limited to take effect remains uncertain.” MCL 554.13. Valid future estates are not void on the basis of the probability or improbability of the contingency. MCL 554.26. “When a remainder on an estate for life . .. shall not be limited on a contingency, defeating or avoiding such precedent estate, it shall be construed as intended to take effect only on the death of the first taker[.]” MCL 554.29. “Expectant estates are descendible, devisable and alien able, in the same manner as estates in possession.” MCL 554.35. Contingent remainders are not possessory estates. Albro, supra at 284-285. Although a joint tenant with rights of survivorship can achieve partial partition through conveyance of the life estate, the partition does not affect the contingent remainders. Id. at 282, 287. Furthermore, “[a] cotenant’s contingent remainder cannot be destroyed by an act of the other cotenant.” Id. at 276; see also Townsend v Chase Manhattan Mortgage Corp, 254 Mich App 133, 136; 657 NW2d 741 (2002) (no act of a cotenant can defeat the other cotenant’s right of survivorship).
With respect to life estates in general, a contingent remainder cannot be destroyed by any act of the holder of the preceding life estate. Albro, supra at 279. Our Supreme Court in Rendle, supra at 44, similarly noted that the established general rule is that a life tenant’s possession cannot be adverse to a remainderman. A life tenant cannot acquire adverse rights against any remaindermen, nor hold the property adversely to the remaindermen before the end of the life estate. Lowry, supra at 682. Adverse possession relative to the remaindermen’s rights does not commence until their right of entry and possession accrues, which occurs at the death of the life tenant. Id. The Lowry Court adopted the following rationale from Allison v White, 285 Ill 311, 323; 120 NE 809 (1918):
“The possession of land by a tenant for life cannot be adverse to the remainder-man or reversioner, and the possession of a grantee of the life estate, even under a deed purporting to convey the fee, cannot be adverse so as to set the Statute of Limitations in operation against the remainder-man or reversioner. The possession of the life tenant is consistent with and not adverse to the estate in remainder and in contemplation of law is the possession of the remainder-man, who has no right of entry and cannot bring an action for the possession until the termination of the life estate.” [Lowry, supra at 682-683 (citations omitted).]
A contingent remainderman does not have a present right of possession that “would entitle [him or her] to a cause of action against the intruder.” Mumrow, supra at 698; see also Bentley v Cam, 362 Mich 78, 82; 106 NW2d 528 (1960). MCL 600.5829(3), which addresses the accrual of a claim by a remainderman, provides:
When there is an intermediate estate, and in all other cases where the party claims by force of any remainder or reversion, his claim accrues when the intermediate or precedent estate would have expired by its own limitation, notwithstanding any forfeiture of the intermediate or precedent estate for which he might have entered at an earlier time.
Both Albro and Lowry relied on the following statutory language found in MCL 554.32:
No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseizin, forfeiture, surrender, merger, or otherwise.
In Lowry, supra at 684, the Court noted that “[t]his statute was enacted to abrogate the common-law rule, under which it was possible for a life tenant to defeat a contingent remainder by a deed of feoffment with livery of seizin.” (Citations omitted.)
The statutes and the case law make clear that the contingent remainder interest held by defendant in the case at bar could not be destroyed by adverse possession because a claim to recover possession of the property on the basis of said interest, or defendant’s status as a remainderman, would not accrue, if at all and at a minimum, until the occurrence of the contingency, which is plaintiffs death, or, in other words, the expiration of the precedent estate. A life tenant’s possession cannot be adverse to a remainderman. The 15-year statutory period would not commence running against defendant until a cause of action accrued in which defendant sought to enforce his rights as the holder of the contingent remainder, which interest, at the time of plaintiffs death, would vest and leave defendant with a fee simple. This is, of course, assuming that plaintiff predeceases defendant. If defendant dies first, plaintiff would hold sole legal title in fee simple. Only if defendant failed to commence an action within 15 years of plaintiffs death, against whomever might conceivably be adversely possessing the property, if indeed anyone did so, might defendant’s interest in the property be lost by adverse possession. While plaintiff could adversely possess defendant’s life estate interest in the property, she could not adversely possess his contingent remainder interest. Plaintiff, as life tenant, simply could not defeat defendant’s contingent remainder.
Although we are hesitant to reach this conclusion because, absent some agreement between the parties, it will hinder plaintiffs ability to convey or alienate the property should she wish to sell the home in the future, our holding is necessitated by the legal authorities discussed above. We have contemplated an attempt to distinguish the case from the referenced case law and statutes on the basis that defendant is not only a remainderman, but a life estate holder, as opposed to situations where the remainderman does not have any present possessory interest whatsoever and has nothing to do with the property during the lifetime of the life estate holder. Thus, defendant had some property interest that was potentially subject to adverse possession as soon as he was excluded from the property, and the period of limitations began running on enforcing that interest, yet he failed to act. One might argue that the failure to initiate a court action to recover the property or enforce his property rights within 15 years should negate or destroy not only his life estate interest but also the contingent remainder. However, taking such a position would be contrary to the dual property interests created by a joint tenancy with full rights of survivorship, i.e., a life estate and a contingent remainder in fee simple, as recognized in Albro, and would offend the plain language of MCL 600.5829(3) and MCL 554.32. From a practical perspective, it would be reasonable for a disseised cotenant, being legally advised or having knowledge with regard to the meaning of “rights of survivorship,” to decide to refrain from engaging in a costly legal battle or other confrontation with an occupying life tenant, deciding instead to take peaceful possession by invoking his or her rights predicated on the contingent remainder upon the death of the life tenant. It would be inconsistent with the law to rule that the disseised cotenant’s contingent remainder had been defeated by the life tenant’s adverse possession when the cotenant’s ability to invoke rights associated with the remainder would not accrue until the life tenant’s death.
We further hold that plaintiff established as a matter of law a claim for adverse possession as it pertained to defendant’s life estate. Consistent with the principles applicable to adverse possession and tenancies in common, a heightened level of proof is necessary to establish adverse possession of the life estate in the context of a joint tenancy with full rights of survivorship. Not only must a tenant show possession that was actual, visible, open, notorious, exclusive, continuous, hostile, and uninterrupted for the statutory period, Kipka, supra at 439 (excludes “hostile”); McQueen, supra at 643 (includes “under a claim of right”) the tenant must intend to possess the premises to the exclusion of his or her cotenant, and the cotenant must have knowledge or notice of this intent as clearly evidenced by acts or declarations, Taylor, supra at 588-589; Donohue, supra at 90-91; Weshgyl, supra at 23; Krueger, supra at 365-366. With respect to the element of hostility, this simply means that the possession must be inconsistent with the rights of the owner. Mumrow, supra at 698.
Here, we first note that defendant’s answer to plaintiffs complaint does not reference paragraph 9 of the complaint in which plaintiff alleged that her possession satisfied the elements of adverse possession, which elements are listed. Next, defendant stated in his counterclaim that plaintiff “ejected [him] from the premises and exercised exclusive control and possession to the subject property.” Defendant further asserted that plaintiff “has refused the sale of the described property and has had the full and unfettered possession of the entire property[.]” Defendant additionally claimed that plaintiff refused to give him the reasonable rental value of his interest in the property for which he sought compensation dating back to 1985. Even with respect to defendant’s allegations regarding personal property contained in the home, he contended that plaintiff “has exercised dominion and control” over personal property. In defendant’s trial brief, he stated, “In 1985,... the [p]laintiff made the [defendant leave the home[.]” Moreover, in his appellate response brief, defendant makes no claim that, factually, the elements of adverse possession were not established; rather, he focuses solely on the legal argument that adverse possession is inapplicable where there exists a joint tenancy with full rights of survivorship. The trial court’s determination that plaintiff could not establish hostile possession of the property was based on its erroneous conclusion that a tenant in a joint tenancy with full rights of survivorship cannot maintain a claim for adverse possession against a cotenant.
On this record, we conclude, as a matter of law, that plaintiff adversely possessed the property relative to defendant’s life estate, even observing a heightened level of proof. Defendant has effectively conceded in his pleadings that the elements of adverse possession were satisfied, and he has not disputed plaintiffs argument that, factually, adverse possession was established for the statutory period. Accordingly, defendant does not have any right of possession during plaintiffs lifetime, and only if plaintiff predeceases defendant may defendant exercise his rights pursuant to his contingent remainder and enter into sole possession and ownership in fee simple. If defendant predeceases plaintiff, she shall hold sole ownership in fee simple.
VI. CONCLUSION
We hold that the doctrine of adverse possession is available to the occupying tenant to defeat the ousted cotenant’s life estate interest held in the property, although a heightened level of proof is to be observed when addressing the issue. With respect to the life estate interest, a claim by the ousted life tenant to recover the property thereby indicating a desire to protect the interest, accrues at the time of the tenant’s disseisin or wrongful ejectment, from which point the 15-year statutory period of adverse possession is measured. We further hold, however, that the ousted life tenant’s contingent remainder cannot be destroyed through adverse possession by the occupying life tenant because the statutory period to file an action to recover the property relative to that particular interest cannot commence, at a minimum, until the contingency occurs, i.e., the claim accrues at the death of the occupying life tenant, here plaintiff, which would mark the expiration of the precedent estate. In regard to defendant’s life estate interest, the trial court erred in finding that plaintiff could not establish adverse possession for lack of hostility and erred in granting defendant’s motion for summary disposition, where the record reflects, as a matter of law, that the elements of adverse possession were admitted and satisfied, even observing a heightened level of proof. But, also as a matter of law, defendant’s contingent remainder in fee simple remains intact.
Accordingly, defendant does not have any right of possession during plaintiffs lifetime, and only if plain tiff predeceases defendant may defendant exercise his rights pursuant to his contingent remainder and enter into sole possession and ownership in fee simple. If defendant predeceases plaintiff, she shall hold sole ownership in fee simple.
We reverse in part, affirm in part, and remand for entry of judgment in favor of plaintiff with regard to adverse possession of defendant’s life estate interest and for entry of judgment in favor of defendant relative to his contingent remainder. We do not retain jurisdiction.
Plaintiff asserted that the split occurred when defendant left her for another woman and moved to Florida.
We note that, in the context of a bench trial concerning equitable issues, this Court reviews the factual findings under the “clearly erroneous” standard. Gorte, supra at 171.
MCL 554.43 provides:
Estates, in respect to the number and connection of their owners, are divided into estates in severalty, in joint tenancy, and in common; the nature and properties of which respectively, shall continue to be such as are now established by law, except so far as the same may be modified by the provisions of this chapter.
“[A] tenancy in common exists where two or more persons hold possession of lands and tenements at the same time by several and distinct titles!.]” Cleary Trust, supra at 493, citing Fenton v Miller, 94 Mich 204, 214; 53 NW 957 (1892). Although tenants in common hold ownership of the property by distinct titles, there is a unity of possession. Fenton, supra at 214; see also Cameron, supra at § 9.4, p 311. A right of survivorship does not exist in tenancies in common. Id.
Examples given of language creating this type of joint tenancy include: “and to the survivor of them,” “to them and the survivor of them,” “or survivor of them,” “with right of survivorship,” or “with full rights of survivorship[.]” Albro, supra at 275 (citations omitted).
6 This passage from Cameron relies on various statutory provisions that we will quote. “Every estate of inheritance shall continue to be termed a fee simple, or fee; and every such estate, when not defeasible or conditional, shall be a fee simple absolute, or an absolute fee.” MCL 554.2. “Estates of inheritance and for life shall be denominated estates of freehold; estates for years shall be denominated chattels real; and estates at will or by sufferance shall be chattel interests, but shall not be liable as such to sale on executions.” MCL 554.5. “An estate for the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee, but after his death it shall be deemed a chattel real.” MCL 554.6. “Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy.” MCL 554.7. “An estate in possession, is where the owner has an immediate right to the possession of the land; an estate in expectancy is where the right to the possession is postponed to a future period.” MCL 554.8. “When a future estate is dependent upon a precedent estate, it may be termed a remainder, and may be created and transferred by that name.” MCL 554.11.
“Disseisin” means “[t]he act of -wrongfully depriving someone of the freehold possession of property[.]” Black’s Law Dictionary (7th ed).
Black’s Law Dictionary (7th ed) provides the following definition of and information regarding the term “contingent remainder”:
A remainder that is either given to an unascertained person or made subject to a condition precedent. An example is “to A for life, and then, if B has married before A dies, to B.” . . .
“Unlike a vested remainder, a contingent remainder is either subject to a condition precedent (in addition to the natural expiration of a prior estate), or owned by unascertainable persons, or both. But the contingent remainder, like the vested remainder, ‘waits patiently’ for possession. It is so created that it can become a present estate (if ever it does) immediately upon, and no sooner than, the natural expiration of particular estates that stand in front of it and were created simultaneously with it.” Thomas F. Bergen & Paul G. Haskell, Preface to Estates in Land and Future Interests 73 (2d ed. 1984). [Emphasis in original.]
9 Further, MCL 554.34 provides:
No remainder, valid in its creation, shall be defeated by the determination of the precedent estate, before the happening of the contingency on which the remainder is limited to take effect; but should such contingency afterwards happen, the remainder shall take effect in the same manner, and to the same extent, as if the precedent estate had continued to the same period. | [
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COOPER, J.
This appeal presents a question of first impression in Michigan. It focuses on the interplay between protected free speech and the state’s interest in protecting minors from sexual predators seeking victims via the Internet. At issue is MCL 750.145d, a statute which criminalizes use of “the internet or a computer ... to communicate with any person for the purpose of... Committing, attempting to commit, conspiring to commit, or soliciting another person to commit” several enumerated crimes. We find that § 145d does not impermissibly burden free expression because “words alone” are not punishable under the statute; rather the statute criminalizes communication with a minor or perceived minor with the specific intent to make that person the victim of one of the enumerated crimes.
Under MCL 750.145d(l)(a), the prosecution charged defendant with two counts of using the Internet or a computer to communicate with an undercover deputy sheriff, whom defendant believed was a 14-year-old girl, for the purpose of “committing or attempting to commit” third-degree criminal sexual conduct (CSC III), MCL 750.520d(l)(a), and one count of using the Internet or a computer to communicate with a perceived minor in order to produce or attempt to produce child sexually abusive material, MCL 750.145c(2). The prosecution appeals by leave granted from a circuit court order affirming the district court’s dismissal of two of the counts charged. We affirm in part, reverse in part, and remand.
I. FACTS
At the August 2004 preliminary examination, Wayne County Sheriffs Deputy Norman Gibson testified that his work involved “posing on line as a minor” in child pornography cases and performing “forensic analysis of the computers that are seized.” Gibson routinely logged onto a Yahoo Instant Messaging service with an invented screen name and personal characteristics, usually posing as “a 14-year-old female... from the west side of the county, Livonia, Canton, Plymouth, North-ville, ... with a vague description of about 5’4” tall, blond hair, pretty, nice,” and would “sit in a chat room a while and pretty much just wait for someone to strike up a conversation . . ..” Gibson stated that he never commenced conversations with other Internet users, and when addressed, always waited for the messenger to turn the conversation to sex.
On July 1, 2003, Gibson, in his Hamtramck office, logged on in a chat room designated “Detroit” or “Michigan” under the screen name “inozentangel,” a purported Livonia girl aged 14. Around 5:44 p.m., Gibson received a greeting from someone identified as “timmyd683.” Gibson replied, “hi 2 u 2.” Timmyd683 and Gibson initially exchanged personal information; timmyd683 described himself as a 21-year-old male living in Livonia, and Gibson identified himself as a 14-year old female Livonia resident, 5’4” tall and 105 pounds with blond hair and green eyes.
The printed log of the exchanges between Gibson and timmyd683 indicates that the conversation quickly became more intimate. He wrote that she “sound[ed] gorgeous,” to which she replied she was too young. He said he had misread her age and thought she was 18, and when she then indicated she would exit the conversation, he said he did not want to “seem like an old perv,” asked if she was “ok with it,” and checked that she was “not like working with the cops or anything.” She confirmed that he was 21, and then said she was “fine wit it.” As the conversation went on, he asked her bra size, asked if she was “looking for anything” sug gested a casual relationship, an intimate relationship, or a “f*** buddy” relationship. He asked if she was “a sexual girl,” and when she replied “a little bit,” he asked if she wanted to see a picture of him.
Gibson e-mailed timmyd683 a picture of a Wayne County Sheriff undercover officer when she was 14 years old, and timmyd683 e-mailed Gibson two photos, one showing a white male with short hair, and one that Gibson described as depicting “a male from mid-abdomen down to mid-thigh with his pants pulled down and his hand on his genitalia.”
He wrote that he had not meant to send the second photo, and added “ok, well you’ve seen all of me now[.]” He then suggested they meet. She asked what he wanted to do, and he said it depended, then asked if she could go out late or sneak out if necessary, and she replied that she could. He asked whether she knew any “private places” in the area, and she said she did not because she had recently moved to the area. She again asked what he wanted to go out and do, and he answered “youre gonna hate me and not talk to me after i tell you[.]” He then asked whether she would “go down on” him. She said “sure,” and after he asked again she confirmed that they were both talking about oral sex. He informed her that he was “completely shaven,” so it would be “nice and clean.”
They discussed meeting that same night, and he said he didn’t want to “get. .. rejected” or “find out that your gonna have me arrested!” She asked why she would have him arrested, and he answered “hahah, i dont know, cuz its illegal[.]” She said “well then forget it,” and he replied that he was “just kidding.”
He suggested they meet that night, but she suggested the next night instead. He said that he had plans to leave town on vacation the next day, and the July 1, 2003, exchange concluded with inozentangel’s statement that she would wait. Around 4:30 p.m. the next afternoon, timmyd683 advised inozentangel via instant message that his vacation plans had changed, and he again brought up the subject of meeting. He asked her if she had met other men on the Internet, and she replied she had met five others. He asked if she had had sex with them and she said she had with three of them. They discussed the sex acts they had discussed the day before, and he asked if there was anything else she would want to do with him, and she said if “we feel like more... then sure.” He asked if she wanted anything in return and she said she would not take money because that would make her a prostitute, but added that she needed a webcam. They spent nearly an hour discussing a plan to meet at 11:30 that night near a middle school.
At 10:38 p.m., inozentangel advised timmyd683 that she could not make it because her mother had stayed home from work. He repeatedly urged her to sneak out of the house for the meeting, and she repeatedly declined. After discussing their upcoming schedules and determining they could not meet for at least another two weeks, inozentangel said that “it wasnt meant to be[.]” Timmyd683 disagreed and told inozentangel that he had bought her a webcam. Inozentangel ended the conversation by announcing that her mother had started yelling at her to turn off the computer and go to bed.
Inozentangel and timmyd683 had brief instant message conversations on July 3, 2003, and July 6, 2003, during which they discussed getting together. On the morning of July 7, 2003, inozentangel engaged in an instant message conversation with timmyd683 under his other screen name, cerv25, and said that she was staying at her father’s house in Grosse Pointe, and that she could sneak out that night and meet near Grosse Pointe North High School. Around 4:40 p.m., they communicated again to confirm the plan, and he asked if he could videotape the sex acts they had discussed. She said he could as long as the tape “doesnt go anywhere[.]” She gave him the address of the high school. Then for about 15 minutes the discussion centered on inozentangel’s sexual experience and preferred male body characteristics, and what each person would wear later that evening. They then recapped the plan for the evening, specifically that they would find a private location and cerv25 would videotape inozentangel performing fellatio on him. Inozentangel and cerv25 last communicated via instant message for approximately one hour between 10:30 p.m. and 11:30 p.m.; much of this conversation involved eerv25 complaining that it would be a long drive to Grosse Pointe and expressing his concern that she would not show up. They finally agreed that cerv25 would arrive at Grosse Pointe North in his Ford Explorer by 12:30 a.m. on July 8, 2003. Cerv25 again asked if inozentangel was a cop or worked with the police, and she again said no.
Gibson stated that he and other sheriff department personnel staked out the high school. Gibson’s partners parked one car “directly across the street from the high school and one in the driveway so that they could see anyone entering and leaving,” and Gibson waited in another car “parked alongside the football field.” Around 12:25 a.m. on July 8, 2003, a Ford Explorer entered the school parking lot and “kind of did like a circle” around it, according to Gibson. Gibson stated that he turned on his lights and started driving toward the vehicle, which turned toward the exit but found it blocked by the other officers’ cars. At the preliminary examination, Gibson identified defendant as the driver of the Explorer, whom the deputies arrested at the scene. A search of the Explorer at the time of defendant’s arrest yielded no condoms, towel, webcam, or other video recording equipment.
II. PROCEDURAL HISTORY
In a July 27, 2004, complaint, the prosecutor charged defendant, pursuant to MCL 750.145d(l)(a), with two counts of using a computer or the Internet to communicate with someone he believed was a minor for the purposes of committing or attempting to commit CSC III, and one count of using a computer or the Internet to communicate with someone he believed was a minor for the purposes of committing or attempting to commit child sexually abusive activity or material. At the August 2004 preliminary examination, the prosecution contended that defendant’s July 1, 2003, and July 2, 2003, communications with inozentangel supported the first two counts of the complaint because in each exchange defendant proposed meeting with a minor to receive oral sex and repeatedly urged the minor to meet him at particular times. Concerning the third count, the prosecution maintained that defendant’s request to videotape the minor in a sex act supported the charge.
The district court determined it would bind defendant over on only one count of the complaint. As to counts I and II, the court found the prosecution had “more than satisfied the elements of this particular matter [using a computer or the Internet to communicate with someone he believed was a minor for the purpose of committing or attempting to commit CSC III],” but that a second contact did not merit a second count charging the same offense. As to count III, the court found that defendant’s request to videotape Inozentangel in a sex act was insufficient without more to support the charge.
Defendant filed a motion in the circuit court on October 15, 2004, to quash count I. According to defendant, MCL 750.145d(l)(a) interlocked with MCL 750.520d(l)(a), requiring that in addition to showing defendant’s proscribed use of a computer, the prosecutor must show that defendant committed or attempted to commit the elements of CSC III. Defendant argued that the prosecution had presented insufficient evidence that when he arrived at Grosse Pointe North he intended to commit or attempted to commit the underlying CSC III offense. Defendant also argued that the district court abused its discretion in binding him over on count I because the evidence showed that he abandoned any crime by attempting to leave the high school.
The prosecution responded that the evidence developed at the preliminary hearing, including the instant messages and the fact that defendant drove to a designated meeting place, established that he used a computer for the purpose of attempting to induce a minor to have oral sex with him. On October 25, 2004, the prosecutor filed a motion to amend the information to reincorporate prior counts II and III, which the district court had dismissed.
On January 4, 2005, defendant filed a motion in limine requesting that the circuit court find inadmissible the printout of instant messages that he exchanged with inozentangel because it did not amount to original evidence and it did not accurately or completely reflect the exchanges. Also on January 4, 2005, defendant filed a motion in limine to preclude the admission of the photograph he had e-mailed because it had minimal probative value and its admission would unfairly prejudice the jury. Defendant additionally moved to dismiss the charge(s) because Gibson had entrapped him by initiating contacts with defendant while posing as a minor.
The circuit court held a series of hearings to address the parties’ various motions on January 11, 2005, January 18, 2005, and January 28, 2005. During the final hearing, the circuit court agreed with the district court bindover decisions, reasoning that the separate instant message conversations should be read as one series of discussions creating one offense, so count II had been properly dismissed, and that because no pictures of any children were involved, count III had also been properly dismissed. The court found, as to the remaining charge, that “whether or not there was sufficient behavior on the part of the defendant to meet the attempt as articulated in the wording of the statute” and whether the “affirmative defense of abandonment” is proved are both questions “which should go before the triers of fact. . . .”
With respect to what the prosecution would have to establish to prove the underlying crime of attempted CSC III to establish defendant’s guilt under MCL 750.145d(l)(a), the court explained that “the finders of fact would have to decide whether the activity that was conducted was sufficient,” but “[i]t’s got to be more than just the Internet. Words alone do not constitute the crime. There has to be some action and [sic] furtherance of the words.”
On April 7, 2005, the circuit court entered an order denying the prosecution’s motion to amend the information and denying defendant’s motion to quash the information. The April 7, 2005, order also (1) denied defendant’s motion in limine requesting exclusion of the instant message transcripts, explaining that allegations of incompleteness affect the weight of the evidence, not its admissibility, (2) granted defendant’s motion in limine seeking exclusion of the prejudicial photograph, (3) denied defendant’s motion to dismiss on constitutional grounds, and (4) denied defendant’s motion to dismiss on the basis of entrapment because defendant “initially and repeatedly contacted the Inozentangel screen name.”
III. STANDARD OF REVIEW
The prosecution first contends that the circuit court erred in its determination that to prove defendant guilty of using a computer to communicate with a perceived minor for the purpose of attempting or committing CSC III under MCL 750.145d(l)(a), the prosecution must introduce some evidence that defendant attempted the underlying CSC III crime, MCL 750.520d. The prosecution maintains on appeal that defendant “violated [MCL 750.145d(l)(a)] each time he communicated with Inozentangel on line for the purpose of arranging a meeting to have sexual intercourse with [someone] he believed was a minor.” Resolution of these questions requires that we engage in statutory construction, which is a legal question that we consider de novo. People v Schultz, 246 Mich App 695, 702; 635 NW2d 491 (2001).
Statutory interpretation is an exercise in reading for plain meaning to give effect to the Legislature’s intent; only where the words are ambiguous ought the court look beyond them. People v Borchard-Ruhland, 460 Mich 278, 284-285; 597 NW2d 1 (1999). Plain meaning may have a contextual as well as a definitional element: “The fair and natural import of the terms of the statute, in view of the subject matter of the law, is what should govern.” People v Green, 260 Mich App 710, 715; 680 NW2d 477 (2004).
We note that our review today is of a bindover determination made at a preliminary hearing. “We review a circuit court’s decision to grant or deny a motion to quash a felony information de novo to deter mine if the district court abused its discretion in ordering bindover.” People v Northey, 231 Mich App 568, 574; 591 NW2d 227 (1998). A district court must bind over where the prosecutor has presented competent evidence sufficient to support probable cause to find both that a felony was committed and that defendant committed it. Id. at 574-575. The prosecutor is not required to prove all elements of the offense charged at the preliminary hearing, but must only produce evidence sufficient for a finding of probable cause. “Probable cause to believe that the defendant committed the crime is established by a reasonable ground of suspicion, supported by circumstances sufficiently strong to warrant a cautious person in the belief that the accused is guilty of the offense charged.” People v Woods, 200 Mich App 283, 288; 504 NW2d 24 (1993). “Circumstantial evidence and reasonable inferences arising from the evidence may be sufficient to justify binding over a defendant.” Id.
IV EACH VIOLATION OF § 145d MAY BE CHARGED AS A SEPARATE COUNT
Defendant was charged under MCL 750.145d, which includes the following relevant language:
(1) A person shall not use the internet or a computer, computer program, computer network, or computer system to communicate with any person for the purpose of doing any of the following:
(a) Committing, attempting to commit, conspiring to commit, or soliciting another person to commit conduct proscribed under section 145a, 145c, 157c, 349, 350, 520b, 520c, 520d, 520e, or 520g, or section 5 of 1978 PA 33, MCL 722.675, in which the victim or intended victim is a minor or is believed by that person to be a minor.
The first two counts charged were based on the reference in § 145d to MCL 750.520d, CSC III. That statute provides in pertinent part that “[a] person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and . . . [t]hat other person is at least 13 years of age and under 16 years of age.” MCL 750.520d(l)(a).
The required elements of § 145d relevant to the charges against this defendant are: (1) use of the Internet or a computer, (2) intent to attempt to commit conduct proscribed by § 520d (sexual penetration of a person between the ages of 13 and 16), and (3) belief that the intended victim is a minor. The “for the purpose of” language within subsection 145d(l) plainly incorporates into the statute a specific intent requirement: the defendant must communicate via the Internet with a person with the specific intent to commit or attempt the underlying offense. See People v Evans, 173 Mich App 631, 634; 434 NW2d 452 (1988) (with respect to assault with intent to commit second-degree CSC, a specific intent crime, the prosecution must show that the defendant assaulted a victim with “the specific intent [to commit acts included in CSC II]... for the purpose of sexual arousal or gratification”). In this case, therefore, the prosecution properly can charge defendant under subsection 145d(l)(a) for each instance in which defendant used a computer to communicate with a perceived minor with the specific intent to engage in sexual penetration with someone he believed was between 13 and 16 years of age.
The bill of particulars filed by the prosecution suggested that defendant’s correspondences with inozentangel on July 1, 2003, and July 2, 2003, supported the charges in complaint counts I and II respectively. The instant message log and Deputy Gibson’s testimony at the preliminary examination tend to establish that on at least these two specific dates, defendant used a computer and the Internet to communicate with a person defendant believed to be a 14-year-old girl on the basis of her own representations and the photo Gibson e-mailed to defendant. On each of the two specific dates, defendant arranged to meet this perceived minor for the specific purpose that she perform fellatio on defendant. Fellatio is included in the definition of sexual penetration in MCL 750.520a(o), and is therefore prohibited by MCL 750.520d(l)(a). Noting that “circumstantial evidence and reasonable inferences” are sufficient to bind over a defendant, here the content of the instant message conversations on July 1, 2003, and July 2, 2003, reasonably tend to establish that defendant proposed the meetings for the specific purpose, or with the specific intent, to attempt sexual penetration of someone he believed was a 14-year-old girl. Woods, supra at 288.
Defendant maintains that the prosecution has failed to present any evidence of an “unambiguous overt act in furtherance of an ‘attempt’ to sexually penetrate.” Defendant refers to MCL 750.92, the general attempt statute, which requires both that the defendant specifically intended to commit the underlying crime and that defendant took some action in furtherance of the underlying crime. People v Burton, 252 Mich App 130, 141; 651 NW2d 143 (2002). Defendant’s argument is incorrect, however, because the general attempt statute by its own terms limits its applicability to cases in which “no express provision is made by law for the punishment of such attempt....” MCL 750.92. Because MCL 750.145d(l) plainly provides for punishment of “attempting to com mit” various specified crimes, the general attempt statute does not apply in this case.
We find that the July 1,2003, and July 2, 2003, instant message conversations establish probable cause to bind over defendant on two counts of using a computer or the Internet “for the purpose of” “attempting to commit... conduct proscribed under” MCL 750.520d, “in which the ... intended victim is... believed... to be a minor ____” MCL 750.145d(l)(a). The evidence supports a reasonable belief that defendant used a computer or the Internet for the specific purpose, or with the specific intent, to attempt sexual penetration of someone he believed was a 14-year-old girl. Consequently, the circuit court and the district court erred by declining to bind over defendant on count II of the complaint.
V SECTION 145d DOES NOT CRIMINALIZE “WORDS ALONE”
Although the circuit court did not expressly invoke the First Amendment, the court did say that “[w]ords alone do not constitute the crime.” We share the court’s concern and emphatically add that the right to free expression must be closely guarded against intrusion. However, there is a line between speech and conduct, and another line between protected and unprotected speech, and the facts of this case require us to examine both.
As a threshold matter, the statute at issue does not proscribe words alone, but communication combined with the specific intent to commit or attempt particular crimes against a victim who is or is perceived to be a minor. Defendant is accountable not for his words, but for the act of communicating with a perceived minor with intent to make her the victim of a crime.
In addition, defendant cannot rely on a “words alone” argument because to do so defendant would have to have literally done nothing more than speak to a person he believed to be a 14-year-old girl. The facts here suggest otherwise. Defendant entered a chat room apparently looking for a child to engage in conversation. He singled inozentangel out and sent an instant message. He repeatedly engaged her in e-mail conversations over the course of a week, and he drove to Grosse Pointe to meet with her. Significantly, he did all of this with the specific intent to engage in a sexual encounter with a person he believed to be a child. Here, the content of defendant’s speech is more than mere words, because the content of the message combined with the sender’s intent together comprise an invitation, and it is the act of issuing that invitation to a person the issuer believes is a child that is proscribed by law. However repugnant his words might be, the operative issue is not what defendant said, it is his act of saying them to a person he believed was a 14-year-old girl with the intent that she would accept his invitation to engage in a sexual encounter.
There are limited situations in which words, given the context and intent behind their use, are themselves overt acts, where speech itself is at the same time conduct. Where speech is an action intended to instigate an illegal act, the context rather than the content can become the issue. A famous example of impermissible context is yelling “fire” in a crowded theater, where the context makes the content unacceptable, and the act of shouting with intent to cause panic makes “fire” more than a mere word. The contexts in which speech is more than words are limited, but they do exist within our legal framework. “That words themselves may be overt acts under some circumstances, in fact overt acts sufficient to constitute crimes, is well settled.” People v Coleman, 350 Mich 268, 280; 86 NW2d 281 (1957) (affirming a conviction for obstruction of justice where defendant threatened a witness to prevent him from testifying).
To minimize infringement on our fundamental interest in free expression, “a state statute which regulates speech and expression must be narrowly drawn so as not to infringe on constitutionally protected speech.” People v Taravella, 133 Mich App 515, 519; 350 NW2d 780 (1984). The statute at issue here is tailored specifically to reach only that speech which is coupled with the specific intent to commit particular crimes against children; the state’s compelling interest in preventing these crimes weighs heavily against protecting such speech.
While no published decision of a Michigan court addresses this question, courts in several other jurisdictions have upheld similar “child luring” statutes against First Amendment challenges. The New York Court of Appeals upheld that state’s “child luring” statute, finding that it was “not directed at the mere transmission of certain types of communication over the Internet” because “[a]n invitation or enticement is distinguishable from pure speech.” People v Foley, 94 NY2d 668, 679; 731 NE2d 123 (2000). That court further noted that “speech used to further the sexual exploitation of children does not enjoy constitutional protection[.]” Id. at 683.
The Illinois Court of Appeals similarly rejected the idea of First Amendment protection for a defendant who had engaged in Internet conversation with a person he believed to be a 14-year-old girl for the purpose of arranging a sexual encounter: “It would be impossible for the act of solicitation to occur without the exchange of words between offender and victim, and defendant’s ‘beliefs’ and his discussions with children or those he believes to be children regarding sexual activity do not rise to the level of constitutionally protected speech.” People v Ruppenthal, 331 Ill App 3d 916, 920; 771 NE2d 1002 (2002).
Federal courts construing federal laws have likewise found no constitutional free speech claim available to protect pedophiles seeking sexual relationships with children via the Internet because the laws are tailored sufficiently narrowly. “Any limited or incidental effect on speech does not infringe on any constitutionally protected rights of adults. Put another way, the Defendant simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sex acts.” United States v Bailey, 228 F3d 637, 639 (CA 6, 2000) (interpreting 18 USC 2422[b] as it read then, “Whoever . . . knowingly persuades . .. any individual who has not attained the age of 18 years to engage in ... any sexual act for which any person may be criminally prosecuted, or attempts to do so ...
We similarly find no merit in the argument that § 145d might impermissibly burden free speech. Section 145d requires that a defendant send a computer communication with the specific intent to commit, attempt to commit, conspire to commit, or solicit someone else to commit certain conduct with perceived minors. The various enumerated examples of intended conduct within § 145d(l)(a)-(c) all constitute acts that the Legislature already has criminalized. The protection of children from predators plainly qualifies as a compelling state interest, and subsection 145d(l) narrowly affects only those defendants who specifically target children for unlawful purposes. It does not punish those who post messages intended for all Internet users, nor those who inadvertently engage in e-mail conversation with minors. Section 145d criminalizes specific conduct directed toward sexual abuse of children, it does not criminalize words alone or protected expression. Consequently, we conclude that § 145d(l) does not infringe on defendant’s federal or state freedom of speech guarantees.
VI. INTENT TO ATTEMPT TO PRODUCE CHILD SEXUALLY ABUSIVE MATERIAL
The prosecution next challenges the circuit court and district court determinations that the evidence at the preliminary examination did not support a charge that defendant violated MCL 750.145d(l)(a) by attempting to commit conduct proscribed under MCL 750.145c:
(2) A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony....
MCL 750.145c(l)(m) defines “child sexually abusive material” to include “any depiction ... which is of a child or appears to include a child engaging in a listed sexual act....” MCL 750.145c(l)(h) defines “listed sexual act” as including “sexual intercourse.” And MCL 750.145c(l)(p) in turn defines “sexual intercourse” as including “oral-genital.”
When a charged violation of MCL 750.145d is premised on the underlying offense proscribed by MCL 750.145c, the elements of the offense are: (1) that defendant used the Internet or a computer to communicate with any person, (2) for the purpose of attempting to arrange for, produce, or make any child sexually abusive material, and (3) defendant believed that the intended victim in the child sexually abusive activity or material is a minor.
Over the course of the instant messages on July 7, 2003, defendant asked inozentangel if he could videotape their sexual encounter. The evidence tends to establish that defendant used a computer or the Internet to communicate with a person defendant believed was a 14-year-old girl and supports a reasonable inference that defendant communicated with inozentangel for the purpose of attempting, or with the specific intent to attempt, to arrange for, produce, or make “child sexually abusive material.” MCL 750.145c. Noting again that “circumstantial evidence and reasonable inferences” are sufficient to bind over a defendant, the evidence at the preliminary examination here supported a reasonable inference of defendant’s guilt under MCL 750.145d(l)(a), premised on conduct proscribed by MCL 750.145c(2); the circuit court and the district court therefore erred by dismissing this third count against defendant. Woods, supra at 288.
VII. EVIDENTIARY RULING ON EXPLICIT PHOTOGRAPH
The prosecution argues that the circuit court erred by granting defendant’s pretrial motion in limine to exclude the explicit photograph that defendant had e-mailed to inozentangel. “The decision to admit or exclude photographs is within the sole discretion of the trial court.” People v Mills, 450 Mich 61, 76; 537 NW2d 909, mod on other grounds 450 Mich 1212 (1995).
The prosecution correctly observes that the photograph, which defendant e-mailed to inozentangel during their first conversation on July 1, 2003, has some probative value because it tends to establish that defendant contacted inozentangel for unlawful sexual purposes. MRE 401. The photograph does not possess significant or substantial probative value, however, but represents only cumulative evidence in light of the printed chat logs, which document defendant’s repeated and express statements indicating sexual intent, and Deputy Gibson’s testimonial description of the photograph. Given the insignificant probative value attached to the photograph, and the trial court’s opinion that admission of the photograph might unfairly prejudice defendant, we cannot conclude that the circuit court abused its discretion by excluding the photograph pursuant to MRE 403. Mills, supra at 76; People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001) (a “decision on a close evidentiary question ordinarily cannot be an abuse of discretion”).
VIII. CONCLUSION
We hold today that a defendant may be bound over on a count of violating MCL 750.145d for each instance where there is probable cause based on evidence tending to establish that defendant used the Internet or a computer to communicate with a minor or perceived minor with the specific intent to attempt to commit one of the crimes specified in the statute as applicable underlying offenses. We further hold that MCL 750.145d does not infringe on First Amendment rights because it does not criminalize “words alone”; it criminalizes communication with a minor or perceived minor with the specific intent to make that minor the victim of one of the crimes identified in the statute.
We affirm the circuit court’s April 7, 2005, order to the extent that it denies defendant’s motion to quash count I and grants defendant’s motion in limine seeking exclusion of the photograph. We reverse the circuit court’s April 7, 2005, order to the extent it denies the prosecution’s motion to amend the complaint to add count II and count III. We remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
Gibson’s instant messenger service archived his subsequent exchanges with timmyd683 and cerv25, another screen name used by defendant, and the prosecution introduced at the preliminary examination printed copies of the exchanges.
The recap of the e-mail conversations will refer to “he” and “she” for ease of following the thread of conversation. “He” is defendant/timmyd683 and “she” is Officer Gibson/inozentangel. Where direct quotations are included, they retain the grammar, punctuation and spelling reflected in the printed exchanges between defendant and inozentangel.
Many sexually explicit and disturbing details of the conversation are left out of this opinion, though some are included to ensure the record is clear on the nature of the conversations defendant had with this perceived minor.
The parties do not dispute that defendant communicated using this screen name in addition to timmyd683.
Shortly after defendant’s arrest, Gibson tape recorded an interview with defendant. The prosecution played the tape during the preliminary examination, but the tape’s content was not transcribed, and no documentation of the interview’s content exists in the record provided this Court. At the preliminary examination, Gibson stated that during the interview, defendant “initialed on the bottom of the[]” July 1, 2003, through July 6, 2003, printed instant message exchanges between timmyd683/cerv25 and inozentangel.
Before the issuance of the July 2004 complaint, defendant had pleaded guilty to a charge of using a computer for the purpose of committing or attempting to commit CSC III, but at a June 25, 2004, hearing the circuit court granted defendant’s motion to withdraw the plea, primarily because defendant had not been advised of the minimum and maximum sentences applicable to the crime.
On November 29, 2004, defendant filed motions to dismiss the charges, which solely were premised on his computer communications, on the bases that (1) MCL 750.145d is constitutionally vague and overbroad in violation of the First Amendment, and (2) the charges violate his due process and equal protection rights.
Pursuant to the circuit court’s instruction at the January 18, 2005, hearing, the prosecution filed an amended felony information alleging against defendant only one count of using a computer or the Internet “for the purpose of committing or attempting to commit” CSC III, and a supporting bill of particulars.
The circuit court is not entirely clear in its reasoning on this point, although the outcome is clear enough: “And the reason why I do not find it was an abuse of discretion as to count three is because there were no pictures of any child or anything that could have been viewed as a child, and there was no device from which a picture could have been created in the vehicle at the time that the vehicle was stopped, and I also understand at this point that it is possible while you’re on the computer that you can send pictures back and forth at the exact same time. All right. And that did not occur as well as it relates to any picture or pictures that were of children or anything that could be viewed as a child.”
MCL 750.145d(9)(g) defines “minor” as “an individual who is less than 18 years of age.”
See People v Hall, 28 Mich App 662, 663; 184 NW2d 742 (1970) (holding that MCL 750.92 was not applicable because MCL 750.131, “the statute under which defendant was convicted, expressly provides for the punishment of the offense of attempting to break, burn, blow-up or otherwise injure or destroy any safe”). To the extent that defendant relies on People v Meyers, 250 Mich App 637, 653; 649 NW2d 123 (2002), this Court in that case did not analyze or compare MCL 750.145d with MCL 750.92, but only “assume[d] for the sake of analysis that ‘attempts’ under MCL 750.145d ... require the same sort of proof necessary to demonstrate an attempt under MCL 750.92 ....” This Court in Meyers acknowledged that no Michigan case law “explain[s] whether the attempts .. . [referenced in MCL 750.145d] mirror or differ from attempts under MCL 750.92.” Meyers, supra at 653.
We agree with the prosecution’s suggestion in its bill of particulars that, alternatively, defendant’s conduct on July 7, 2003, and early July 8, 2003, also could support a count under MCL 750.145d(l)(a). The chat logs reflect that defendant confirmed the details of the planned sexual encounter and in fact defendant drove to the high school around the agreed upon meeting time that night.
Consider for example the start of every baseball game; when the plate umpire yells “play ball,” the speech is not words alone; it is also well recognized as the conduct that starts the game.
We decline to specifically consider defendant’s due process and equal protection claims because this appeal is limited to the scope of this Court’s order granting leave to appeal, MCR 7.205(D)(4), and defendant has not raised these constitutional issues in a cross-appeal. Jenkins v Patel, 256 Mich App 112, 130; 662 NW2d 453 (2003), rev’d on other grounds 471 Mich 158 (2004).
At the time of the events at issue here, MCL 750.145c(l)(m) was numbered MCL 750.145(1)(1); MCL 750.145c(l)(h) was numbered MCL 750.145c(l)(g); MCL 750.145c(l)(p) was numbered MCL 750.145(c)(l)(o).
Although the challenged photograph was not provided to this Court, the parties do not appear to challenge the prosecution’s description that the photograph “depicted a man’s midsection,” or that the “man’s pants were down and his hand was on his exposed penis.” | [
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Fer Curiam.
In this wrongful death, medical malpractice action, plaintiff appeals as of right a circuit court order granting summary disposition for defendants Hurley Medical Group, EC., doing business as Hurley Medical Center; and Dr. Moongilmadugu Inba-Vazhvu. The circuit court found plaintiffs complaint time-barred and granted summary disposition under MCR 2.116(C)(7). We reverse.
i
Flaintiffs decedent, Carl Johnson, went to Hurley Medical Center’s emergency room in Flint at approximately 2:40 p.m. on November 22, 1997, and related complaints of chest pain that extended to his arms during the previous four to five months, as well as shortness of breath. Johnson’s medical history included high cholesterol, hypertension, and smoking. The medical center admitted Johnson, and Dr. Kenneth Jordan and other doctors treated Johnson until they discharged him shortly before 3:00 p.m. on November 23, 1997.. According to the complaint, Johnson received “instructions to continue Zestril, Dyazid and ... Fenoprophen and to maintain a low salt, low cholesterol and low sugar diet.” Johnson also was advised to visit his primary physician, Dr. Jordan, within the next week and to see Dr. Inba-Vazhvu for a stress test.
Plaintiffs complaint alleges that on November 26, 1997, Dr. Inba-Vazhvu examined Johnson and scheduled a stress test for the next week, but “did not perform. . . any other diagnostic tests to evaluate and/or determine the cause/source of [Johnson’s] chest pain. Further, Dr. Inba-Vashvu [sic] did not administer appropriate medical therapy to prevent myocardial infarction” and did not order “restrictions on [Johnson’s] activities . . . .” In the evening of November 26, 1997, Johnson died from a massive heart attack. After receiving letters of authority appointing her as personal representative of Johnson’s estate on July 31, 1998, plaintiff, Johnson’s widow, gave defendants notice of her intent to pursue medical malpractice claims on July 17, 2000, and filed this medical malpractice action on December 22, 2000.
Dr. Inba-Vazhvu moved for summary disposition pursuant to MCR 2.116(C)(7) (period of limitations) and (10), arguing that plaintiff failed to commence the action within the two-year medical malpractice period of limitations, which expired by November 26,1999, the second anniversary of the decedent’s death, and, although plaintiff gave defendants notice of her intent to commence a medical malpractice action as required by MCL 600.2912b on July 17, 2000, within two years of her appointment as personal representative, the Supreme Court in Waltz v Wyse, 469 Mich 642, 655; 677 NW2d 813 (2004), held that the filing of a medical malpractice notice does not operate to toll the wrongful death saving period under MCL 600.5856(d). Further, this Court’s decision in Ousley v McLaren, 264 Mich App 486; 691 NW2d 817 (2004), applied Waltz retroactively. Hurley Medical Center concurred in Dr. Inba-Vazhvu’s motion.
Plaintiff sought to distinguish Waltz and Ousley on the basis that the plaintiffs in those cases had failed to bring the action within the three-year ceiling of the wrongful death saving period, MCL 600.5852, whereas plaintiff had brought this action within that period. The circuit court granted the motion for summary disposition pursuant to MCR 2.116(C)(7), and plaintiff reasserts her arguments on appeal.
ii
Whether a period of limitations applies in particular circumstances and whether the doctrine of equitable or judicial tolling should apply given the facts of this case constitute legal questions that this Court considers de novo. Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 418-419, 432-433; 684 NW2d 864 (2004); Detroit v 19675 Hasse, 258 Mich App 438, 444-445; 671 NW2d 150 (2003).
We first observe that a panel of this Court has rejected the distinction plaintiff seeks to draw between the Waltz and Ousley cases and this case, which distinction is based on the distinction between the two-year and three-year provisions of the saving statute. In Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 574-575; 703 NW2d 115 (2005), the Court stated:
Farley argues that neither Waltz nor Ousley addressed whether a suit is timely when, as here, the personal representative filed suit within three years after the two- year medical malpractice limitations period (MCL 600.5805) had expired, and therefore those cases do not determine the outcome here. It is true that, in Waltz and Ousley, the personal representative filed suit after both the two-year malpractice limitations period (MCL 600.5805) and the three-year ceiling set forth in the wrongful death saving provision (MCL 600.5852) had passed. However, this factual distinction makes no difference. As noted, the three-year ceiling in the wrongful death saving provision is not an independent period in which to file suit: it is only a limitation on the two-year saving provision itself.
Thus, plaintiffs effort to distinguish Waltz on this basis must fail.
ill
Plaintiff asserts that the Supreme Court’s holding in Waltz, decided on April 14, 2004, has no applicability to this case because the relevant procedural events occurred before the issuance of the Waltz decision. In Ousley, supra at 486, this Court rejected the plaintiffs argument that Waltz should be applied only prospectively. However, in Mullins v St Joseph Mercy Hosp, 269 Mich App 586, 591; 711 NW2d 448 (2006), apanel of this Court declared a conflict with Ousley pursuant to MCR 7.215(J), and this Court subsequently convened a spe cial panel to resolve the conflict. The outcome of that case will determine this issue.
iv
Plaintiff also argues that if defendants’ and Farley’s interpretations of Waltz are correct, equity demands the application of judicial tolling because plaintiff was required to file the notice of intent under MCL 600. 2912 and she relied on Omelenchuk v Warren, 461 Mich 567; 609 NW2d 177 (2000), clarified and overruled in part in Waltz, supra at 652-655, in filing her claim when she did. In Mazumder v Univ of Michigan Bd of Regents, 270 Mich App 42; 715 NW2d 96 (2006), a panel of this Court agreed that, separate and apart from the pure retroactivity question decided in Ousley, the doctrine of equitable or judicial tolling applies in situations such as that involved here. Because this issue is dispositive regardless of the decision of the conflict panel, we reverse and remand for further proceedings.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
In September 2002, pursuant to the parties’ stipulation, the circuit court dismissed Dr. Kenneth Jordan from the action.
2 The Farley Court also stated:
We note that the three-year ceiling in this provision does not establish an independent period during which a personal representative may bring suit. Specifically, it does not authorize a personal representative to file suit at any time within three years after the period of limitations has run. Rather, the three-year ceiling limits the two-year saving period to those cases brought within three years of when the malpractice limitations period expired. As a result, while the three-year ceihng can shorten the two-year window during which a personal representative may file suit, it cannot lengthen it. [Farley, supra at 573 n 16 (emphasis in original).]
We do not reverse on the basis of the rule set forth in Pohutski v City of Allen Park, 465 Mich 675, 695-696; 641 NW2d 219 (2002), as suggested by Judge O’Connell in his concurring opinion, because this is the precise issue to be determined by the conflict panel. | [
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] |
Marston, J.
The conclusion of law and the judgment rendered in this case, upon the facts found, were erroneous. Plaintiffs in error expressly refused to accept the paper of Stanchfield and discharge Foster. Their receiving afterwards and retaining what purported to be the paper of the late firm of Foster & Stanchfield, without knowledge that it was signed by Stanchfield in the late firm name without authority, cannot be considered as an acceptance thereof by them and as a discharge of Fos ter. They at no time accepted any paper as a payment’ or satisfaction of the original indebtedness, and there was no such delay on their part in the enforcement of their claim as would bring this case within the ruling in Smith v. Shelden, 35 Mich., 42.
The judgment must be reversed and a judgment rendered in this court for the sum of $353.76, with costs of both courts.
The other Justices concurred. | [
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Marston, J.
Complainant filed his bill to have a cloud upon certain real estate which he claimed to own in fee, removed.
It is clear that defendant Cook In 1855 purchased the lands in question, with other lands, from one "Watson, and that the conveyance thereof was properly recorded in the county where these lands are situate on the 20th day of February of that year. The premises were afterwards sold by Cook to third parties who entered into possession thereof and made improvements thereon, but being unable to pay the consideration as agreed, the lands passed back, and the title thereto, to defendant Cook. He also leased the premises in 1859, by a written lease, and in 1862, by a written contract, agreed to sell the lands to certain other parties, and that possession was taken by the lessees and grantees under these instruments.
■ Cook’s grantor Watson purchased these and other lands in 1854, from the patentee. Some of the lands embraced in this conveyance were situate in St. Clair county where this conveyance was properly recorded December 29th, 1854, but it was not recorded in the county of Calhoun, where the lands in dispute are situate, until May 23d, 1877. Thus far the evidence is clear and undisputed.
Complainant claims to have purchased these premises in good faith and for a valuable consideration from Hugh McCurdy on the 20th December, 1876, which deed was recorded on the next day; and that McCurdy purchased from the patentee, who was Watson’s grantor under the unrecorded deed, July 17, 1871, recorded July 22d of the same year.
There is evidence in the case tending to show that McCurdy, when he purchased, had notice of the previous unrecorded conveyance from the patentee to Watson. Mr. McCurdy was not sworn, and it is not claimed really, that, as the case now stands, he could be considered as a bona fide purchaser.
Can complainant be so considered? Complainant before purchasing obtained an abstract of the property, •which showed the conveyances under which Cook claimed title.
At the time he purchased he had not seen the land, and the only information and all the information he had respecting its condition, value, etc., he had obtained from a Mr. Fox, who resided near the premises. 'Fox informed him that the parties who originally occupied the land had abandoned it; that it had been left for a number of years without any owner apparently, and that a Mr. Ellis was then working the land; that some ten or twenty acres had been cleared and broken up, and a log house built thereon; that no one was • occupying the house and it was going to decay. Acting upon this information and without making any farther or other inquiries, except in reference to taxes which he learned had been paid, except a certain ditch tax, he procured an abstract as already mentioned, and wrote to Mr. McCurdy about purchasing the premises. The negotiations resulted in complainant preparing a quit-claim deed for McCurdy to execute which was done and sent to a certain bank, where complainant paid $300 for Mr. McCurdy and obtained the deed.
In February, 1877, complainant went for the first time to see the land. On February 27, he leased the land to Ellis; on the 28th he wrote Cook that he should have to file a bill in chancery to remove the cloud from his title unless he, Cook, would quit-claim to him, and on the following day, March 1st, without awaiting a reply from Cook, the bill of complaint was filed. All this appears from complainant’s own testimony.
There was evidence tending to show that Ellis obtained his original possession from parties who had obtained possession from Cook under the land contract referred to, and that he, Ellis, had, at his house just opposite this land, in 1864 or I860, had a conversation with Cook about it, in which the latter informed Ellis that he had purchased it, and they together went into and examined the land, and Ellis afterwards sent a person to Cook to ascertain what he, Cook, would take for the land, but the price was placed so high that Ellis did not purchase.
This is but a brief abstract of the principal facts; the impression made from a careful reading of the entire evidence in the case is strong, and cannot be removed by any process of reasoning that complainant had, before purchasing, sufficient notice to have put a careful, prudent man, — one who respected and would be willing to recognize the rights of others, — upon inquiry, but being fearful that farther inquiry would develop facts which would prove injurious to his interests, he carefully abstained therefrom, but procured a deed, endeavored to gain possession, and then hurriedly filed his bill of complaint in order that he might gain some undue advantage thereby. Had the same degree of diligence been observed before he acquired his deed, which was shown afterwards, in discovering that Mr. Cook claimed title to the premises, it is needless to observe he would have invested much less in the purchase than he claims to have done. As an intending purchaser he had sufficient notice of the prior rights or equities of third persons, which would have enabled him to ascertain their nature and extent by inquiry. What proved sufficient after the purchase seems to have been insufficient previous thereto. The facts were the same; his interests were different. Willcox v. Hill, 11 Mich., 263; Hosley v. Holmes, 27 id., 427.
Complainant, upon still another ground, would be unable to maintain this bill. Before making his agreement of February 27th with Ellis, he was not in the actual possession of the premises, while Ellis was. He could then have commenced an action of ejectment against Ellis and Cook to have recovered the possession. The only apparent object he had in making the agreement with Ellis was to enable him to go into a court of chancery, and thus prevent a jury from passing upon the disputed facts as to the bona fieles of his purchase. The statute in authorizing a person in possession to file a bill to quiet his title, was not intended to reach a case where a party by sharp practice acquires possession twenty-four hours before filing his bill, and. where previous thereto he had a remedy by ejectment.
The decree must be reversed and the bill dismissed with costs.
The other Justices concurred. | [
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Cooley, J.
This appears to have been an action of assumpsit, and was sent by the circuit court to a referee, who filed in the case a finding of which the following is a complete copy:
“ Finding of facts. I allow the plaintiff’s claim as follows :
Balance due December 1, 1876..................$197 75
Interest to date, 7 per cent.................... 12 19
$209 94
I allow defendant’s set off as follows:
Four loads of wood, 1J cords each, six cords of wood, $4 per cord............$24 00
I deduct the $6 credited for wood....... 6 00
- 18 00
Balance due plaintiff....................... $191.94
Law. I find that the defendant is indebted to the. plaintiff in the sum of one hundred and ninety-one dollars and ninety-four cents ($191.94) and that judgment should be rendered in favor of the plaintiff and against the defendant for the above amount.”
(Signed by the referee.)
Prefixed to the report were minutes of evidence, from which it might be inferred that the plaintiff’s claim was the balance remaining due on sales of lager beer continued through a series of years, ending in 1877, and that plaintiff was a brewer. It nowhere appears, however, that the beer was of domestic manufacture, and it is as reasonable to infer from the brief minutes of evidence which are given that a considerable portion of the bill was made up of sales prohibited by the liquor law which was repealed in 1875 as of sales that were legal. This, however, is of no importance, because we cannot look into the evidence, but must confine our review to the finding. Peabody v. McAvoy, 23 Mich., 526; Brown v. McHugh, 36 Mich., 433. Besides, it nowhere appears that these minutes are minutes of all the testimony' the referee had before him.
The finding is not a finding of facts at all, but a mere statement of the referee’s conclusions as to what sums he should allow. His conclusions should have been based upon such a statement of facts as would have enabled us to see that they were legitimate; such a statement as would show why the defendant should be charged with the sum for which he advises judgment. There is nothing of the sort here, and no reason is apparent why the' referee should have distinguished in his report between findings of fact and finding of law, when manifestly the whole statement is only the conclusion he thinks should follow from facts he does not give us.
The defendant excepted to the report, but the court overruled the exception, and ordered judgment. This was erroneous. The finding must be sufficient to sustain a judgment, and this was not. As no action of the referee preceding the report is complained of, this exception was all that was needful, and the court should have sustained it. Amboy etc. R. R. Co. v. Byerly, 13 Mich., 439, 444.
There has been a mistrial, and the judgment must be set aside and the case remanded. The defendant must recover costs of this court.
The other Justices concurred. | [
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] |
Cooley, J.
But one question is presented by this record, and that is, whether the probate and allowance of the will of George Hebden by the probate court of Wayne county, was valid.
By the will of Mr. Hebden the judge of probate of Wayne county was made a legatee. The will was presented in said probate court for allowance April 7, 1871,. and the judge of probate made an order that May 2,. 1871, be assigned for a hearing thereon, and that notice thereof be given by publication in one of the Detroit daily papers — which was named — for three successive weeks previous to said day of hearing. On the day last named the circuit judge of the judicial circuit embracing Wayne county appeared in said probate court, and the hearing was had before him and the will admitted to probate. This statement sufficiently presents the facts.
The order for hearing which was made by the judge of probate was the usual order which the statute requires to be made in such cases. Comp. L., § 4338. The statute under which the circuit judge assumed jurisdiction is embraced in compiler’s sections 5208 and 5209 of the Compiled Laws, the first of which provides that when the judge of probate is heir or legatee, he shall be deemed incapacitated for executing the duties of his office “in relation to that estate;” and-the second provides that when he is interested in any question to be decided by the court, he shall be deemed incapacitated for feting in the decision of that question. And in either case the judge of the circuit court for the county shall perform the duties of the judge of probate.
The question of jurisdiction which is made by the plaintiff in error depends upon the authority of the judge of probate to make as he did the order for hearing. It. is insisted that that order was void, and therefore that the proceedings of the circuit judge must fall to the ground.
The proceedings in our opinion are not defective. The judge of probate was not a legatee at the time he made the order for hearing; he was only named legatee in an instrument purporting to be a will, but the validity of which was yet to be determined. It might turn out that it was no will at all, and thus he would never become legatee. His being named legatee in the instrument did not, therefore, disqualify him from acting in relation to that estate.
Neither, when the order for notice was made by him was there any question to be decided by the judge in which he was interested. A question implies something in controversy, or which may be the subject of contro- • versy; but this order was the determination of no question ; it was only preliminary to the making of questions. It was in no proper sense judicial action at all; any more than it is when the sheriff fixes the time for an execution sale and the paper in which he will publish his notice, or when the mortgagee does the same thing in proceeding to the foreclosure of his mortgage under the power of sale. The statute itself determined the requisites of the order, and the making it was a formality, rather than the decision of a question.
The fact that the judge is interested is no objection to his making formal orders that put the case on the road to a determination: Richardson v. Boston, 1 Curtis C. C., 251; Washington Ins. Co. v. Price, Hopk. Ch., 2; Buckingham v. Davis, 9 Md., 324; Heydenfeldt v. Towns 27 Ala., 423. We think the order in question is to be considered such an order.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Per Curiam.
Motion is made for a mandamus to compel the judge below to allow a set-off of one judgment against another, which he refused on account of a dispute as to rights of an attorney and assignee.
It is very well worth considering whether the statute regulating set-off of executions may not have in some respects interfered with the power to set-off judgments on motion. But it is not necessary to determine this because the case before us does not require it.
It is well settled that the power of courts to set off judgments on motion and not in q regular judicial proceeding is subject to a much broader discretion than would be admissible in a suit for the same purpose, and that a set-off may be denied on motion which might be enforced by a regular action. In Simson v. Hart, 14 Johns., 63, which is a leading case, it was held that the denial of a set-off by motion was not subject to review and was not res judicata and was no bar to a bill in equity. The doctrine has been very fully discussed since, and the discretionary character of the proceeding pointed out in Purchase v. Bellows, 16 Abb. Pr., 105; Nicoll v. Nicoll, 16 Wend., 446; Martin v. Kanouse, 9 Abb. Pr., 370; Smith v. Lowden, 1 Sandf. S. C., 696; Gihon v. Fryatt, 2 Sandf. S. C., 638.
The case of Nicoll v. Nicoll was not unlike the present one, and' seems to have been followed by the circuit judge.
But we cannot properly review his discretion by mandamus.
The writ must be denied with costs. | [
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] |
Campbell, C. J.
On the 28th day of August, 1878, Mrs. Beade applied to Frank Emerick, circuit court commissioner of Washtenaw county, for a warrant to arrest Badger under the non-imprisonment act, and upon the return of the warrant, his objections to the proceedings being overruled, the respondent declined making any issue, claiming the showing insufficient, and -was committed. He brings certiorari, and the objections made go to the legal sufficiency of the affidavits presented to the commissioner.
The right to issue such a warrant is confined to cases in which, by preceding provisions of the chapter authorizing it, a defendant cannot be arrested or imprisoned. Comp. L., § 7176. The preceding sections 7174-5 prohibit arrests in civil proceedings for the recovery of money on a judgment or decree founded on contract, or for recovery of money due on contract, or for damages for the breach of a contract, and except from the prohibition proceedings for contempt to enforce civil remedies, actions for fines,-penalties or forfeitures, or for breaches of promise to marry, or for moneys collected by a public officer,- or for misconduct or neglect in office, or in professional employment.
This exemption from imprisonment has been extended by the Constitution, so that there is now no power to arrest in some of the cases mentioned in section 7175. The statute, however, has not been altered to conform to the Constitution, and. may possibly have left some cases beyond the reach of the punitory jurisdiction which would have been provided for had- such an amendment been adopted. We are not required in this case to discuss that question.
In cases where the preceding sections exempt ■ parties from arrest, a warrant may be applied for to the officers named if “satisfactory evidence shall be adduced to such officer- by the affidavit of the plaintiff or of some other person or persons that there is a debt or demand due to the plaintiff from the defendant, and specifying the nature and amount thereof as near as may be, for which the defendant, according to the provisions of this chapter, cannot be arrested or imprisoned, and establishing one or more of the following particulars.” Those particulars are in brief, first, that defendant is about to remove his property beyond the jurisdiction of the court where suit was brought, with intent to defraud his creditors; or second, his refusal to apply his assets in payment of the judgment rendered in favor of the complainant; or third, that he has assigned, removed or disposed of, or intends to dispose of his property with intent to defraud his creditors; or foxwth, that he fraudulently contracted the debt or incurred the obligation sued on.
When the warrant issues and the respondent is brought in he may controvert the allegations and verify his denial by affidavit, in which case only a further examination is had on the facts. § 7180. The whole issue is upon the allegations of the complainant, and the result depends upon those and their truth, which is held admitted if not denied. § 7182. Spencer v. Hilton, 10 Wend., 609.
The affidavits must set up facts on knowledge and not on belief, and if complainant does not know the facts, other affidavits must be produced from those who do know them. People v. Recorder of Albany, 6 Hill, 429; Proctor v. Prout, 17 Mich., 473. The fact that matters stated are not hearsay, but are on personal knowledge, must distinctly appear. Id. And it is held in the same cases that the facts must be specific and not general so that a defendant may know precisely what he is called on to controvert. See also Spencer v. Hilton, supra; Smith v. Luce, 14 Wend., 237; Matter of Teachout, 15 Mich., 346. The facts must be stated as a witness would be allowed to state them on the witness stand, — not inferentially, but directly and positively. For a similar principle see People v. McAllister, 19 Mich., 215.
In the present case, where the claim was alleged to be in judgment, it was necessary to set forth such a judgment as would authorize the proceeding, as well as such other facts as would convict the respondent of the conduct which the statute makes sufficient ground for a warrant. ■
The commissioner in his warrant sets forth that satisfactory evidence has been adduced before him of all of the kinds of fraud set forth in the statute, except fraud in the creation of the liability; It is therefore necessary to see what he had before him.
There were three affidavits, — one of Mrs. Eeade covering the whole ground inferentially; one of Morgan Vaughn showing the condition of respondent’s deposit account; and one of Norton S. Case confined to his proceedings under an execution.
Mrs. Eeade undertakes to set out the recovery of a judgment. She does not state.when the judgment was rendered, except that it may be inferred it was sometime between December 5,1877, and February 9th, when a motion for a new trial was denied which had been made February 2d, 1878. As every judgment is of rec ord and can be precisely identified, tbe date is a necessary part of its description; and while the affidavit may stand in lieu of an exemplified copy, it should give the same information as to its identity. • Case’s affidavit refers to Mrs. Beade’s and gives no further description.
Nothing whatever appears in any of these affidavits to show what was the form of action, or whether it was brought in assumpsit or in tort, on contract or on some other liability. The only explanatory averment is “that said defendant now owes and is indebted to said deponent, the said judgment and the full amount thereof principal, interest and costs, and said defendant cannot be arrested, imprisoned, by or in pursuance of the provisions of sections one and two, or either of them, of chapter two hundred and thirty of the Compiled Laws of 1871,” etc.
It is indispensable to the attaching of jurisdiction to grant a warrant that the judgment be brought distinctly within the statute. If the facts had been so set out as to show upon what precise claim the judgment was rendered, and in what form of action, it would then have been a question of law whether it was or was not within the law. The simple averment that the defendant could not be arrested under sections one and two, allowing its peculiar form above quoted to mean precisely thatj is neither more nor less than a conclusion of law. It is not a statement of fact. The commissioner’s finding in his warrant does not, as it could not, show what the judgment was, but merely declares it to have been a personal judgment. It is unnecessary to say that there are several cases where no arrest can be allowed, in which the case does not come within the language of the sections referred to. Such might be judgments in replevin, or for breach of promise to marry, the Constitution' having changed the rule as to the latter, and other statutes preventing the former from being grounds of arrest. Fuller v. Bowker, 11 Mich., 204; Tyson’s Case, 32 Mich., 262. It is also to be observed that the author ity still exists to arrest on contracts to marry where fraud is charged (Sheahan’s Case, 25 Mich., 145), and that there are many cases where there may be an election between contract and tort. There has been much controversy as to the application of the Non-imprisonment Act to such cases, and as courts have found some trouble in solving these disputes, it cannot be held sufficient for a private suitor to invoke the extraordinary and severe penalties of this law on her own inference as to what the law means without informing the officer on what fact she grounds her inference. Thus in Bohanan v. Peterson, 9 Wend., 503, it was intimated that an attorney could not be arrested in a civil action for retaining moneys, but could only be imprisoned on contempt proceedings, and that bringing a civil action was an election of remedies waiving the right of arrest. In Stage v. Stevens, 1 Denio, 267, this was overruled.
In Brown v. Treat, 1 Hill, 225, it was held that where the cause of action grew out of contract relations, no arrest was allowed, whether the action was in assumpsit or in tort. In McDuffie v. Beddoe, 7 Hill, 578, the court of errors held that a defendant might be taken on execution out of chancery on a bill filed for fraud, although springing from contract dealings, and one of the Senators disputed the correctness of Brown v. Treat. In Suydam v. Smith, 7 Hill, 182, Bronson C. J. held the decision of Brown v. Treat did not cover an action of trover against a bailee brought, by an assignee of the bailor who could not have sued in his own name on the contract. In Miller v. Scherder, 2 Comst., 262, it was held that where a plaintiff unites in one suit causes of action on contract and tort, the defendant is exempted by the Non-imprisonment Act from arrest, while if he fails in his action he cannot by that election prevent the defendant from issuing execution for the'arrest of plaintiff for his costs.
These cases, which might be multiplied, show the propriety and necessity of requiring facts and not infer enees to be set forth in the affidavits. The fact that the commissioner on these papers was only able to infer —as his warrant shows — that a “ personal ” judgment had been rendered, exemplifies this further. He has found and could find nothing to indicate the rendering of such a judgment as would justify a warrant. There are very few cases of any Mnd where a personal judgment may not be rendered.
Regarding the affidavits as fatally defective on this preliminary point, we need not go further and discuss the manner in which they sought to make out misconduct, nor would it be proper to consider the grave questions of jurisdiction and legal validity of the statutory proceeding as affected by the Constitution and the bankrupt laws.
The proceedings must be quashed with costs.
The other Justices concurred. | [
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] |
Makston, J.
Plaintiff in error brought an action pf replevin under chapter 213 of the Compiled Laws to recover possession of certain horses. It appeared upon the trial that the horses had been permitted 'to run upon the highway; that they had broken into defendant’s cornfield; that he had taken and shut them up in his barn, there being no public pound in' that township; that he had reported the taking up of the horses to a justice of the peace and had posted notices of their seizure and sale. The proceedings on the part of the defendant it is not claimed were in accordance with the statute* but were defective; but the defense raised was that the action should have been commenced under and in accordance with the provisions of chapter 214 of the Compiled Laws, and the court so held.
Several errors are assigned, and which will be noticed, so far as deemed necessary, although not in the same order as presented in the brief of counsel.
First. That the court erred in refusing to charge the jury that there was no evidence tending to show that plaintiff knew at the time of the commencement of the suit that defendant claimed to have taken the horses for trespassing, and in charging that if he did know defendant had so taken them, the. latter would be entitled to recover the value of keeping them.
The only evidence introduced tending to show that plaintiff did have such knowledge was that the horses were taken up by defendant on October 24th, and on the same day notices were posted, describing the horses, and that they had been trespassing upon the premises of defendant; that one of these notices was posted upon the office door of F. F. Campau, a son of the plaintiff; that on October 27th this son of plaintiff went to defendant’s, saw the horses and inquired what they had done; that he returned the next day, claimed the horses and wanted to make an agreement with defendant as to their release, and that he afterwards made and swore to the affidavit, for and on behalf of the plaintiff, which was attached to the writ of replevin issued as commencement. of this suit.
, In my opinion this was sufficient evidence to go to the jury as tending to show knowledge on the part of the plaintiff. If the plaintiff’s son had sufficient authority to commence the action by making the requisite affidavit, without any special directions from his father, in my opinion the information which he had previously obtained, would be binding upon his principal. If he communicated the information he received and was specially authorized to commence this action, still he could not close his eyes to any part of the information he had obtained-. If he put the law in motion from the information he had gained from defendant and his acts, he could not, nor could the person who availed himself of his agency in the commencement of the action, avail himself of a part and refuse to recognize other portions. If knowledge on the part of plaintiff that the horses were taken and held by defendant for trespassing upon his lands, would determine in what form or under which chapter the action should be commenced, and the person-who made the requisite affidavit in commencement of the suit had such knowledge, the effect must be precisely the same, as though the knowledge had been brought home to the plaintiff, and his liability would be the same.
Second. It is said that the Act of 1867 (Comp. L.,'§ 2027 et seq.) is inconsistent with the ■ provisions of- the Act of 1846, and that the latter (chapter 214) is thereby repealed; and it is farther claimed that if defendant acted under the Act of 1867 he should have shown that it had been made operative by the board of supervisors.
We fail to discover anything in the Act of 1867 that could be considered as repealing those sections in chapter 214 which give the owner of beasts distrained the right to bring replevin. Whether authority could be conferred upon the board of supervisors, or any other body, to permit beasts to run at large upon public highways, may, to say the least, admit of considerable doubt. Upon principle the owner of lands adjoining the highway is entitled to the herbage growing thereon, and whatever rights the public may have in the highway, a common or pasture is not among them. Under another view of the case, however, this, question is not important.
Third. The controlling question in this case relates •to the right of plaintiff, under the facts, to bring replevin under the general statute relating thereto. The principal argument advanced in favor of the present action is that the proceedings of the defendant-in distraining the horses in question and in the giving of notice were irregular and not in conformity with the provisions of the statute. Surely such cannot be the proper construction of this statute. If so it leads to this, that replevin should only be brought in accordance with the provisions of chapter 214 where the beasts have been lawfully distrained. Section 22, however, provides that if it shall appear upon the trial that the' beasts. were distrained without any sufficient or justifiable cause, the plaintiff shall recover his damages caused by their unlawful detention. One object of this special statute is to afford a remedy to test the legality or regularity of the defendant’s proceedings in distraining them. A mere claim that beasts had been distrained where in fact they had not been, and the claim was but a mere pretense,— an afterthought, — would not defeat the plaintiff’s right to maintain replevin under the general statute; but where the defendant has in good faith taken the cattle damage feasant, then if the owner desires to bring replevin to test the legality thereof he must proceed under chapter 214. . This- question I consider as settled by the previous decisions in this State. Johnson v. Wing, 8 Mich., 163; Hamlin v. Mack, 33 Mich., 103.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
The fatal defect in the case of the plaintiffs in the court below was that Vanneter held the property which they replevied, by virtue of their own attachment. It may be perfectly true that they caused the attachment to be levied under a mistake regarding their legal rights; but the fact remains that Vanneter had seized and then held the property under the command of their own writ, and he had no authority to deliver it over to them while the attachment suit was pending. The demand they made upon him was consequently an idlo form.
E. D. Lewis for the motion.
Q. A. Smith against.
It is very plain that Yanneter could not be a wrongdoer as to these parties by obeying the command of their own writ. The fact that he also claimed to hold the property by virtue of another writ was immaterial, for if the other writ had never been sued out, the result must still have been the same. It may have been their misfortune that they put their own property into the custody of the law, but there it was when this suit was brought, and the officer to whose custody they had confided it could not be punished with the costs of a suit for declining to surrender his trust. If any error was committed in suing out the attachment, the officer should not be made to suffer for it, for it was certainly not his error.
The circuit judge' instructed the jury that if the property was purchased by the plaintiffs below and paid for by them under an arrangement that it was to be theirs until paid for by Watkins, then the plaintiffs would be entitled to prevail. It is evident from the charge tha^ the judge had his attention particularly directed to the question whether the levy of the attachment would not estop the plaintiffs from subsequently asserting title in themselves to any of the property attached; but the instruction given covers the whole case, and we have no alternative but to reverse the judgment.
The other Justices concurred.
Motion for rehearing. Submitted November 19. Decided November 22.
Cooley, J.
Motion is made for a rehearing in this case on the ground that the court misapprehended the facts in giving its decision, and that the point on which the case was made to turn was not raised in the circuit court. An affidavit explanatory of the facts is offered on the part of defendants in error, and another on the other pde disputing its statements; but we cannot listen to these. The case must be disposed of on the record as it comes to us.
The action in the court below was in replevin, brought by defendants in error for a yoke of cattle which they claimed as their own property. It appeared, however, that they had previously attached the same cattle as the property of one Watkins, • an absconding debtor; that their suit was discontinued; .that afterwards Mead & Fleming attached them also as the property of Watkins, plaintiff in error serving .the writ; and that still later the defendants in error attached them again, putting their' writ into the hands of plaintiff in error. As we understood it, it was while the cattle were held by plaintiff in error as. constable that they were taken by virtue of the writ in this suit; and we held this to be a fatal objection. It is now said it appears from the record, by plain inference if not expressly, that the constable did not so hold the property at the time this suit was brought.
The part of the record to which our attention is called, is the following: A witness who acted as counsel for defendants in error being on the stand, and having testified in relation to the first attachment, and that he advised Whipple in relation to it, the examination proceeded as follows:
“Q. Did you advise him in regard to the second attachment?
A. Yes.
Q. Mead & Fleming had then got out an attachment ?
A. Yes; and I learned that there was a defect in the officer’s return. I told Mr. Whipple he might get out a second attachment: it would do no harm, and we would have a chance to look up whether the return was amendable or not. And he did get out that second attachment and we never went near it at all.”
Now it is said that what the parties never went near at all was their own second attachment;, and as the writ in that suit was issued more than twelve days before the replevin suit was instituted, it had necessarily gone down before the cattle were taken on the writ of replevin. The evidence, as it appears in the record, is somewhat ambiguous, and it is not clear whether the witness means that the parties did not go near their own attachment suit or that of Mead & Fleming, in respect to which a question was to be looked up, apparently for the purposes of a contest. But it is of no importance which suit the witness had in mind; for if the parties allowed their own suit to go down, the plaintiff in error would nevertheless hold the property under their writ, as well as under that of Mead ■& Fleming, until he was notified of the discontinuance; and nothing in the case indicates that he had such notice, or was aware of the fact, before the cattle were taken from him on this writ.
But it is contended that even conceding this, the point is not open to plaintiff in error because not taken in the court below. A brief reference to the record will show this position to be unfounded. The circuit judge instructed the jury that if the purchase of the cattle was made by Watkins for the plaintiffs and paid for them under an arrangement that the property was to be theirs until paid for by Watkins, then the plaintiffs would be entitled to prevail. This charge rendered it necessary that all the facts entitling the plaintiffs to recover should appear; and if any fact essential to a recovery did not appear, the charge was erroneous. The defendant excepted to the charge, and he assigns in this court as a reason why the charge' was erroneous, the fact that the plaintiffs had shown that defendant was holding the property under their own writ, whose command he was not at liberty to disobey. He would have been equally at liberty to assign any other fatal defect in the plaintiff’s case whether mentioned in the court below or not. He made his point in the court below by excepting to the erroneous charge;, and he was at liberty to assign any number of reasons why it was erroneous which he could justify by the record. A party is never restricted in this court in the suggestion of reasons in support of his exceptions.
But it is further urged that the case proceeded in the court below on a substantial admission of the defendant that he knew the attachment suit of plaintiffs was disposed of, and only claimed to hold the cattle under the attachment of Mead & Fleming. Y/e find in the record no evidence that such was the fact. It is true that in one of the instructions which defendant requested the judge was asked to charge that when Vanneter took the cattle into his possession under the writ of attachment in favor of Mead & Fleming and against the property of Watkins, which writ was valid at the time he took them, he thereby acquired a valid possession which plaintiffs, by reason of their having previously treated the property as- belonging to Watkins, were not at liberty to dispute. This may seem to afford some countenance to the suggestion that he only claimed to hold under the Mead & Fleming writ. But it must be remembered that Vanneter held the cattle under the attachment of Mead & Fleming as the first lien; and the point suggested by this instruction was not the same with the one on which the case was decided. The fact that there was a question of estoppel arising out of the taking of the property on their own attachment, did not preclude the defendant from raising the further question that under, the circumstances he was entitled to hold the- cattle as against them on the prior writ. If is true that if that position was sustained it rendered the -other unimportant; but it is by no means uncommon for counsel to put what in effect is the same request in different forms, and it is very unsafe to draw conclusions therefrom so violent as would be the conclusion in this case that because the defendant insisted on his right to hold the property on the attachment of Mead & Fleming, he thereby conceded that he was not holding it under an attachment which confessedly was subsequent and subordinate.
The last request for instructions by the defendant . was, that “The taking of the cattle in question by the plaintiffs under a writ of attachment against Watkins, and retaining them under such writ by the consent and with the direction of the plaintiffs is such an act as estops them from setting up title in themselves against any person who has acquired rights in the cattle by treating them as the property of Watkins.” If we err in supposing that by this the counsel assumed that the defendant was then ^ detaining the property by the consent and direction of. the plaintiffs, there is nothing in the record by which we may be set right.
It is greatly to be regretted when a case goes off because of an imperfect presentation of the case on the record; but whether that is or is not the fact here, we see no escape from our previous conclusion. We must therefore deny the motion.
The other Justices concurred. | [
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Marston, J.
It clearly appeared that the award was signed by two of the arbitrators in the presence of each other, but- not in the presence of the third, who signed it at a different time and place, in the presence of one of the other two but not of both. This comes clearly within the decision in Daniels v. Ripley, 10 Mich., 237, and rendered the award invalid.
. These facts appearing and there being no dispute in reference thereto, the award should have been vacated, and it was error to render judgment thereon.
The judgment must be reversed with costs of both courts.
The other Justices concurred. | [
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Graves, J.
This is an appeal against a dismissal of the bill on demurrer. The bill sets up that in October, 1877, complainant’s sister,-.one Hannah Bearss, died intestate in Kent county without having had any children, and left between two and three thousand dollars of personal estate, and that upon distribution under the statute, complainant would be a distributee. That some time prior to her death decedent became an invalid and mentally incompetent to transact business; that defendant Aldrich, her step son, obtained by fraud some kind of writing from her, and then assumed possession of her property and claimed it under such writing; that some time thereafter he petitioned the probate court to be appointed guardian for a person named in the proceedings as Hannah Berass and not Hannah Bearss, on the ground that such person was physically and mentally incompetent; that the court appointed him and also appointed appraisers -who subsequently returned an inventory, but that such inventory specified no property as belonging to the estate except a little piece of land valued at $600; that the person intended to-be subjected to guardianship was decedent and that she was misnamed by design and with intent on the part of Aldrich to defraud; that he at once proceeded to exercise power as guardian over decedent on the strength of these proceedings and grossly misused her, and in November, 1877, filed in the probate court his alleged account as guardian, and that said account was false and fraudulent; that on the same day this account was presented, Aldrich petitioned for the appointment of his co-defendant as administrator, and in such petition described decedent as Hannah Berass, and not as Hannah Bearss; that pursuant to such application the court in December, 1877, appointed Davis administrator and he at once proceeded to act in that capacity on decedent’s estate.
The bill then sets forth the appointment of appraisers and commissioners to adjust claims and some other administrative proceedings, and particularly states that all the proceedings described decedent as Hannah Berass and not Hannah Bearss. It charges fraud against all the proceedings of defendants and maintains that the entire series are void. Answer on oath was waived.
The court is asked to declare the order on the account rendered by Aldrich as guardian, without force, and to appoint a receiver of the estate and give other relief wholly inconsistent with any validity in the action of the probate court.
We think it is clear that notwithstanding the amending act of 1871 in regard to equity jurisdiction over the settlement of estates (Comp. L., § 5197) there is no power to intervene in this case upon complainant’s own theory.
The only title the complainant asserts in order to come into court is that in consequence of her relation to decedent she would be entitled by the statute to claim as distributee from the administrator in case of anything left to be distributed.
The assets are personal property and not real, and hence she has no standing as heir. Whatever she might get would be from the administrator as distributee and not from her deceased sister as heir at law. But her position is that there is no administrator and that nothing prevents her from applying to the probate court for the appointment of a proper person to represent the estate, and who may call to account those persons of whom she complains.
According to the case made by the bill, the results aimed at, as well as the state of facts shown, demonstrate the necessity for moving in the probate jurisdiction, and also the futility of proceeding here at present.
The decree should be affirmed with costs. •
The other Justices concurred. | [
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] |
Graves, J.
Needham recovered in the circuit court on a claim -which grew out of a transaction between the parties in relation to the proposed transfer of a piece of land by Needham to Liddle’s son, and Liddle has brought error. The declaration consisted of a special count setting up an express agreement, together with the usual general counts in assumpsit.
The cause of action asserted in the special count is that in consideration that Needham promised to give to Liddle’s son, subject to the taxes of 1875, a warranty deed of certain land described, he, Liddle, promised to pay said taxes and give his note to Needham for $300 payable in one year with interest at ten per cent.; that he, Needham, gave the deed pursuant to the promise, but Liddle refused to pay the taxes or money or give the note. It will be observed that the agreement here set up was executory on both sides and that Liddle’s promise is alleged to have been made in consideration of that by Needham.
The count does not describe Liddle’s promise as made upon a past or executed consideration. The averment is not that he promised to pay taxes or give his note in consideration that Needham at his request had deeded to young Liddle. But the allegation is .that in consideration of Needham’s propuse that he would thereafter deed, he, Liddle, promised that he would thereafter give his note, etc., and the object of the count is to compel Liddle to perform this promise.
There was evidence that these parties made a verbal agreement in terms substantially as charged; that Need- ham subsequently and in compliance with the understanding drew ufr a blank note and made the deed and sent them to young Liddle; that the elder Liddle refused to pay any thing or to give the note, and claimed that he was not bound. There was also evidence tending to show that the deed had never been accepted by young Liddle as a conveyance, and that he disclaimed title under it. The evidence was ‘conclusive that the whole transaction was bare of writing except the deed and blank note, and that Liddle made no promise in terms at any time after the verbal bargain. The question was distinctly and fairly raised whether Liddle was or was not exempt from liability upon -his executory promise by operation of the Statute of Frauds. He insisted that he was exempt, but the court ruled against him. We think the point is clear. The agreement was for the purchase and sale of land, and the want of writing was fatal. Scott v. Bush, 26 Mich., 418; same case, 29 Mich., 523.
The agreement when made was without force. Neither party was bound by it. This direct infirmity due to the want of writing leads also to another objection. As Needham’s promise to deed was not binding at all, Liddle’s promise made entirely on the strength of it was not binding for lack of consideration.
In order to make one promise a valid and binding consideration for another, it must itself be valid and binding.
It is plain that no recovery was admissible under the special count.
Is the case in any better shape to justify recovery under the common counts? The court think not. If there is any chance for contending for an actionable right in favor of any party under them, it must be by implying an undertaking from a proved acceptance of Needham’s grant.
The case leaves no basis for any other theory. The door is closed against the existence of any tenable express promise. And if we assume that no technical difficul ties exist and concede as true what is strongly denied, that young Liddle actually accepted the deed as a conveyance, there being no pretense of acceptance through any other person, and still the case must fail. The undertaking to be implied would have to be imputed to the recipient of the grant, young Liddle, and not to his father, who as to this matter is to be regarded as a stranger. The unwritten bargain being of no force to constitute a contract and create legal contract relations cannot be resorted to as help in making out such a relation by implication. The only consequence of the attempt to imply a promise would therefore be to imply it as against a third person and indirectly negative the making of any promise by the party charged.
Inasmuch as the transaction had no legal validity, there was no ground of recovery, and the court erred in allowing it.
Judgment must be reversed with costs and a new trial granted.
■ The other Justices concurred. | [
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Cooley, J.
In the court below Prentice was plaintiff and sought to recover from Jennings the value of certain liquors which Jennings had taken from his possession. When their respective claims to the liquors were disclosed, it appeared that Prentice claimed the liquors under a general assignment- made to him by one Bullard for the benefit of his creditors, and that Jennings was a constable, and had levied upon the liquors by virtue of certain executions against Bullard and under a claim that the assignment was fraudulent and void.
1. . Prentice was a witness on his own behalf, and on cross-examination was asked several questions the purpose of which was to show that at the time the assignment was made to him he was wholly irresponsible. He refused to answer the questions, and the court, while declaring that the questions were proper, refused to require him to answer. The remark of the court in that connection — “I don’t think this is an inquisitorial age ” — appears to indicate an impression that an endeavor was being made to compel from the witness a disclosure of something humiliating or disgraceful to himself; but this was an error. The disclosure the questions called for was no more than governments frequently require of their citizens for the purposes of tax levies, and the feeling displayed by the witness when the questions were put to him was wholly uncalled for. But had the information which the questions were intended to elicit been damaging, that would have been no reason for refusing to answer.
The avowed purpose of the questions was to show that Prentice, by reason of want of pecuniary responsibility, was an unfit person to select for assignee, and to raise an inference that Bullard, in selecting him with knowledge of this unfitness, must have contemplated a fraud upon his creditors. For this purpose the questions were proper. Angell v. Rosenbury, 12 Mich., 241. Had they tended directly to connect Prentice with the fraud, there was no privilege behind which he could shield himself from answering. When discreditable facts are aside from the issue, a witness may sometimes refuse to impair his evidence by a disclosure; but when they are relevant, it is no excuse for his refusal to testify concerning them that they may exhibit him in a light that is not creditable. His dishonesty or fraud, when not criminal, may as properly be proved by him as by any other person.
It is said in this court that the questions were improper on cross-examination because nothing on the direct examination had been called out which the answers to them could have any tendency to qualify or explain. It is sufficient to say in reply that no such question was made below, and that the witness planted himself upon a positive and insulting refusal to answer.
2. When the defense took the case an offer was made to show that defendant had made public sale of the liquors, or of some part of them, -after taking unusual pains to give notice of the sale to those who would be likely to become bidders, and that at such sale they brought only certain sums. The object was to show what was the market value of the liquors. As bearing upon this inquiry the evidence was competent, and it was erroneously rejected. Smith v. Mitchell, 12 Mich., 180.
8. The plaintiff was allowed to inquire of the defendant when giving his evidence whether he was indemnified in making levy on the liquors, and if so, by whom. No reason is suggested for this ruling, and none occurs to us. The fact had no relevancy whatever.
4. Objections are taken to the charge of the court, but although the meaning is ■ blindly expressed in some particulars, we find no error of law in it.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Cooley, J.
Did tbe circuit court err in deciding that the administrator was not entitled as matter of law to be allowed the $150 paid to the widow for the release of her right of dower in the lands sold by him? If not, we cannot review its conclusion.
The land was sold by the administrator under a regular license granted by the probate court, and was bid off for $1000. The report of his proceedings shows a sale for that sum, and nothing was said in it about the widow’s right of dower. The sale could not embrace the dower interest, for that did not constitute any part of the estate. On the face of the transaction, then, the administrator was chargeable with the whole sum reported as received by him.
It.appears, however, that before he could effectuate a sale, it became necessary for the administrator to give the purchaser a verbal promise to relieve the land of the widow’s dower, and that he was compelled to pay $150 to obtain a release. This arrangement was one the statute does not empower the administrator to make. In making it he took all risks upon himself: one of which was that parties interested in the estate would insist upon his accounting for the whole purchase price. It is probable that, as matter of equity, they ought in this instance to have recognized the payment he made as one that was beneficial to themselves, and saved him harmless in making it; but if they decide to plant themselves on legal grounds, we cannot help him. He was an officer of the law, and the only course he -could take and be protected in, was the course the law provided. The purchaser bought the interest of the estate, for he could buy no more, and the oral arrangement which the administrator honorably carried out, had no legal force whatever.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
Hill sued Goodrich in March, 1876, to recover certain moneys Goodrich had previously received on a mortgage transferred, to him by Hill in January, 1870. The case was tried by the court and judgment entered for defendant on a special finding of facts. The question of importance was whether the transfer was absolute, or simply as security for demands Goodrich held against Hill. Goodrich insisted it was absolute; and Hill that it was only as security for said demands, and that Goodrich received upon the mortgage a large surplus and refused to account for it.
Hill produced a paper signed by Goodrich, and bearing date on the same day as the assignment, which provided in terms that the assignment should only be absolute in case Hill should, fail to pay certain notes within some three days, but Goodrich claimed that the transaction remained open during this time and was then closed on an understanding that this paper was suppressed, and that the assignment was absolute.
The final issue was of course upon the actual ownership ' of the money derived from the mortgage, but its fate largely depended upon whether this paper produced by Hill was .left in force as a part of the transaction or was superseded and rendered nugatory. The disagreement of the parties was very positive, and a proper explanation of the case required an inquiry as to the nature and amount of the consideration for the assignment and an examination of the surrounding facts, and of such conduct of the parties as would conduce to show whether they regarded the transfer as absolute or otherwise. The plaintiff gave some important evidence of this kind. One portion, though objected to, seems to have been received without exception. The testimony elicited from Goodrich by questions which were objected to was not improper. It went to show what the consideration of the assignment was and to unfold the entire transaction from end to end. No rule of evidence was infringed. This is manifest from our own decisions. Fuller v. Parrish, 3 Mich., 211; Bowker v. Johnson, 17 Mich., 42; Cornell v. Hall, 22 Mich., 377; Seaman v. O'Hara, 29 Mich., 66; Sirrine v. Briggs, 31 Mich., 443; Trevidick v. Mumford, id., 467.
The letters objected to were admissible. They proved that Hill was trying to buy the mortgage of Goodrich more than two years after the assignment. This was certainly very strong evidence that he considered Goodrich to be the owner, and that the security was not held subject to his right to redeem.
The finding is conclusive against Hill. It decides that the transfer was absolute and of course negatives his right to claim any of the proceeds of the mortgage. And the evidence in the bill of exceptions would seem to fully justify the finding.
There is nothing in the case to warrant particular discussion.
The judgment should be affirmed with costs.
The other Justices concurred. | [
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Marston, J.
' Suit was brought to recover the amount claimed to be due March 1st, 1877, upon an installment note given February 17th, 1875, by Tost to the insurance company for a policy of insurance issued on that day. Judgment was recovered upon the note by the insurance company in justice’s court which, upon certiorari to the circuit, was affirmed. The case comes here upon error.
The facts were agreed upon, and are as follows:
First. The plaintiff is an insurance company, organized under the laws of the_ State of Illinois, and now existing and doing business in that State. _
_ Second. In 1870 this company came into the State of Michigan and duly received .certificates of authority to do business in this State, which were renewed from year to year, the last being issued in 1876.
On the l4th day of February, 1876, the Commissioner of Insurance cancelled said certificate and revoked the authority of said company to do business in this State, from which time the company have not had any authority, and still have no authority, to do business in this State, and no policies have been issued since the time of said cancellation.
Thirdí Said defendant Charles S. Yost is a resident of the township of Huron, Wayne county, Michigan, and has resided there continually for more than ten years last past.
Fourth. On February 17th, 1875, one Peter Lewis, one of plaintiff’s agents, called upon said defendant at his said residence and solicited him to insure with the plaintiff, and it was finally then and there contracted and agreed by and between said plaintiff, acting by its said agent, and said Yost, as follows:
The company by a policy of insurance in the usual form, insured certain building of the said Yost in the sum of $300 for five years from that date. It was provided among other things in the policy that in case said Yost should fail to pay the installments mentioned in the hereinafter described note within thirty days after the same should become due, then said policy should be void during the continuance of such default, but upon payment of the amount due upon said note the policy should revive and be again in full force.
And in consideration of said insurance, said Yost paid the said company $1.50 in cash, and gave them his note for the payment of the balance of the premium, as the same should become due, a copy of which note is hereto annexed, marked exhibit “A,” and made a part hereof.
Fifth. Defendant regularly paid the installments due on said note up to February 14th, 1876, since which time no payments have been made thereon.
exhibit '“1.”
“For value received in policy 199,847, dated the 17th day of February, 1875, issued by the American Insurance Company, Chicago, Illinois, I promise to pay said company the sum of one dollar and fifty cents on the first day of March, 1876, and one dollar and fifty cents on the first day of March, 1877, and one dollar and fifty cents on the first day of -March, 1878, and one dollar and fifty cents on the first day of March, 1879, without interest and without any relief whatever from valuation or appraisement laws.
Charles S. Yost.”
The policy of insurance, and the note upon which this action was brought, constituted but one transaction, and must therefore be considered together. The promise or agreement made by the insurance company was contained or set forth in the policy, while that of Yost appeared in the note.
The agreement in the policy as to the time it should continue in force and be operative, was materially different from that usually found in time policies. Whether this policy contained the usual clause, giving the company the right to cancel it upon notice at any time on returning the unearned premium, or not, does not appear, nor is it material in this case. The policy when first issued was not an unconditional five years policy, — one which would remain in force for. that length of time unless sooner cancelled on account of some change in the situation of the property, or' otherwise. At the expiration of the first year, or within thirty days thereafter, according to its express terms, it became void, ceased to have any force or validity whatever: — not for a day, a month or a year, but indefinitely, — for all time. At the expiration of the period mentioned, without any act of either party, by force alone of its own provisions, it became void. In case of a destruction by fire of the property described therein, thereafter, the company would be under no obligation, legal or equitable, to pay the amount or any part thereof, nor could they under such circumstances call upon the insured for installments accruing or becoming due on his note thereafter.
The insured, however, after the policy should become void, had the right to step in, pay another installment upon this note, and thus revive and bring again into full force the policy, not however for the unexpired portion of the five years, nor even for one year from the date of such payment, but for the unexpired portion of the year for which such payment constituted the premium. So this policy might each returning year come to an end, its term of existence expire, subject however, at some uncertain future period, to again spring into life for a short time upon the happening of a contingency.
What then is the fair construction of these instruments? Was it an absolute insurance of the property for five years from the date of the policy? Clearly not. It was an absolute insurance for but one year, with the right of the insured to have it kept in force from year to year, in all not exceeding five years, by paying an annual premium thereon. The contract, thirty days after the expiration of each year, unless the premium was sooner paid, terminated, and it required a positive act of at least one of the parties to keep it in force after that date. Had it by its terms declared that upon nonpayment of an installment or of the annual premium, it should become void at the option of the company, during the default, it would perhaps be somewhat different, but such is not this case.
It is certain but for one year; beyond that it is uncertain and contingent. It is an insurance of the property for one year, which may be continued and kept in force from year to year thereafter, on paying an annual premium, not exceeding in all a period of five years from the date thereof.
The action in this case was commenced some seven months or upwards after the time it is claimed the installment was due and payable. During all that time there can be no doubt but that the company would not have been liable in ease of a loss.
Assuming what perhaps might admit of doubt, that the commencement of the action would operate as a revivor of the policy, it would then remain in force for the unexpired portion of that year, and thirty days thereafter, but no longer, unless the next installment was paid.
Under such circumstances the company would recover the full installment with interest thereon, being the full premium (with interest thereon) for one year, yet the insured during the same period would have had but six months protection. Let us carry it farther. Suppose the company had not commenced this action until eleven months and twenty-nine days after the installment became due. The right to recover would be the same; the recovery would be for the full amount, with interest for the delay; yet during the entire period of default there was no corresponding risk, as the policy by its terms was void.
Why, indeed, could not the company wait until all the installments become due, then sue for and recover the amount thereof, with interest,- and thus avoid all risk, as during the entire default the policy would have been void?
If it can maintain this action, I see no reason why it could not the other. Such clearly could not have been the intention of the parties.
The company declared by its policy what the effect of a default should be. It also gave the insured the right to come in and have the policy revived, and in my opinion it has no other remedy. It is optional with the insured to pay or not. If the' installments as they became due were for earned premiums, the ease would be very different; but they are not. This contract does not contemplate that the insurance company shall have any redress for a failure by Yost to pay installments, beyond that expressed in the policy, viz.: that “ said policy should be void during the continuance of such default.” Clark v. Babcock, 23 Mich., 167; Friedland v. McNeil, 33 Mich., 43.
This policy, so far as appears by the record, did not, like that of Williams v. Ins. Co., 19 Mich., 462, contain an express stipulation that “in case the notes or obligations given for the premium, or any part thereof, be not paid at maturity, the full amount of premium shall be considered as earned,” and the policy void during the default. I am unwilling, therefore, to incorporate a clause of' like effect by permitting the company to collect the premiums at its option while avoiding all risk, as such would be the effect if its right to recover is conceded.
The judgments of the circuit and justice’s courts must be reversed with costs.
The other Justices concurred. | [
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Smith, J.
This case involves an action for money lent. Plaintiffs are George Harden and Annie Harden, his wife. The defendant is Michael Widovich. He and Mrs. Harden had been intimate for some 2 years prior to the occurrence of the matters here to be related.
George Harden, having “a feeling” about banks, kept in a trunk in his home a substantial amount of cash. Last counted by him in January of 1957, it amounted to $17,500. In April of that year he discovered that $15,000 of this sum was missing. He saw, he testified, in a dresser drawer a promissory note (which later disappeared) for such sum, which bore the signature of defendant. It was payable, his wife testified, to George and Annie O. Harden, on December 1, 1957, and bore interest at 6%. Mr. Harden called defendant immediately, that same night, and told him he “thought it was kind of bad for him to get money out of my wife without asking me for it,” to which defendant replied that he would pay it all back when it was due. At a later date, in October of 1957, Mr. Harden, in his bedroom, heard defendant talking with his wife out in the hall and being asked to sign a note. What was actually signed then is before us, not a promissory note but a crude homemade “promissory undertaking which,” the trial court commented, “both counsel refrained from dignifying with the name of promissory note.” This instrument evidences a total obligation of $18,000, additional sums having been obtained subsequently to that heretofore mentioned. The action before us is grounded upon money lent, due, demanded, and refused.
Both Mrs. Harden and Mr. Widovich had their own versions of just how the money was, or was not, obtained, and where it went, but this much is clear— that Mr. Harden had $17,500 in the trunk to start with and that the trunk was substantially emptied of money later, and not by him. The trial court believed that defendant got the money under such circumstances that it should be repaid by him, and we are not persuaded that he was in error. The testimony of the parties is, as the trial court noted, irreconcilable. We have reviewed it in detail but we are unpersuaded that, as appellant asserts, judgment for the plaintiffs was against the great weight of the evidence. There were, as we view the disgraceful situation, ample motivations for perjury on each side of the case and the trial court was in a far better position to judge the truth than we. We do not disturb the factual determination in a law case tried to the court unless the evidence clearly preponderates against the judgment of the lower court. Insealator, Inc., v. Wallace, 357 Mich 233. Here it does not.
But, defendant asserts, even if there was a loan it was “designed to promote the adulterous relationship between the parties,” which, it is urged, involved the “worst kind” of illicit cohabitation, that the consideration for the “contract” was therefore illegal, and that the court should refuse to enforce the agreement. What this argument overlooks is that plaintiff George W. Harden, described by the court as “the wronged husband in this case,” was not a party to any kind of illicit cohabitation and there is no valid reason why, in addition to the other indignities suffered by him, he should also lose his savings. The illegality of the relationship between his wife and defendant was merely collateral to the cause of action sued upon and does not bar recovery. 52 Am Jur, Torts, § 92. Cf. Van Auken v. Chicago & West Michigan R. Co., 96 Mich 307 (22 LRA 33).
The judgment is affirmed, with costs to appellee.
As we observed in Greenough v. Greenough, 354 Mich 508, 521: “Our adjudicative process is now at an end and we are asked, pursuant to the new rules, * to assume the penalizing function.”
The appellees have charged appellant with violation of Court Eule No 67 (1945), requiring the ap pellant to make a statement of facts to be presented without argument or bias and in such manner as to fairly present the same (section 2), and, in addition, to include in his appendix all parts of the record which should be considered by the Court in order fairly to judge the issues on appeal from the standpoint of both appellant and appellee (section 6). As a result of appellant’s alleged failure in these respects, appellees assert that they have been put to considerable time and expense in the preparation of an additional appendix and in correcting appellant’s statement of facts in order to make a fair presentation thereof.
We have commented in prior opinions upon this situation. Greenough v. Greenough, supra. We need not repeat the general observations there made. So far as the instant case is concerned, appellant’s contention that the judgment for the plaintiffs was against the great weight of the evidence makes it incumbent upon him to put the entire evidence before us, in order that, upon review thereof, we may apply the law applicable to the claim of error made. We do not, in some situations presented to us, of which this is one, deem it in furtherance of the judicial process that we preserve for posterity in the public records, at the taxpayers’ expense, the sordid details of a scandalous involvement. Nevertheless we cannot weigh the evidence in arriving at decision unless it is fully and fairly put before us and this is the burden of the appellant. (Court Rule No 67 [1945] . )
Our study of the appendices and the briefs demonstrates that the matter should be referred back to the trial court for investigation, recommendation and report to ns under Court Bule No 70, § 5 (1945).
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
See 347 Mieh xiv, xxii; 355 Hieh. xiv.—Reporter.
As amended. See 347 Mich. xxii.—Reporter.
As amended. See 347 Mich xxviii. See opinion on aceeptanee of report, 361 Mieli 422.—Reporter. | [
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] |
Edwards, J.
This is a suit in assumpsit to recover a commission plaintiff claims to be due under a contract to sell real estate for defendants. The trial court which heard the case without a jury held that the particular sale and interest sold were not within the contemplation of the contract, and entered judgment for defendants from which plaintiff appeals.
There are no important disputes as to the facts. The defendants-appellees, Teichmans, a father and son and their 2 wives, owned an unsubdivided tract of land consisting of 80 acres in Oakland county. The plaintiff-appellant, Ladd, was a licensed real-estate broker and a land developer. The parties entered into a written agreement for Ladd to subdivide and develop the Teichman property and sell it in parcels, with the Teichmans hearing the development expense and Ladd receiving a commission of 25 °¡o of each sale price.
The relevant portions of the contract follow:
“Whereas parties of the first part desire to subdivide said property and desire that said second party shall look after the details of subdividing said property and promote the sale thereof, but the expenses of surveys, construction of roads, and all things incidental to subdividing of said property to be paid by parties of the first part, and
“Whereas it is the desire of the parties that the property shall be subdivided into parcels as per the attached plat, the overall price of said property when subdivided, to be not less than $160,000, and
“Whereas said party of the second part desires to promote the sale and sell said property, in accordance with the attached plat, and price list to be later approved by both parties hereto, equalling above amount, and made a part of this agreement and kept known as exhibit ‘A,’ and
“Whereas both first and second parties desire that said second party shall receive, as commission for the sale of said parcels in the subdivision, 25% of the sale price. * * *
“Now, therefore, in consideration of the mutual covenants, conditions, and stipulations to be by each of said parties performed, it is agreed and understood as follows:
“That said first parties hereby appoint said second party as its sales agent for the promotion and sale of property hereinbefore described and that said second party is to do the detail work in connection with the subdividing of the property, but all expenses of subdivision to be paid by first parties and each of said parties agree that the property shall be subdivided into parcels as per the attached plat, the overall price of said property when subdivided to be not less than $160,000, in accordance with the attached plat, and a price list to be later approved by both parties hereto, equalling the above amount and made a part of this agreement and kept known as exhibit ‘A,’ and
“It is further agreed that second party is to do everything necessary to prepare said property, as hereinbefore described, for the purpose of marketing same in parcels as per the attached plat, and shall have a plat prepared and obtain the approval of the proper authorities and record the plat, expenses to be borne by first parties, and present a copy of the plat together with a price list to first parties, to be approved by first parties, which price list shall be the basis of all selling and shall be marked exhibit ‘A’ and attached to this agreement.
“It is further agreed that second party shall have exclusive sale of this property until the 31st day of December, 1957.”
Subsequent to tbe execution of tbe contract above, and during the period of appellant’s “exclusive sale” rights, the Detroit Edison Company approached the owners concerning a right-of-way for a power “high line” over the property in question. Defendant William Teichman referred the matter to appellant:
“Dk. William A. Teichman
15319 Wyoming Avenue
Detroit 38, Michigan
“September 21, 1956
“Mr. B. F. Wagner
Detroit Edison Company
Room 858 Gf.O.
2000 Second Avenue
Detroit 26, Michigan
“Dear Mr. Wagner:
“I have turned the property settlement claim adjustment over to Mr. L. C. Ladd of the Ladd Realty Company in Royal Oak, Michigan.
“Will you please contact Mr. L. C. Ladd to arrange a meeting for a Thursday so that I may be present also.
“Thanking you for your cooperation, I am
“Very truly yours,
“WAT :hp “William A. Teichman”
Subsequently plaintiff negotiated with the Edison representatives and participated in several conferences between them and William Teichman representing the owners. On July 13, 1957, defendantsappellees granted Detroit Edison an easement for its “high line” over 7 of the lots in the subdivision. The easement, in addition to being a right-of-way, also gave Edison the right to cut trees and brush on the 7 lots, and required its prior approval of the construction of any buildings thereon. The Teichmans received $17,500 for the easement. They declined to pay Ladd any commission. In discus sion of this latter topic, Ladd prepared an amendment to the sales agreement by which his commission would have been reduced to approximately 10%. On the Teichmans’ refusal to sign this, Ladd filed the instant suit for the full amount claimed due under the original contract.
The trial judge, relying on Johnson v. Sirret, 153 NY 51 (46 NE 1035), held that the sale of an easement was not the sale of a “parcel” under the contract. Further, he held that the contract created an “exclusive agency” but that where the owner produced and negotiated the sale, the agent was not entitled to a commission. In this regard, he relied on Crawford v. Cicotte, 186 Mich 269, and McOmber v. Campion, 219 Mich 604.
We agree with appellees that appellant having drafted the contract, any ambiguity contained in it must be construed against him. Bonney v. Citizens’ Mutual Automobile Ins. Co., 333 Mich 435; Veenstra v. Associated Broadcasting Corporation, 321 Mich 679. We do not, however, find this contract unclear.
It seems likely, from its wording and from the circumstances of its negotiation, that the parties did not contemplate the exact sort of sale which the Edison Company easement represented.
Even so, however, we find it impossible to agree with the trial judge in holding that plaintiff was not entitled to recover a commission under the contract.
The unambiguous language of the contract gave plaintiff the “exclusive sale of this property until the 31st day of December, 1957.”
This language appears to grant an exclusive right to sell for a specific period of time, rather than an exclusive agency as held by the trial judge. And appellant suggests that this disposes of the matter.
We do not find Michigan precedents (or those of onr sister States) as clear on this point as is suggested.
Most Michigan real-estate commission disputes have revolved around whether the agent was the producing cause of the sale. Eecovery of the commission was allowed on an affirmative finding in Davis-Fisher Co. v. Hall, 182 Mich 574 (LRA 1915A, 1224), and Advance Realty Co. v. Spanos, 348 Mich 464. Where the broker was held not to have produced the sale, recovery was denied in Crawford v. Cicotte, supra, and Pittelkow v. Jefferson Park Land Co., Ltd., 283 Mich 374.
Where the broker was not the producing cause of the sale made but had performed in accordance with his contract, he was held entitled to his commission in McOmber v. Campion, supra and Gonte v. Rosenberg, 221 Mich 283.
In McOmber, supra, p 608, quoting a Wisconsin case, the Court recognized the right of an owner to sell without paying commission in spite of an exclusive agency contract:
“ ‘It is well settled that the giving of an exclusive agency to sell real estate does not preclude the owner from selling within the life of the contract to one who he has reason to believe has not been procured by the agent.’ Roberts v. Harrington, 168 Wis 217, 218 (169 NW 603, 10 ALR 810).”
But in 2 cases where the language of the agreement granted what we construe to be exclusive sale rights for a specified period and there was specific language which purported to assure a commission to the broker even if the owner made an unassisted sale, the broker was allowed to recover after the owner sold. Axe v. Tolbert, 179 Mich 556; DeBoer v. Geib, 255 Mich 542. Even as to these last 2 cases, however, there was either claim or recital of consideration on the part of the broker.
None of these caes is squarely in point as to our present situation, but they help to illustrate the preoccupation of the Michigan Court with the question of consideration as it relates to a claim for commission under a contract to sell real estate.
In other States, the courts are divided as to the right to commission on an unassisted owner sale under an exclusive right to sell provision in a contract to sell real estate. There is substantial authority for recovery: Harris v. McPherson, 97 Conn 164 (115 A 723, 24 ALR 1530); Jones v. Hollander, 3 NJM 973 (130 A 451); 8 Am Jur, Brokers, § 57, p 1015. There is also substantial authority against: South Florida Farms Co. v. Stevenson, 84 Fla 235 (93 So 247); Beck v. Howard, 43 SD 179 (178 NW 579); 64 ALR 410.
Where, however, recovery has been granted, it has generally been where there was proof of consideration for the contract in performance by the real-estate agent. Where it has been denied, the courts appear to have been influenced by want of any such proof. In this latter instance, the contract has been regarded as unilateral and subject to revocation. See Harry H. Rosin Co. v. Eksterowicz, 45 Del 314 (73 A2d 648); 2 Restatement, Agency 2d, § 449.
The supreme court of Ohio, dealing with a contract to sell real estate, containing an exclusive right to sell provision, said:
“Although the reasoning is not always the same, most of the cases dealing with the subject hold that where a real-estate agent, under the type of instrument involved in the instant case, has expended time, effort or money in attempting to secure a purchaser for the property, the consideration is supplied to make a binding and enforceable contract. Hughes v. Bickley, 205 Ala 619 (89 So 33); Kimmell v. Skelly, 130 Cal 555 (62 P 1067); Hayes v. Clark, 95 Conn 510 (111 A 781); Harris v. McPherson, 97 Conn 164 (115 A 723, 24 ALR 1530); Lapham v. Flint, 86 Minn 376 (90 NW 780); Confer Bros., Inc., v. Colbrath, 149 Minn 259 (183 NW 524); Jones v. Hollander, 3 NJM 973 (130 A 451); Morris v. Bragg, 155 Va 912 (156 SE 381); Gunning v. Muller, 118 Wash 685 (204 P 779); Greene v. Minn Billiard Co., 170 Wis 597 (176 NW 239). Compare, 1 Restatement of Contracts, p 53, § 45.
“If service only is contracted for and such service is performed, the necessary consideration is furnished to support the contract, irrespective of results. Gonte v. Rosenberg, 221 Mich 283, 288.” Bell v. Dimmerling, 149 Ohio St 165, 171, 172 (78 NE2d 49, 52).
The reasoning of tile Ohio court is very similar to that of Mr. Justice Steers in the earlier Michigan case of Axe v. Tolbert, supra.
Thus it appears that where a contract to sell real estate contains a provision for exclusive sale rights and a reasonable time limit, and the broker is able to show substantial performance of the duties imposed upon him by the contract (even though he does not produce a buyer), when the owner makes the sale within the contract dates, the contract is held to be enforceable and the broker entitled to Ms commission.
Against this statement of legal principles, our present case becomes simple to resolve. "We deal here with a contract to sell real estate containing a specified time for performance, reciting in detail the duties of the broker under the contract and granting him an exclusive right to sell.
The sale occurred within the effective dates of the contract, prior to any revocation, and before any attempt at rescission. The trial record discloses that this sale occurred after plaintiff had entered upon performance of his duties under the contract pertaining to surveying, supervising road construction, drawing restrictions, and preparing the plat of the subdivision.
Moreover, the facts in our instant record disclose that the plaintiff actively participated in this particular sale. On Detroit Edison’s first approach, defendants referred its representatives to plaintiff, and he sat in on the discussions which led up to the sale of the easement.
It is also clear from this record that the easement to Detroit Edison was given by all of the owner defendants, and that, if the broker is denied commission, this sale substantially and adversely affects the total amount of compensation which plaintiff otherwise stands to gain under the contract.
All of these facts serve to distinguish this case markedly from the factual situation in Johnson v. Sirret, supra, relied upon by appellees and the trial judge.
Although appellees present no issue as to this matter, we have also considered the fact that the Edison sale was not one which required the development services which appellant was obligated to furnish under the contract, and hence that it might be argued that the commission set by the contract was excessive. Reading the contract as a whole, however, we find no indication that the Edison sale will tend to reduce appellant’s duties or result in a windfall increase in his compensation. The most which may he said is that appellant, like the appellees, might have received the compensation contemplated somewhat in advance of contract expectations.
We believe that there was ample consideration shown to make this an enforceable contract, and that plaintiff became entitled to the commission provided by the contract when the Edison sale was completed.
Nor do we agree that the contract term of “parcel” excludes the easement with which we deal here. An easement is a property right in real estate. It can be, as here, a valuable one. “Parcel” is a generic term capable of many definitions. In Chicago, M. & St. P. R. Co. v. Town of Churdan, 196 Iowa 1057 (195 NW 996), “parcel” was held to be applicable to a railroad right-of-way. In Martin v. Cole, 38 Iowa 141, “parcel” was held to apply to a section of land. In Rose v. Mesmer, 142 Cal 322 (75 P 905), “parcel of the land” was held to refer to water rights.
Webster’s New International Dictionary (2d ed), p 1775, defines “parcel” as “a part,” a “portion,” and 3 Bouvier’s Law Dictionary (Rawle’s 3d Rev), p 2445, includes in its definition of “parcel,” “part of an estate.” To restrict the meaning of “parcel” to include only those portions of the tract which were sold in fee would make it possible for the owner to avoid the contract entirely.
In the context of this contract, we believe the easement was a “parcel” of the land affected.
Reversed for entry of judgment for appellant. Costs to appellant.
Dethmers, C. J., and Care, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred.
“Unilateral contract of employment. Although the principal agrees that the agent is to have an exclusive agency or an exclusive power of sale, the principal is not subject to liability to the agent for competing with the agent in violation of his promise unless the principal contracts to employ the agent and the contract is for some period of time either definitely specified or terminating at the end of a reasonable time; if there is no consideration for the principal’s promise, or if it is agreed that the employment is terminable at the will of the principal, the principal is privileged to act with respect to the subject matter as he pleases, subject to the rule stated in section 454, that the principal must not unfairly terminate the agent’s authority in order to take advantage of his efforts.
“In the ordinary listing of property with a real estate broker, the broker’s promises to use his best efforts or other similarly indefinite promises are not, without other facts, sufficient to indicate that consideration has been given.” | [
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] |
Kavanagh, J.
This is a class action brought by plaintiffs for a declaratory judgment construing several sections of the charter of the city of Detroit These sections refer to the policemen and firemen retirement system. The plaintiffs are widows and beneficiaries of policemen and firemen killed in the performance of duty or receiving injuries resulting in death prior to July 1, 1941. Those plaintiffs who are widows and beneficiaries of firemen receive $100 per month pensions pursuant to section 16, chapter 15, title 4, of the charter, and those plaintiffs who are widows and beneficiaries of policemen receive a like amount pursuant to section 19, chapter 21, title 4, of the charter.
Prior to a charter amendment made November 5, 1940, to be effective July 1, 1941, by chapter 7, title 9, of the charter, the provisions with reference to pensions and retirement and death benefits were under separate sections of the charter. The 1940 amendment provided a new joint plan for policemen and firemen including increased benefits, without disturbing the old plans. The new plan covered all policemen and firemen in service on the effective date of the act, which date was July 1, 1941, except those who had 20 or more years of service in either department. Any member who had 20 or more years of service was excluded, unless he filed with the board a written election to become a member of the new system. If he did not so elect, he retained for himself, wife, children, dependent mother, and dependent sister all rights and privileges provided by chapters 15 and 21 of title 4 of the charter, commonly referred to as the “old system.” Plaintiffs’ husbands were never members of this new system, since their husbands died prior to the effective date of the new system. Plaintiffs seek to have the benefits of the new system applied to the so-called old plans under chapters 15 and 21.
The trial court found as a fact that the city of Detroit had had considerable trouble with the firemen and policemen pension programs. The difficulty was one of attempting to keep them financially sound. The attempt to correct these difficulties brought into being the new system. The trial court further found that although it would have been legally possible for the city of Detroit to have granted increased benefits to the plaintiffs herein, the city had intentionally failed to do so and, by appropriate language, had excluded them from the new system.
■ Plaintiffs appeal, claiming the trial court erred in finding that the amendments to the charter excluded plaintiffs from receiving the increased pension benefits provided by the 1940 amendment. Plaintiffs further claim that if the 1940 charter amendment be construed as denying widows whose husbands lost their lives in line of duty before July 1, 1941, the pension benefits therein allowed the widows whose husbands lost their lives after July 1, 1941, the amendment would be unconstitutional in that it discriminates between similarly situated members of the same class.
The trial court, in reviewing the history with reference to the amendment of the charter and the pro ceedings before the common council, noted that 2 propositions had been submitted, one that would include the plaintiffs and one that would not. The one that would not include the plaintiffs was eventually submitted to the people, and adopted. The trial court concluded from this and other facts in the record that the common council was well acquainted with the needs of the plaintiff widows and that the specific provision that they might not enjoy the benefits of the increase under the new system was not inadvertent, but intentional. Since they were under consideration, the failure to mention them taken together with the language of article 4, § 1, and article 9, § 5, of chapter 7, title 9, is strong evidence of an intention to continue benefits to these plaintiff widows only under the old system.
To arrive at a proper understanding of the problem, it is necessary to review several sections of the charter:
“Title 9
“Chapter 7
“Article 2
“Sec. 4. ‘Member’ shall mean any policeman or fireman included in the membership of the system as provided in article 4, § 1, of this amendment. * * *
“Sec. 11. ‘Beneficiary’ shall mean any person in receipt of a pension, an annuity, a retirement allowance, or other benefit provided by the system. * * *
“Article 4
“Sec. 1. The membership of the system shall consist of the following:
“(a) All policemen and firemen as defined in sections 2 and 3 of article 2 of this amendment who are in service on the effective date of this amendment, provided, however, that any policeman or fireman who, on or before the effective date hereof, shall have been in the employ of the police or fire department for a period of 20 years, or who shall have a total of 20 years of creditable service, shall be excluded from the provisions hereof and shall retain for himself, wife, children, dependent mother and dependent sister all rights and privileges provided by chapters 15 and 21 of title 4 of this charter, unless such policemen or firemen, on or before June 1, 1941, shall file with the city controller his written election to become a member of the system, in which event he shall be a member; such excluded policemen not electing to become members, from and after the effective date of this amendment, while they remain active members of the police department, shall pay 5 °/o of each salary payment into the fund for retired policemen, and such excluded firemen not electing to become members, from and after the effective date of this amendment, while they remain active members of the fire department, shall pay 5% of each salary payment in to the fire department pension and retirement fund, and such salary contributions shall hereafter be used toward the payments of retirement allowances provided for under chapter 15, § 14, subsections (1), (2), and (3) thereof. On retirement, the contributions of such excluded members shall cease.
“(b) All persons who become policemen or firemen on or after the effective date of this amendment and who are confirmed as policemen or firemen according to the rules and regulations of the respective departments shall thereupon become members of the system; subject however, to the following provisions:
“1. Any person who shall become a policeman or fireman at an attained age of 31 years or more may become a member of the system only by vote of the board of trustees who shall fix the rate of contribution of such member on a basis recommended by the actuary for the attained age of such member.
“2. Any appointive official of the police department or fire department appointed from the membership thereof shall be permitted to remain a member of the system, paying contributions and entitled to benefits as though he had remained in the rank, grade or position held at the date of his appointment.
“3. Any policeman or fireman who, prior to being confirmed, shall be killed or totally incapacitated as the result of the performance of active duty, shall be deemed to have been a member of the system.
“(c) Any member who shall be transferred to a civilian position in his department may retain his rights as a member, subject to all the obligations of a member.”
“Article 9
“Sec. 5. No other provision of law, charter or ordinance, which provides wholly or partly at the expense of the city for pensions or retirement benefits for policemen or firemen, their widows, or other dependents, shall apply to members or beneficiaries of the system established by this amendment, their widows, or other dependents.
“(a) All provisions of laws, inconsistent with the provisions of this amendment, are hereby repealed to the extent of such inconsistency.
“(b) This amendment shall not apply to any person who, at the effective date of this amendment shall be receiving a pension or other benefit, from the city under the provisions of chapter 15 or 21 of title 4 of this charter, or who is excluded from membership in this system as provided by article 4, section 1(a) of this amendment.”
Widows’ pensions for policemen who were killed or injured prior to July 1, 1941, are found in title 4, chapter 21, § 19, which reads as follows:
“Sec. 19. Whenever any member shall be killed or die from the effect of injuries received while in the performance of duty, the widow and children, if any, or the children if there is no widow, or the dependent mother if there is no widow or children, or the dependent sister if there is no widow, children, or dependent mother, of any member who has been killed or has died, since October 1, 1924, from the effect of injuries received while in the performance of duty, shall by vote of the police pension committee herein provided be paid a pension. The widow, dependent mother, or dependent sister, as the case may be, shall receive the sum of $100 per month during the term of her natural life, or until she remarries, in which case all payment of moneys under this charter to such widow, dependent mother, or dependent sister shall cease. If there be a widow and child or children, there shall be paid in addition to pension granted said widow, the sum of $20 per month for each such child under the age of 16 years, which amount shall continue to be paid on account of each such child until it shall reach the age of 16 years, unless such widow shall die or remarry, in which case, or in case such deceased person shall leave no widow, but shall leave 1 or more children, there shall be paid to the person responsible for the care of each such child as shall be under the age of 16 years, the sum of $40 per month. Such payments shall be made monthly, shall continue on account of each such child until it shall have attained the age of 16 years, and shall be made in the manner herein provided. Any pension heretofore authorized shall hereafter be paid in accordance with the provisions of this section.”
Widows’ pensions for firemen who were killed or injured prior to July 1, 1941, are found in title 4, chapter 15, § 16, which reads as follows:
“Sec. 16. In case any person, a confirmed member of the fire department or an employee, shall be killed while in the discharge of his duties, or shall receive injuries which result in his death, since October 1, 1924, the widow first, or, if there be no widow, then the mother of such person, if dependent upon him for support, or, if there be no widow or dependent mother, then the sister of such person, if dependent upon him for support, shall, by vote of the fire department pension committee, be paid a pension.Tbe widow,-dependent mother, or dependent sister, as the case may be, shall receive the sum of $100 per month during the term of her natural life, or until she remarries, in which case all payment ;of moneys under this charter to such widow, dependent mother, or dependent sister shall cease. If there be a widow and á child, or children, there shall be paid in addition to the pension granted said widow, the sum of $20 per month for each such child under the age of 16 years, which amount shall continue to be paid on account of each such child, until it shall reach the age of 16 years, unless such widow shall die or remarry, in which case, or in case such deceased person shall leave no widow, but shall leave 1 or more children, there shall be paid to the person responsible for the care of each such child as shall be under the age of 16 years, the sum of $40 per month. Any pension heretofore authorized shall hereafter be paid in accordance with the provisions of this section. Provided, however, that nothing shall be due hereunder except in consideration of a waiver of, and in lieu of any provisions of the ‘workmen’s compensation act,’ so-called; and provided further, that to or on account of any beneficiary hereunder who resides in any foreign country, payments of but 1/2 of the sums herein mentioned shall be made.”
Plaintiff widows contend title 9, chapter 7, article 9, § 5, subd (b), is ambiguous and must be read in conjunction with article 4, § 1, which provides that policemen and firemen with 20 years or more of service have a right of election whether to become members of the new system or to remain under the old system. Certain policemen and firemen with long years of service would receive greater benefits under the old system than under the new one. Likewise, this was true of their widows in the event of their election. Therefore, the widows contend that living firemen and policemen in service on July 1, 1941, liad a right to elect to come under the old system and thereby to preserve their rights and benefits to themselves as well as to their widows. Plaintiff widows, however, contend, their husbands having died before July 1, 1941, no right of election could possibly accrue to them and that, therefore, they automatically receive the benefits and increases of the new system since they were made a part of it. Simply stated, they contend the only ones excluded were the widows of policemen and firemen who died after July 1, 1941, and after their husbands had elected to remain under the old system. Despite these contentions, consideration must be given to the language of section 5 of article 9 of the amendment, which provides:
“All provisions of laws inconsistent with the provisions of this amendment, are hereby repealed to the extent of such inconsistency.”
The provisions of section 16 of chapter 15 and section 19 of chapter 21, title 4, of the charter under which plaintiff widows are now receiving pensions are on their face inconsistent with the provisions of title 9, chapter 7, article 6, part D, through which widows who became such after the passage of the amendment received increased benefits. All of the funds provided for payment of pensions in chapters 15 and 21 of title 4 (old system) are diverted either into retirement benefits for those members already retired or who were retiring under sections 14 and 23 of chapters 15 and 21 of title 4, or are diverted into the pension reserve fund. This results in widows’ pensions becoming the direct obligation of the city under chapter 7, title 9 (new provision of charter), which would appear to be inconsistent with section 16 of chapter 15 and section 19 of chapter 21, title 4 (old system).
Article 4, § 1(a), included all policemen and firemen in service on the effective date of the amendment within membership of the new system, specifically excluding all policemen and firemen having 20 years or more of service, unless such persons had expressly filed a written election to become members of the new system. Any excluded person retained “for himself, wife, children, dependent mother, and dependent sister all rights and privileges provided by chapters 15 and 21 of title 4.”
Article 6, part D, of title 9, chapter 7, amended section 16, chapter 15, and section 19, chapter 21, with relation to death benefits for widows and children of members who come under the new system.-
No question has been raised that any of plaintiffs’ husbands were ever members of this new system, chapter 7, title 9, but plaintiffs seek to have the benefits of the new system apply when their husbands’ rights and privileges' were to be determined under chapters 15 and 21 of the so-called old plans.
As to those excluded policemen who did not come under the new system, article 4 provided that they were to pay 5% of their salaries into the fund for retired policemen, which is section 23, chapter 21 of title 4, and which has no provision for widows’ pensions, but only relates to retirement benefits for policemen. This, it should be noted, is a fund exclusively for policemen.
As to excluded firemen, provision was made that they were to pay 5% of their salaries into the fire department pension and retirement fund, which is section 14, chapter 15 of title 4, to be used exclusively for retirement benefits without relation to widows.
Article 4 attempted to include certain members in the 1940 amendment benefits but, at the same time, it excluded certain members. It allowed them to retain benefits under-section 14, chapter 15 and section 23, chapter 21 of title 4, and required them to pay 5-%'^£ their salary into a fund.-for retirement benefits- from which widows are excluded. '
We think the trial court was correct in holding that the language of the charter amendment clearly showed an intent to exclude the plaintiff widows from the increased benefits provided under the 1940 amendment. ■
The remaining question is whether such exclusion makes the amendment unconstitutional. All widows of policemen and firemen whose husbands were members of the new policemen and firemen retirement system at date of death or retirement are in one class and subject to the new-provisions for-bene.fits. All widows prior to the amendment are in another class.. This Court has many times held that legislation is not unconstitutional because it is legislation of a particular kind or character, or because it benefits a particular class, so long as the law operates equally upon those within the particular class. In re Phillips, 305 Mich 636; Lake Shore Coach Lines, Inc., v. Secretary of State, 327 Mich 146; People’s Appliance, Inc., v. City of Flint, 358 Mich 34. This amendment includes all within the respective classes; consequently, it is not arbitrary or unreasonable. The legislative body in its wisdom determines who shall receive benefits. In this instance it chose to exclude plaintiffs. This Court cannot and will not question its reasons unless they appear to be palpably arbitrary or unreasonable. Ver Hoven Woodward Chevrolet, Inc., v. Dunkirk, 351 Mich 190; Metropolitan Funeral System Association v. Commissioner of Insurance, 331 Mich 185.
The judgment of the lower court is affirmed. A public question being involved, no costs are allowed.
Dethmers, C. J., and Carr, Kelly, and Edwards, JJ., concurred with Kavanagh, J.
For these, and other charter provisions referred to, see Municipal Code (1954), City of Detroit, charter section, particularly pp 89, 91, 114, 115, 244, 249, 254, 263—Reporter. | [
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] |
Smith, J.
In this case we consider the continuation of a nonconforming use. Specifically, the property is a trailer park in the city of Madison Heights. Under the zoning ordinances of the city the area in which the trailer park is located is classified as resi-, dential 1-family dwelling. The defendants’ use, it is agreed, is nonconforming.
The controversy arises over the sewage disposal for the park. No public sewers being available, the park has for years relied upon a septic tank, tile field system. The park had experienced problems with sewage disposal and general drainage since 1951.
Shortly after defendants Manto purchased this park (in June of 1956) the services of a sanitary engineer were engaged to prepare plans for “correcting and improving the sewage disposal facilities.” The first plan called for a new sand bed under a covered structure. This was amended because of its probable expense. The next plan was to enlarge and relocate the tile field in the northeast corner of the park. This was presented to the proper authorities for approval about the time a new sewer bond issue was under consideration and some discussion was had about the desirability of tying the park sewage system in with the proposed public sewer. It soon developed, however, that the new construction was not in the immediate future. Consequently a plan was prepared by the engineers to “tide over” the park until the proposed public sewer came into existence, as well as a plan for ultimate connection with the proposed new sewer. As a part of the overall project under consideration the defendants entered into an agreement with the State as follows:
“State ok Michigan
“Department ok Health
“Agreement
“Whereas William Manto, Jr., as owner has made application for a 1958 trailer coach’park license for the Madison Heights Trailer Park located at 858 West Girard avenue, Madison Heights, Michigan, an existing trailer coach park previously licensed for 30 trailers; and
“Whereas said Madison Heights Trailer Park has an inadequate sewage disposal system, correction of which is immediately necessary for the protection of the public health;
“Now therefore in consideration of the issuance of the license applied for, I hereby agree for myself, successors and assigns that I will (1) on or before 30 days from the date of the issuance of the license, install a 2,000-gallon overflow tank in accordance with the plans attached hereto; (2) cause the contents of said tank to be removed whenever necessary and before overflow sha]¿ occur, said contents to be disposed of in conformity with the provisions of PA 1951, No 243 (CLS 1956, § 325.281 et seq., as amended by PA 1957, No 42 [Stat Ann 1956 Eev and Stat Ann 1959 Cum Supp § 14.434(1) et seg.]); (3) take any and all other steps which are or may become necessary to prevent sewage-contaminated water from said sewage disposal system from flowing to the surface of the ground or in any way constituting a public health hazard or nuisance.
“I further agree that as soon as reasonably possible after the completion of a trunk sewer by the city of Madison Heights along Stephenson highway adjacent to the said trailer coach park, or upon any other public sewer to which connection may be made becoming available, I will reconstruct the sewage disposal system for said trailer coach park in accordance with plans heretofore filed with the State health commissioner, or such changes therein as may be approved by the.State health commissioner, and will connect same to the public sewer.
“Madison Heights Trailer Park
“By: /S/ William Manto, Jr.
“William Manto, Jr., Owner
“7508 Varjo
“Detroit 12, Michigan.”
It was the testimony of Mr. Robert Coleman, assistant director of sanitation for Oakland county, that the agreement with the State (above quoted) has been complied with (in fact that “the operation of this trailer park could not have been continued in a sanitary manner without the installation” of such equipment). What is before us is the city’s effort to enjoin defendants “from installing any further equipment in or upon said premises contrary to the spirit and intent of the zoning ordinance of the city of Madison Heights.” What the city is aiming at in this language is to stop the defendants’ completion of its plan in defendants’ exhibit A. The defendants filed a cross-bill praying that the city be enjoined “from prosecuting * * * sundry violation tickets relating to the premises,” that the plans for redesign and modernization of the park be approved by the court and the plaintiffs be ordered to approve the same, and that the use of the park by as many as 30 trailers be decreed a valid nonconforming use. The trial chancellor, upon proofs, denied the prayer of the bill of complaint, granted the cross-bill, and so decreed. The city appeals.
This is the city’s position on appeal: It is the policy of the State, it says, and of the community, that there shall be the gradual elimination of a nonconforming use, citing Cole v. City of Battle Creek, 298 Mich 98; Austin v. Older, 283 Mich 667; Paye v. City of Grosse Pointe, 279 Mich 254; and McQuillin, Municipal Corporations (3d ed), §§25-.183, 25.189, 25.205. This park, it then contends, “has deteriorated to a point where it no longer can meet competition because of its gradual obsolescence and the wearing out of its facilities [and] it should not be allowed to renew its facilities and thus enable it to expand again.”
Defendants do not dispute the law cited but insist that it has no application to the facts before the court. The park, it contends, is not unable to meet competition, but, on the contrary, is enjoying full occupancy, having been operated at or near capacity for many years, though suffering (at the time of trial) some diminution of tenancy due to the business conditions. The proofs, we will add, well sustain this contention. Defendants then go on to argue that what is sought to be done here is merely ordinary maintenance, not such construction as to amount to a change in the fundamental purpose of the premises (see Paye v. City of Grosse Pointe, supra), nor, in fact, even an “extension” of the nonconforming use (see Austin v. Older, supra).
In the context before us this is an issue of fact upon which the trial chancellor’s finding, while not conclusive upon us, is entitled to weighty considerations. Upon review of the record it is clear that septic tank, tile field systems of the type described in this record, present a constant maintenance problem. The life expectancy of such fields varies, depending upon the soil conditions: When the field “fails,” as the record puts it, a nuisance may and probably will result unless the field is relocated. What happens, in less technical language, is simply that the system wears out, or exhausts its usefulness, much as water pipes may ultimately become clogged due to impurities in the water. The relocation of such fields, or of devices to permit them to operate more efficiently, convey off or eliminate the sewage, effects in no way any change in the fundamental nature of the operation. "We note that the acreage devoted .to the project remains unchanged, as well as the number of trailer units licensed. We are in agreement with the trial chancellor that there is no more here than routine repair made necessary by deterioration. Such ordinary maintenance is within the right of the owner of property upon which there exists a nonconforming use and is not a prohibited expansion or enlargement of such use.
We are constrained to make one additional observation : It. concerns the presentation of this case to us. The court rules state that appellant shall make to this Court a clear and concise statement, in chronological form, without argument or bias, of the facts, both favorable and unfavorable, of the case, together with the remaining, matters noted in Court Rule No 67, § 2 (1945). *
If there are insufficiencies or inaccuracies in this statement it is the appellee’s duty to point them out, seriatim, with reference to the appendix in support thereof. .(Court Rule No 68, §2 [1945]. )
Of late years, however (and we observe it in the case before us), a practice has grown up that the parties submit competing statements of fact. Rather than pointing out appellant’s errors the appellee simply submits his own fact statement. The Court is then presented with the problem of putting the 2-statements, and the appendices, sometimes, in fact, the transcript, alongside each other and itself ascertaining appellant’s inaccuracies and insufficiencies. This is a laborious task for anyone, even trial counsel, it will be conceded, but the rules do not contem plate this Court’s assumption of such burden. The practice should he discontinued.
Decree affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Kayanagh, and Souris, JJ., concurred.
This exhibit is a detailed drawing of a plan approved by the State and county health departments for the improvement of the trailer park and its sanitation facilities.
Amendments in 347 Mich xxii, xxiv, leave these provisions unchanged.—Repoktek. | [
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Long, J.
October 29, 1889, tbe plaintiff issued to Rix Bros., a grocery firm doing business in Oscoda village, its policy of insurance in tbe sum of $1,000. Tbe goods insured were contained in a two-story frame warehouse, located back of tbe firm's general store, and near tbe railroad operated and used by tbe defendant in this suit. January 30, 1890, a fire occurred by wbicb tbe property so insured was destroyed, and tbe plaintiff paid Rix Bros, on tbe policy for such loss tbe sum of $866.20, and took from them tbe following assignment:
“ Subrogation.
“Be it known that tbe Continental Insurance Company of New York did insure Rix Bros., under its policy No. 311, Oscoda, Michigan, as follows: $1,000 on their stock of groceries and provisions, flour, feed, and bay, all while contained in tbe two-story frame warehouse of tbe Oscoda Boom Company, situated on block 19, village of Oscoda, Michigan.
“Further, that on tbe 30th day of January, 1890, a fire occurred by wbicb property so insured was damaged or destroyed to tbe amount of twenty-six hundred ninety-eight 62-100 dollars.
“Now, therefore, we, Rix Bros., in consideration of eight hundred sixty-six 20-100 dollars to me in band paid by the said Continental Insurance Company of New York, in full settlement of claim against said company by reason of such insurance and loss, do hereby assign, set over, transfer, and subrogate to the said Continental Insurance Company of New York all the right, claims, interest, choses, or things in action, to the extent of eight hundred sixty-six 20-100 dollars paid me as aforesaid, which I may have against the said H. M. Loud & Sons Lumber Compaq, or any other party, person, or corporation who may be liable, or hereafter adjudged liable, for the burning or destruction of said property; and I hereby authorize and empower the said Continental Insurance Company of New York to sue, compromise, or settle, in my name or otherwise, to the extent of the money paid as aforesaid; and the said insurance company is hereby substituted in my stead, and subrogated to all my rights in the premises, it being expressly stipulated that any action taken by said company shall be without charge or cost to me.
“Rix Bros.
“Per Y. E. Rix.
“Witness: Lillie Waters.”
This action is brought to recover from the defendant the moneys paid by the plaintiff to Rix Bros, for their loss, the claim being that the fire was occasioned by the use of a locomotive run and operated on defendant’s railroad. To the declaration filed' defendant pleaded the general issue. The case was tried in the circuit court for Iosco county before a jury, where plaintiff had verdict and judgment for the -amount of money paid Rix Bros.
It appears by the testimony in the case that the loss of Rix Bros, by this fire was the sum of $2,698.62; and the claim on the trial was that the defendant, by the improper construction of its engine and the careless and negligent manner in which it was used, caused sparks to be emitted which destroyed Rix Bros.’ property. It is also apparent, as shown by the record, that other insurance companies aside from the plaintiff had issued policies to Rix Bros., insuring in different amounts the property destroyed by this fire. The paper subrogating the plaintiff to all of the rights of Rix Bros, against the defendant does not purport to assign and transfer to the plaintiff all of the claim and demand of Eix Bros, against the defendant for the loss .sustained by them by this fire, but only an interest in the claim and demand against the defendant, represented by the sum of £866.20, and by the terms of subrogation the plaintiff is authorized and empowered to sue for the recovery of the damage occasioned by the fire only to the extent of that sum.
It is a well-settled rule that an entire claim or demand arising out of a single transaction, whether in the nature of a contract or tort, cannot be divided into separate and distinct claims, and the same form , of action brought for each, or two suits maintained, without defendant's consent. Herriter v. Porter, 23 Cal. 385; Logan v. Caffrey, 30 Penn. St. 196; Colvin v. Corwin, 15 Wend. 557; Alcott v. Hugus, 105 Penn. St. 350; Smith v. Jones, 15 Johns. 229; Hartford Fire Ins Co. v. Davenport, 37 Mich. 614.
A party cannot be permitted, even in a tort, to split up .a cause of action, and bring separate actions for a part of the claim, or several actions where one action would suffice. One seeking to enforce a claim must present by the pleadings or proof, or both, all the grounds upon which he expects a judgment. He may not split up his demand, or prosecute it piecemeal, or present only a portion of the grounds upon which relief is sought, and leave the rest for a' second suit if the first fails. Otherwise there would be no end to litigation. This rule is settled in James v. Allen Co., 44 Ohio St. 230, and cases there cited.
Under the pleadings and proofs in the case, the court should have directed the verdict in favor of the defendant, for the reason that it was made apparent to the court upon the trial that an effort was being made to collect upon a split cause of action, and which was a portion only of the claim.
If the Eix Bros, have a claim, undoubtedly they would have a right to maintain a suit for the loss occasioned by the negligence of the defendant in setting the fire, — if the defendant was negligent in that respect, — and the Eix Bros, could undoubtedly assign their claim and demand, and their assignee would be subrogated to their rights, having the same rights of recovery, and no greater;- but the Eix Bros, or their assignee, or person subrogated to only a portion of the claim, could not bring the action to recover such portion, and leave out of the suit or action a portion of such claim or demand.
The judgment of the court below must be reversed, with costs of both courts. No new trial will be ordered.
The other Justices concurred. | [
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] |
Per Curiam.
Until recently the city of Detroit was divided into 63 election districts. Under an act to amend the charter (Act No. 564, Local Acts of 1887), five inspectors of election for each of said 63 districts had been elected. Decently the common council has redistricted the city, creating 102 election districts. Some of the former districts remain unchanged. On October 4, 1892, the com mon council, by resolution, appointed five inspectors of election for each of tbe 102 districts. In the districts which had been undisturbed by the resubdivision, the inspectors who had been elected under the act of 1887 were appointed as inspectors in such districts. On the 2d day of November, 1892, the council adopted an ordinance designating and reappointing the inspectors named in the resolution of October 4, 1892. A mandamus is applied for to compel the common council to vacate the proceedings making such appointments, upon the ground that under the act of 1887 all • vacancies are to be filled by the electors in each district at the time of the opening of the polls on election day.
The mandamus must be denied. Section 2 of the act of 1887 provides that—
“ Any vacancy in their number, caused by failure or inability to elect by ballot, or by removal or death, may be filled for the remainder of said term by the electors present by viva voce vote, at the opening of the polls at any general or special election, and any vacancy caused by sickness or absence may in like manner be filled for the time being upon the opening of the polls at any general or special election.”
In the present case, however, no inspectors have ever been elected in such new districts as have been carved out of or include new territory; consequently no vacancies can be said to exist in those districts, and the act of 1887 contains no provision to meet such an emergency. In cases where new counties have been formed, the power given to the Governor to fill vacancies does not authorize him to appoint county officers, but in each instance the act creating the new county empowers the Governor to appoint provisional officers. Dingwall v. Common Council, 82 Mich. 568, was a case involving the filling of vacancies under the act of 1887, and has no application to the present case. In People v. Lord, 9 Mich. 227, and Lawrence v. Hanley, 84 Id. 399, the Court held that the death of a person elected to-office before he qualified and entered upon the duties of his office created no vacancy, and the reason was simply because there was an incumbent of the office . elected to serve until his successor should be elected, qualify, and enter upon the duties of the office. Here there is no vacancy in the office, because no office or officer for that district ever existed.
Section 4 of the general election law (Act No. 190, Laws-of 1891), provides:
“ In case of townships and incorporated villages so divided, the provisions of chapter 8 of HowelFs Annotated Statutes-shall apply to and govern all proceedings hereunder, with reference to such division, boards of registration, election inspectors, and all matters arising therefrom not provided for by this act. In cities where no special provisions exist relative thereto, such division, and all matters arising therefrom, not covered by the provisions of this act, shall be provided for by ordinance of the common council of said city; and it is hereby made the duty of such common council to make all necessary rules and regulations in connection therewith to fully carry out the provisions of this section/'’'
This provision gave to the council full power to act in the premises, and the mandamus must be denied. | [
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] |
Per Ouriah.
Tbe relator is sheriff of Oceana county, and presented a bill to respondent for services rendered and expenses incurred in serving a requisition issued by the Governor of the State, and directed to tbe governor of the state of Montana, for tbe apprehension of one Charles E. McClure. Tbe petition sets out that these services were rendered at tbe request of tbe prosecuting attorney of tbe county, and that tbe board of supervisors refused to audit tbe bill. Tbe answer of tbe board sets up that one John Y. Oahill, who was surety on the appearance bond for McClure, undertook to pay relator for bis expenses and services, and that be bad made such payment, and that tbe board so found when tbe bill was presented.
Tbe relator proceeded to hearing without asking that any issue be framed, and, under these circumstances, the answer of respondent must be taken as true. Merrill v. County Treasurer, 61 Mich. 95; Murphy v. Town Treasurer, 56 Id. 505; Hickey v. Supervisors, 62 Id. 100; Post v. Township Board, 63 Id. 324.
Tbe application must be denied, with costs. | [
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] |
McGrath, C. J.
This is a suit upon the following subscription to an hotel project:
“We, the undersigned, do hereby subscribe for the number of shares set opposite our respective names of the Curry Hotel Company, and promise to pay said company twenty-five dollars for each of said shares, when required by the board of directors of said company, which will be payable, May 1, one-fourth; June 1, one-fourth; July 1, one-fourth; August 1, one-fourth.”
One thousand and sixty-eight shares at $35 each, amounting to $36,700, were subscribed by 39 persons upon this paper, — defendant for 40 shares; and on April 33, 1890, articles of association, under Act No. 70, Laws of 1887, were executed by five of the persons who had signed the foregoing agreement. Defendant did not join in the execution of the articles, but was included as one of the persons holding shares. The articles recited that the capital stock “ shall be $30,000, divided into 1,200 shares at $25 each." In the recitation as to the names of stockholders, with the number of shares held by each, it is alleged that 1,068 shares, amounting to $26,700, were held.
The act under which plaintiff is incorporated is of the .same class as that passed upon in International Fair & Exposition Association v. Walker, 88 Mich. 62, and that case rules this. The stock was not all subscribed, and defendant could only be held liable on the ground that he had .assumed the relation of a stockholder in the corporation, had been recognized by the corporation as a member, and had waived the condition that the whole capital stock must first be subscribed. It was.not deemed necessary that all whose names were included in the list of stockholders should sign the articles of association. By a tacit understanding, had prior to the preparation and execution of the articles, the five who executed the articles were to act as directors; and, without any meeting of the stockholders, the five so acted. The first meeing of the stockholders was held in March, 1891. Defendant attended none of the meetings of the corporation.
The conduct upon which plaintiff relies as establishing defendant’s relations with the company, and constituting a waiver of plaintiff’s infirmity, antedated the preparation «.rid execution of the articles. Nothing occurred after-wards that would clothe him with membership, or that could be construed as a waiver.
The trial court was right in directing a verdict for defendant, and the judgment is affirmed.
The other Justices concurred. | [
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Durand, J.
This is an action of replevin, brought against the defendants to recover a stock of goods and merchandise, consisting mostly of groceries, provisions, store fixtures, and furniture, then in the Tower block in the city of Ionia.
The facts necessary to be stated are these: One Fred A. Tower, being the owner of the property now in controversy, and being justly indebted to Sarah J. Tower, the plaintiff, in tbe sum of $2,000, for money loaned to bim by her, did on April 7, 1890, execute and deliver to ber a chattel mortgage on tbe same, to secure tbe payment of tbe indebtedness above mentioned. This chattel mortgage is in tbe usual form, and no contention is raised either as to tbe indebtedness or tbe form of tbe mortgage. On April 14, 1890, she filed tbe mortgage in tbe office of tbe city clerk of tbe city of Ionia. On April 15, 1891, no part of said mortgage indebtedness having been paid, she went to tbe office of said city clerk for tbe purpose of making and filing tbe usual renewal affidavit required by law, and found tbe office in charge of one Charles Girard, who was then acting as, and claiming to be, deputy city clerk; tbe city clerk himself then being absent. Upon making ber business known, tbe said Girard, as deputy city clerk, then and there swore ber to tbe affidavit, which' was in tbe usual form prescribed by law in such cases, and, as such officer, annexed tbe same to the mortgage, and filed it in said office. On July 25, 1891, executions, issued upon judgments against tbe mortgagor, Fred A. Tower, amounting to upwards of $1,000, were placed in tbe bands of tbe defendant Montgomery, then a deputy-sheriff of said county, who, by virtue thereof, levied upon tbe property in question, and took possession of it, in denial of plaintiffs right as mortgagee, and upon tbe claim that ber mortgage bad not been properly renewed, and was therefore void as against .the judgment creditors represented in tbe executions. Tbe plaintiff thereupon insisted upon tbe recognition of ber rights as mortgagee, and, upon this being refused, she brought this action against tbe defendants, Welker, as sheriff, and Montgomery, as tbe deputy-sheriff, having tbe property in bis possession. Upon tbe trial in tbe circuit court without a jury tbe judge found for tbe plaintiff, and tbe defendants claim error.
Tbe point of contention raised by defendants is that tbe affidavit of renewal is void, upon the ground that Charles Girard, as deputy city clerk of the city of Ionia, was not an officer having authority to administer an oath. We do not agree with the defendants in this position. Section 18 of the charter of the city of Ionia, as passed in 1873 and amended in 1889, contains the following:
“ The clerk of said city shall have all powers and duties of township clerks, in addition to the other duties hereby imposed upon him. * * * He is also hereby authorized and empowered generally to administer oaths and to take affidavits.”
Among the powers of a township clerk is that of appointing a deputy, who shall take an oath of office, and file the same with the clerk; and, in case of the absence, sickness, death, or other disability of the clerk, such deputy shall perform the duties of such clerk. How. Stat. § 743. We therefore have no hesitation in saying that under these provisions the city clerk of 'Ionia had a right to appoint a deputy, who, upon the happening of either of the contingencies named, had the right to perform all the duties which the clerk himself could legally perform.
The defendants contend that, even if the clerk has this power to appoint, yet the deputy appointed would only have the right to perform such duties as appertain to township clerks, but without the enlarged rights conferred upon the city clerk to administer oaths and take affidavits.
We think this much too narrow a construction to place upon the legislation. It cannot be that the Legislature intended to create the danger and confusion Avhich such a condition would create; and having, by the authority granted, clearly conferred the right upon the city clerk to appoint a deputy, it is equally clear that it was intended to give the deputy the same power as the principal upon the happening of a contingency which authorized the deputy to act at all. The city clerk, therefore, having “all the powers and duties of township clerks,” had, among such powers and duties, the power and duty of appointing a deputy. Charles Girard was duly appointed a deputy city clerk, filed his oath of office, and at the time the affidavit was sworn to before him was exercising the powers and performing the duties of city clerk.
According to the common law, a deputy was one who exercised an office in another’s right. In general, all ministerial duties which the principal himself has a right to perform may be discharged by a deputy. The following authorities illustrate the general rule that the duties of a deputy are coextensive with the duties of a principal, and that, consequently, the act of the deputy in the present case was an official act, and hence as valid in all respects as though it were the act of the principal: McRaven v. McGuire, 9 Smedes & M. 34; Abrams v. Ervin, 9 Iowa, 87; Com. v. Arnold, 3 Litt. (Ky.) 316; Triplett v. Gill, 7 J. J. Marsh. 438; Hope v. Sawyer, 14 Ill. 254; Eastman v. Curtis, 4 Vt. 616; Beaumont v. Yeatman, 8 Humph. 542; Parker v. Kett, 1 Ld. Raym. 658; Malony v. Mahar, 2 Doug. 432; State v. Ruff, 29 Pac. Pep. (Wash. St.) 999.
The defendants also contend that, although Charles Girard was recognized as a deputy by every one having any business to do at the office of the city clerk, including the public officials of that city, yet there were certain irregularities in the manner of his appointment, or in reference to the time when his official oath was filed, which defeat his legal title to that office. This objection cannot be heard in this proceeding. The record shows that at the time this affidavit was made he was, and for a long time before had been, openly and without objection performing the duties of the office of deputy city clerk. He was de facto that officer, and his title to it cannot be questioned collaterally. The actual legal right of one in possession of an office cannot be tried in a collateral proceeding- between third persons, and in such proceeding the mere proof of user will be sufficient, to show his official action valid. Facey v. Fuller, 13 Mich. 527; Board of Auditors v. Benoit, 20 Id. 176; Druse v. Wheeler, 22 Id. 439; Keator v. People, 32 Id. 484; Jhons v. People, 25 Id. 499; Frey v. Michie, 68 Id. 323; Mead v. County Treasurer, 36 Id. 416; Moiles v. Watson, 60 Id. 415.
We discover no error in the findings of the circuit judge, and the judgment is affirmed, with costs of this-Court.
The other Justices concurred. | [
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Montgomery, J.
The bill in this case was filed to restrain „ the defendant from interfering with an alleged right of way over certain lands occupied by the defendant.
Complainant’s right rests upon a reservation or exception in a certain deed executed by one Harvey King to Ira H. -Wait, March 2, 1853, complainant having derived his title through mesne conveyances from King. At the time the conveyance in question was made Harvey King was the owner of 50 acres of land, the title to 25 of which is now vested in complainant, the title to the remaining 25 being in defendant, subject to the alleged easement. By the deed in question the-25 acres abutting upon the highway was conveyed to Wait, King retaining 25 acres in the rear, and the deed contained the language following, after the description of the property: “Reserving from said grant the perpetual right of way for a private way through ■on the south side of said lot.” The circuit judge granted the relief prayed in the bill.
The defendant appeals, alleging — First, that there is not a sufficient basis for equity jurisdiction; second, that the reservation did not inure to the benefit of the 25 acres remaining in King, and did not pass by conveyance to his grantees; and, third, that the easement, if any such has been created, has been lost by non-user.
1. We think equity may well take jurisdiction of such a .case. As was said in Nye v. Clark, 55 Mich. 599, 601:
“No action of damages could give adequate redress to a -party who is hemmed in so as to have no peaceable egress from his own farm.”
See, also, Wilmarth v. Woodcock, 66 Mich. 331; Morgan v. Meuth, 60 Id. 238; Cook v. Mayor, L. R. 6 Eq. 177; Welsh v. Taylor, 2 N. Y. Supp. 815; Longendyck v. Anderson, 59 How. Pr. 1.
2. We think the contention that the reserved right of way was in gross, and not appurtenant to the land retained by tbe grantor, should not prevail. The right of way reserved by the deed could have had no value to King -except as it enabled him to reach the land retained by himself. In the case of Dennis v. Wilson, 107 Mass. 591, the identical question here involved was presented, and it was held that a reservation in the words, “ excepting and reserving a right of way to pass and repass over said land with teams and otherwise, on the northerly side of said premises, and not exceeding eight rods from the old Worcester road,” created an easement appurtenant to the land remaining in the grantor. See, also, Borst v. Empie, 5 N. Y. 33
The case of Garrison v. Rudd, 19 Ill. 570, cited by defendant, is clearly distinguishable from the case at bar. In that case the reservation was.in these words:
“The parties of the first part reserving to themselves and their heirs, forever, the use of an alley twenty-five feet wide on or near the south line of the above-conveyed tract, jointly with the said party of the second part, and his heirs; said alley to extend from said river road to the river.”
The court held that this was a reservation of a right of way in gross, which would not ■ pass by a conveyance of the land the title to which was retained by the grantor. But in that case both termini of the way were disconnected from the land retained by the grantor, and hence would not be presumed to be appurtenant to it.
3. It is undoubtedly the general rule that in a reservation, as well as in the granting clause of a deed, the word “heirs” must be employed to create an estate which will extend beyond the life of the party in whom the estate is vested. But it is said in Washburn on Easements (page 30):
“In respect to whether the reservation is a perpetual interest, like a fee, in the easement reserved, the question seems to turn upon whether it is a personal right, an easement in gross, or one for the' benefit of the principal estate and its enjoyment, whoever may be the owner. In the latter case it is held to be a permanent right appurte'nant to the principal estate in the hands of successors or assigns without words of limitation. The courts of Maine treat such a reservation as an exception to- obviate the objection.”
See, also, Karmuller v. Krotz, 18 Iowa, 352; Winthrop v. Fairbanks, 41 Me. 307; Smith v. Ladd, Id. 314; Burr v. Mills, 21 Wend. 290; Borst v. Empie, 5 N. Y. 33. In Borst v. Empie the grantors excepted from the conveyance of certain lands the 1£ acres upon which a tannery stood, and the deed contained the further clause:
“The said parties of the first part, as aforesaid, do also-reserve to themselves and their use a certain well and waterworks laid down for the purpose of supplying the tannery aforesaid with water.”
It was held that these words created an easement appurtenant to the excepted land, which passed by conveyance,, and was not personal to the grantors. In Winthrop v. Fairbanks it was held that the language, “reserving forever for myself the privilege of passing with teams and cattle across the same in suitable places, to land I own to-the south of the premises,” created an easement appurtenant to the remaining land, which ran with the land, and was good in the heirs and assigns of the grantor. In. Smith v. Ladd, a similar rule was laid down.
é: There has been no abandonment, and no such nonuser, accompanied by an adverse possession, as has barred, complainant’s right. At the time of the conveyance from King to Wait the reserved land was wild land, and it does-not appear that there was any occasion to make use of the right of way. A mere non-user for 20 years does not extinguish an easement. If such non-user is not accompanied by acts which show an intention of abandonment, adverse possession, as well as non-user, is required to effect. the extinguishment. Veghte v. Water Power Co., 19 N. J. Eq. 142; Horner v. Stillwell, 35 N. J. Law, 307; Pratt v. Sweetser, 68 Me. 344; Eddy v. Chace, 140 Mass. 471 (5 N. E. Rep. 306). In the present case the conveyances under which the defendant holds expressly reserve the right of way. Under these circumstances, his possession of the land, which is not inconsistent with the right of the complainant to pass over it, would not be presumed to be adverse until some act was committed by him which brought home to complainant notice of his intention to repudiate the grant of his own grantor.
The decree of the court below will be affirmed, with costs.
The other Justices concurred. | [
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FER CURIAM.
Flaintiffs appeal as of right the trial court’s order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(4), and defendants cross-appeal. We hold that defendants are entitled to summary disposition because previous litigation in federal court between defendants and Governor John Engler, Attorney General Jennifer Granholm, and members of the Michigan Public Service Commission (MPSC) that was concluded by entry of a consent judgment requires dismissal of this action on the basis of the doctrine of res judicata. We therefore affirm the trial court’s grant of summary disposition for the defendants in this case, but remand for entry of an order granting defendants summary disposition pursuant to MCR 2.116(C)(7).
MCL 484.23KK7) (§ 310[7]) prohibited defendants and other telephone companies with more than 250,000 subscribers from imposing “an intrastate subscriber line charge or end-user [common] line charge” (EUCL) on local telephone service customers. After the enactment of § 310(7), defendants filed suit against the Governor,, the Attorney General, and the members of the MPSC, in their official capacities, in the United States District Court for the Eastern District of Michigan, alleging that § 310(7) was facially unconstitutional, in violation of the due process clauses of the Fourteenth Amendment, US Const, Am XTV( § 1, and the Michigan Constitution, Const 1963, art 1, § 17, and seeking a preliminary injunction barring enforcement of § 310(7). Verizon North, Inc v Engler, Case No. 00-CV-73208-DT (2000). The federal district court denied defendants’ request to preliminarily enjoin enforcement of § 310(7). The United States Court of Appeals for the Sixth Circuit reversed, however, holding that there was a “substantial likelihood” that § 310(7) was unconstitutional. Michigan Bell Tel Co v Engler, 257 F3d 587, 600 (CA 6, 2001) (consolidated with Verizon North, Inc v Engler on appeal). In December 2002, the defendants, the Governor, the Attorney General, and the members of the MPSC entered into a settlement agreement. Under the terms of the settlement agreement, defendants were permitted to continue to impose an EUCL, but at a reduced rate. The federal district court subsequently entered a consent judgment based on the settlement agreement on December 31, 2002.
In March 2003, plaintiffs, local telephone service customers of defendants, filed this lawsuit against defendants, alleging that defendants had imposed on them and required them to pay the EUCL in violation of § 310(7). Plaintiffs alleged that the total amount charged in violation of § 310(7) exceeded $50 million and sought a judgment in that amount. Defendants moved for summary disposition under MCR 2.116(C)(4), (C)(5), (C)(7), and (C)(8). Defendants argued that plaintiffs’ suit was barred under the doctrine of res judicata based on the consent judgment entered into by defendants, the Governor, the Attorney General, and the members of the MPSC in the prior federal lawsuit. Defendants also argued that § 310(7) was unconstitutional because it violated due process protections because it did not provide defendants the opportunity to challenge the EUCL rate cut in advance of its application. Defendants lastly argued that summary disposition was appropriate because the MPSC had primary jurisdiction over plaintiffs’ claim and because plaintiffs had failed to exhaust their administrative remedies.
The trial court rejected defendants’ argument that plaintiffs’ claim against defendants was barred under the doctrine of res judicata, holding that plaintiffs in this case were not in privity with the state officials in the prior federal litigation. In concluding that there was no privity between plaintiffs in this case and the defendants in the prior federal litigation, the trial court stated that plaintiffs were not adequately represented by the state officials in the prior federal litigation because the defendants in the prior federal litigation were motivated to settle the case for political reasons that were inconsistent with plaintiffs’ interests. Therefore, the trial court ruled that, because there was no privity between plaintiffs in this case and the defendants in the prior federal case, plaintiffs’ claim was not barred by res judicata. Although the trial court rejected defendants’ argument that plaintiffs’ claim was barred by res judicata, the trial court nonetheless granted defendants’ motion for summary disposition under MCR 2.116(C)(4). In granting defendants’ motion for summary disposition, the trial court ruled that defendants should have been given the opportunity to demonstrate whether a complete reduction of the EUCL is confiscatory. The trial court further ruled that, although the matter was properly before the court, the MPSC was the proper forum in which the case should proceed.
On cross-appeal, defendants argue that the trial court erred in holding that plaintiffs’ claim was not barred under the doctrine of res judicata. This Court reviews de novo a trial court’s decision to grant summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The applicability of the doctrine of res judicata constitutes a question of law that this Court also reviews de novo. Stoudemire v Stoudemire, 248 Mich App 325, 332; 639 NW2d 274 (2001).
This Court must apply federal law in determining whether the doctrine of res judicata requires dismissal of this case because the consent judgment in the prior suit was entered by a federal court. Pierson Sand & Gravel, Inc v Keeler Brass Co, 460 Mich 372, 380-381; 596 NW2d 153 (1999). Under federal law, res judicata precludes a subsequent lawsuit “ ‘if the following elements are present: (1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their “privies”; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.’ ” Becherer v Merrill Lynch, Pierce, Fenner & Smith, Inc, 193 F3d 415, 422 (CA 6, 1999), quoting Bittinger v Tecumseh Products Co, 123 F3d 877, 880 (CA 6, 1997) (emphasis omitted in Becherer). Regarding the second element, a nonparty who is adequately represented by a party will be bound by a judgment against that party. Id. at 881; Becherer, supra at 422-423. For a nonparty to have been adequately represented a nonparty, there must be “an express or implied legal relationship in which parties to the first suit are accountable to nonparties who file a subsequent suit raising identical issues.” Id. at 423 (citation omitted).
Plaintiffs do not contest that three of the four elements necessary to establish res judicata are satisfied. The only element of res judicata that plaintiffs contest is the second element: whether plaintiffs in this case and the defendants in the prior federal litigation are the same parties or their privies. Plaintiffs contend that there is no privity between them and the defendants in the prior federal lawsuit because the state officials who were the defendants in the prior federal litigation did not adequately represent their rights. Plaintiffs in this case are a group of local telephone service customers of defendants. The defendants in the prior federal action were the Governor and the attorney General of the state of Michigan, as well as the commissioners of the MPSC, in their official capacities. Because plaintiffs are not the same parties as the defendants in the prior litigation, their claims against defendants in this case are only precluded by res judicata if plaintiffs are in “privity” with the governmental officials who were the defendants in the prior federal action. The trial court concluded that there was no privity because the Governor, the Attorney General, and the members of the MPSC had political interests that were not identical to the plaintiffs’ interests and that plaintiffs were therefore not adequately represented in the prior federal litigation. We disagree.
We agree with, and adopt as our own, the reasoning and holding from our decision in Bahar v Ameritech Michigan, unpublished opinion per curiam of the Court of Appeals, issued January 4, 2005 (Docket No. 249263) (Ameritech). In Ameritech, customers of Ameritech brought a lawsuit against Ameritech that, like the lawsuit in this case, sought the return of EUCLs collected by Ameritech in violation of § 310(7). Before the plaintiffs in Ameritech filed their lawsuit against Ameritech seeking return of the EUCLs, however, Ameritech, like defendants in this case, had filed suit against the Governor and the members of the MPSC, in their official capacities, in the United States District Court for the Eastern District of Michigan, alleging that § 310(7) was unconstitutional in that it violated the Due Process Clause of the Fourteenth Amendment. Michigan Bell Tel Co v Engler, Case No. 00-CV-73207-DT, aff d in part and rev’d in part Michigan Bell Tel Co v Engler, 257 F3d 587 (CA 6, 2001). The federal district court consolidated Ameritech’s challenge to the constitutionality of § 310(7) with defendants’ challenge to the constitutionality of § 310(7), as did the Sixth Circuit. Moreover, as in this case, there was a consent judgment entered in the prior federal litigation. That consent judgment was like the consent judgment in the prior federal action related to this case in that it permitted Ameritech to continue to charge its customers an EUCL, but at a lowered rate. In Ameritech, this Court held that the plaintiffs’ claim against Ameritech for the return of the EUCLs that were made in violation of § 310(7) was precluded under the doctrine of res judicata based on the consent judgment reached in the prior federal litigation. We find the reasoning of our opinion in Ameritech to be persuasive regarding whether plaintiffs in this case were in privity with the defendants in the prior federal action. Ameritech is an unpublished opinion and is therefore not binding authority under the doctrine of stare decisis. MCR 7.215(C)(1); Dyball v Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 522 (2004). Nevertheless, because we find its reasoning persuasive and dispositive of this matter, we adopt the following analysis as our own:
In Richards v Jefferson County, Ala, 517 US 793, 798; 116 S Ct 1761; 135 L Ed 2d 76 (1996), the United States Supreme Court stated that a litigant need not always “have been a party to a judgment in order to be bound by it.” The most notable exception to the general rule occurs “when it can be said that there is ‘privity’ between a party to the second case and a party who is bound by an earlier judgment.” Id. The Court further explained that although the exception has some constitutional limits, “the term ‘privity’ is now used to describe various relationships between litigants that would not have come within the traditional definition of that term.” To provide examples of the expansive nature of the term, the Court referenced Restatement Judgments, 2d, (1980), Ch 4. Id.
The pertinent portion of the chapter cited in Richards, Restatement, § 41, states as follows.
“(1) A person who is not a party to an action but who is represented by a party is bound by and entitled to the benefits of a judgment as though he were a party. A person is represented by a party who is:
“(d) An official or agency invested by law with authority to represent the person’s interests[.]”
The Restatement’s comment regarding “representation by public officials” explains that in situations where individual members of the public have a “legally enforceable right permitting them to bring or defend an action concerning an interest,” a public official or agency may also seek to protect that interest through litigation. The comment further states:
“Where this is so, a further question presented is whether the exercise of the official or agency’s authority to maintain or defend litigation concerning the interest should be construed as preempting the otherwise available opportunity of the individual or members of the public to prosecute or defend litigation in the matter. Where the exercise of that authority is regarded as preemptive, the public official or agency represents such other persons for the purposes of litigation concerning the interests in question and the judgment is binding on them.”
The Fifth Circuit Court of [A]ppeals applied these principles in Southwest Airlines Co v Texas [Int’l] Airlines, Inc, 546 F2d 84, 95 (CA 5, 1977). Several years before the litigation commenced the city of Dallas brought suit against the airline seeking a declaratory judgment of [its] right to exclude it from a particular airport, Love Field, based on a bond ordinance funding the creation of Dallas/Fort Worth Regional Airport. Id. at 87. Southwest counterclaimed and obtained an injunction preventing the city from interfering with its use of Love Field. Id. at 88. In the subsequent litigation, a group of airlines, assuming the role of private attorneys-general, similarly filed suit seeking to have Southwest excluded from Love Field based on the ordinance. Id. at 97. The Fifth Circuit, noting that the “relationship between the city as public enforcer of the ordinance and the airlines as private enforcers is close enough to preclude relitigation,” dismissed the suit as res judicata.
In reaching this decision, the Fifth Circuit applied the reasoning expressed in the comment to Restatement, § 41(d). It noted that in certain situations, an agency’s authority to maintain or defend a suit should be construed as preempting the otherwise available opportunity of individuals to litigate the matter. [Southwest, supra] at 99. The Court then found that (1) the other carrie[r]s did not allege that Southwest breached a legal duty apart from the general duty to obey valid ordinances, (2) that they requested the same remedy denied the [c]ity of Dallas, the enforcement of the ordinance, and (3) that the ordinance did not establish a “statutory scheme looking toward private enforcement of its requirements.” Id. at 100. Because the legal interest of the other carriers did not differ from those of Dallas in the initial suit, the Court held that “they received adequate representation in the earlier litigation and should be bound by the judgment in that litigation.” Id.
The Fifth Circuit further stated that, because application of the doctrine of res judicata denies a non-party his day in court, the due process clause prevents preclusion when the relationship between the party and non-party becomes too attenuated. Southwest, supra[] at 95, citing Hansberry v Lee, 311 US 32; 61S Ct 115; 85 L Ed 22 (1940). But it noted that in Hansberry, the property owners in the initial suit sought to enforce a racially restrictive covenant while the defendants in the subsequent suit tried to invalidate it. [Southwest, supra] at 101. Because the initial class represented interests in direct opposition to the position of the defendants, the Supreme Court held that preclusion would violate due process. Id. Unlike the situation in Hansberry, the Fifth Circuit found that the legal interests of the plaintiff airlines in Southwest precisely coincided with those of the city in the first suit and that the city vigorously and skillfully litigated the matter. Id[.] at 102. Consequently, the preclusion of plaintiffs’ claim did not violate their right to due process.
Plaintiffs’ suit in the instant case must similarly fail as res judicata. Like the plaintiff airlines in Southwest, plaintiffs here do not allege that defendant breached a legal duty other than the general duty to obey valid statutory provisions. Further, they request the same result sought by the governor and the members of the MPSC in the initial litigation, namely enforcement of the prohibition of EUCL charges set forth in section 310(7). And this provision did not establish a statutory scheme looking towards private enforcement of its requirements. Because plaintiffs’ legal interests do not differ from those of the defendants in the initial suit, they received adequate representation. Thus, the consent judgment entered in the prior litigation, allowing some EUCL charges, bars plaintiffs’ attempt to enforce section 310(7) in the instant litigation.
Furthermore, preclusion of plaintiffs’ claim does not violate plaintiffs’ right to due process. Contrary to plaintiffs’ arguments, Richards, supra, provides no support for a different conclusion. In Richards, a state court held that the resolution of a suit brought by a city official and three individual county taxpayers on state law grounds precluded subsequent litigation by a class representing all county taxpayers and based on both state law and federal constitutional grounds. Id. at 795-797, 801-802. The Supreme Court found this violated the class’ right to due process because its interests were not adequately represented in the initial litigation. Id. at 802. But in the instant case, as in Southwest, there exists an identity of interests between plaintiffs and the defendants in the earlier litigation and there is no indication that those defendants failed to zealously assert their interests. Plaintiffs were adequately represented and the finding that their claim is precluded as res judicata does not violate their rights under the constitution.
In sum, plaintiffs are bound by the consent judgment entered in Michigan Bell Telephone Co v Engler et al, and are therefore barred by the doctrine of res judicata from seeking private enforcement of section 310(7). Becaiise this finding requires dismissal of the instant litigation, we need not address the remainder of defendant’s claims on appeal.
[Ameritech, supra, slip op at 3-5.]
On the basis of our holding in Ameritech, we hold that plaintiffs’ claim for private enforcement of § 310(7) in this case is barred by res judicata and, therefore, should be dismissed under MCR 2.116(C)(7). The relevant provision of the consent judgment in the federal Ameritech case is nearly identical to the consent judgment at issue in this case. The consent judgments permitted Ameritech and Verizon to continue to impose on their customers an EUCL, but required the companies to lower the rate of the charge. Like the plaintiffs in Ameritech, plaintiffs in this case do not allege that defendants breached a legal duty other than the general duty to obey valid statutory provisions. Moreover, plaintiffs in this case and the Governor, the Attorney General, and the members of the MPSC in the previous case all requested the same relief: enforcement of the prohibition of the EUCL in § 310(7). The state’s interest in enforcing the prohibition of the EUCL in § 310(7) and plaintiffs’ interest in relief from the EUCL were identical. Furthermore, as we observed in Ameritech, § 310(7) did not establish a statutory scheme looking toward private enforcement of its requirements. Finally, because there was an identity of interests and plaintiffs received adequate representation in the prior federal litigation, preclusion of plaintiffs’ claim under res judicata does not violate their due process rights. The consent judgment entered in the prior federal litigation, allowing defendants to charge an EUCL, but at a reduced rate, bars plaintiffs’ attempt to enforce § 310(7) in this litigation.
For the reasons articulated in Ameritech, we conclude that plaintiffs’ claim against defendants in this case is barred under the doctrine of res judicata based on the consent judgment in the prior federal case. Therefore, the trial court should have granted summary disposition in defendants’ favor under MCR 2.116(C)(7). In granting summary disposition in favor of defendants, the trial court erroneously held that plaintiffs’ claim against defendants was not barred under the doctrine of res judicata, but nevertheless granted summary disposition in favor of defendants under MCR 2.116(C)(4). Although the trial court erroneously concluded that plaintiffs’ claim was not barred by res judicata, we will not reverse its decision if the trial court reached the right result for the wrong reason. Taylor v Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000). Because our conclusion that plaintiffs’ claim is barred by res judicata requires dismissal of plaintiffs’ case against defendants, we need not address the parties’ remaining arguments on appeal and cross-appeal.
Affirmed, but remanded for entry of an order granting defendants summary disposition pursuant to MCR 2.116(C)(7). We do not retain jurisdiction.
MCL 484.2310 was to be repealed on December 31, 2005, until 2005 PA 235 again amended the section and extended the effective date of repeal to December 31,2009. Section 310(7) was deleted and § 310(8) was renumbered to § 310(7) by 2005 PA 235. | [
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PER CURIAM.
Plaintiffs appeal as of right an order granting summary disposition pursuant to MCR 2.116(C)(8) to defendants. This case arose when the village of Stockbridge contracted with the Ingham County Drain Commissioner to discharge its excess wastewater into the Jacobs Lake Drain, which flows through the Wild River and Portage River drains and ultimately the Grand River Drain. We affirm.
The Wild River, the Portage River, and the Grand River intercounty drains all flow through Jackson County. The Jacobs Lake Drain is located entirely in Ingham County. The village, which is also located in Ingham County, is outside any of the previously mentioned intercounty drainage districts. Plaintiff Geoffrey Snyder, the Jackson County Drain Commissioner, testified that flooding had historically occurred along all three drains before he was first elected in 1976, and that the flooding had worsened every year since. He admitted that no assessments had been levied since 1918, and that maintenance had not been performed on the drains during the time he had been in office. One of the landowners along the drain testified that one of his parcels flooded seven out of ten springs. He stated that he used to farm other properties along the drain, but abandoned them when he could not harvest a crop as a result of the flooding. He also said he had observed frequent flooding on others’ properties. Another landowner along the drain testified that a couple of times a year — usually after a heavy rain — the Wild River Drain would back up, and the tributaries would overflow their banks.
According to Richard Grant, Jr., a professional engineer hired by the village, the village had historically disposed of its treated effluent by spraying it over crop fields. When the village began having trouble with its existing system’s ability to accept new flow, it hired Grant’s firm to explore other discharge alternatives. The firm investigated several alternatives, including discharge into the Huron Lake Drain and Snyder’s proposal. The firm recommended continuing to dispose of the wastewater by spray irrigation during the warm months and discharge into the Jacobs Lake Drain during cold weather. After five public meetings and hearings before the Department of Environmental Quality (DEQ), with Snyder participating in at least one of the five, the DEQ issued a finding of no significant impact, the project plan was approved, and funding was received. Although Snyder claimed he objected to the proposed plan, he acknowledged that he did not formally appeal the DEQ’s finding of no significant impact. He wrote the village a letter on October 6, 2002, advising the village that it needed to add its lands to the intercounty drainage district pursuant to MCL 280.433. The DEQ issued the village a discharge permit on June 17, 2003.
On September 3, 2003, the village and the Ingham County Drain Commissioner entered into an agreement that allowed the village to discharge into the Jacobs Lake Drain. The village agreed to pay the Jacobs Lake Drain a one-time tie-in fee of $30,000 and annual maintenance fees of $1,500. It further agreed it would not discharge at a rate of more than three cubic feet a second and would not discharge when the Jacobs Lake Drain was at 90 percent capacity. The commissioner reserved the right to temporarily suspend the village’s discharge when, in his discretion, he determined that an emergency situation existed. The agreement contained no specific provisions for downstream flooding or payments to the various intercounty drains.
On October 16, 2003, the Grand River Intercounty Drainage Board voted two to one that a permit pursuant to MCL 280.433 was not required, and voted two to one to not require any other type of permit from the village. On October 24,2003, plaintiffs filed a complaint seeking superintending control, mandamus, and declaratory and injunctive relief. The village and the drain defendants filed respective motions for summary disposition pursuant to MCR 2.116(C)(8) and (10). Plaintiffs moved for summary disposition pursuant to MCR 2.116(0(10) on counts I, iy and VI of their amended complaint. The trial court granted defendants summary disposition pursuant to MCR 2.116(C)(8).
Plaintiffs essentially argue that the Jacobs Lake Drain, the Wild River Drain, the Portage River Drain, and the Grand River Drain all comprise a single inter-county drain, and that defendants were required to extend the intercounty drain pursuant to either MCL 280.511 et seq. or MCL 280.433 before the village could discharge into the Jacobs Lake Drain. We disagree.
This Court reviews a trial court’s grant of summary disposition pursuant to MCR 2.116(C)(10) de novo, Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003), to determine whether a genuine issue of material fact exists or whether one of the parties is entitled to judgment as a matter of law, Scalise v Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d 858 (2005). Summary disposition granted pursuant to MCR 2.116(C)(8) is also subject to review de novo to determine whether a claim is so clearly unenforceable as a matter of law that no factual development could justify recovery. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004), quoting Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).
The specific language of MCL 280.433(1) refers to an agreement between the appropriate drain authority and a landowner. No mention is made of a municipality. Had the Legislature intended to include municipalities in this provision, it could easily have done so in a manner similar to MCL 280.71, which provides the procedure for freeholders to petition for a county drain, then provides a separate procedure for a municipality to petition for a drain. Moreover, the agreement referred to in MCL 280.433 is for the purpose of providing drainage service to lands. There is no indication in the instant case that the village intended to drain any lands. Therefore, MCL 280.433 is not applicable.
Instead, MCL 280.423 is the more applicable authority. MCL 280.423(6) requires a person to apply for and receive written approval and pay a fee before being allowed to connect sewage to a county or intercounty drain. MCL 280.423(1) provides certain standards the person must meet before discharging sewage and waste matter into the county or intercounty drain. One of these requirements is to obtain a discharge permit from the DEQ pursuant to MCL 324.3112, which the village did. Moreover, unlike MCL 280.433, MCL 280.423(11) specifically provides that a “person” includes a governmental entity.
Because plaintiffs were not challenging the DEQ discharge permit, to withstand summary disposition, they had to present sufficient evidence to raise a genuine issue of material fact concerning whether the proposed discharge was “capable of producing in the drain detrimental deposits, objectionable odor nuisance, injury to drainage conduits or structures, or capable of producing such pollution of the waters of the state receiving the flow from the drains as to injure livestock, destroy fish life, or be injurious to public health.” MCL 280.423(1). “Detrimental” is defined as damaging or harmful. Random House Webster’s College Dictionary (2001).
The discharge permit issued by the DEQ provided that “[t]he receiving water shall contain no unnatural turbidity, color, oil films, floating solids, foams, settle-able solids, or deposits as a result of this discharge.” It also proscribed the discharge of “solid or viscous pollutants in amounts which will cause obstruction to the flow in the sewerage system resulting in interference .. ..” It allowed a discharge of suspended solids from March 1 to April 30 of up to 100 milligrams a liter a day, not to exceed an average of 70 milligrams a liter a day, and a discharge of suspended solids from November 1 to December 31 and in February of up to 45 milligrams a liter a day, not to exceed an average of 40 milligrams a liter a day. A milligram equals 0.001 grams, there are 1,000 grams in a kilogram, and one kilogram is about the mass of one liter of water. Therefore, at the highest rate, the permitted discharge of total suspended solids was 0.01 percent of the total discharge.
Snyder testified that the village was authorized to discharge effluent at an average rate of 2.7 cubic feet a second. The design capacity for the Jacobs Lake Drain was 650 cubic feet a second. And the Jacobs Lake Drain contributed merely one to five percent of the total flow of the Grand River Drain. Therefore, the total flow of the Grand River Drain was between 13,000 and 65,000 cubic feet a second. The proposed discharge from the village would comprise between 0.0004 and 0.002 percent of this total flow. Of this percentage of the total flow, not more than 0.01 percent would involve suspended solids.
Ann Heyt, a professional engineer who testified for plaintiffs, estimated that the proposed discharge would contribute between 21,000 and 27,000 pounds of sediment a year to the 7 million pounds a year already being deposited in the Portage River. Thus, plaintiffs’ expert estimated that the discharge would contribute 0.3 to 0.39 percent of the total sediment a year. She acknowledged that the amount contributed was a very small fraction of the total, but could not estimate whether the addition of the sediments would make the situation worse because the amount of sediment deposited in a particular area depended on many factors, such as the different flow rates, velocity, elevation, and hydraulics of the stream. Given that even testimony introduced by plaintiffs did not indicate a significant contribution, we conclude that plaintiffs failed to establish that an issue of material fact existed concerning whether the proposed discharge would result in a detrimental deposit.
The next question is whether the village was required to obtain written approval from only the Ingham County Drain Commissioner or was required to obtain written approval from the intercounty drainage board pursuant to MCL 280.423(6). This requires a determination whether the proposed discharge to the Jacobs Lake Drain would constitute a discharge into an intracounty drain or an intercounty drain. MCL 280.511(e) defines an “inter-county drain” as “any drain, irrespective of size, carrying drainage water or sewage originating in more than one county, and includes drains located, established and constructed by a county drain commissioner or drainage board, by a city village or township.” “Originate” is defined in relevant part as “to give origin or rise to[.]” Random House Webster’s College Dictionary (2001). The relevant definition of “origin” is “the first stage of existence; beginning.” Id. MCL 280.23 provides:
The commissioner shall have jurisdiction over all drains within his county, including those heretofore established and now in process of construction. Drains extending into more than 1 county or affecting lands in more than 1 county, shall be established and constructed in accordance with the provisions of this act regulating the establishment and construction of drains traversing more than 1 county or affecting lands in more than 1 county. Nothing in this act shall be construed as depriving a drain commissioner of jurisdiction or as making any drain an intercounty drain, merely because a drain extends into another county for the purpose of securing a proper outlet and not for the purpose of draining any lands in the other county: Provided, such extension is approved by the drain commissioners and the board of supervisors of each affected county. The portion of any such drain extending into another county shall not be considered in determining the number of signers required to a petition to locate, establish and construct.
Here, although the Jacobs Lake Drain empties into the Wild River Drain, which empties into the Portage River Drain, which empties into the Grand River Drain, the Jacobs Lake Drain and the Jacobs Lake Drain District are located entirely within Ingham County. The Jacobs Lake Drain does not extend into Jackson County to empty into the Wild River Drain. Instead, the Wild River Drain originates in Ingham County. Moreover, there is no indication from the maps provided to the trial court that water or sewage originating in another county empties into the Jacobs Lake Drain.
In any event, whether the Jacobs Lake Drain was considered part of the respective intercounty drains should have been indicated in the order establishing the intercounty drainage districts pursuant to MCL 280.105. Plaintiffs could easily have provided this order to establish their claim that the Jacobs Lake Drain was part of the intercounty drainage districts. They did not. When a party fails to produce evidence within its control, an adverse inference may be drawn. Grossheim v Associated Truck Lines, Inc, 181 Mich App 712, 715; 450 NW2d 40 (1989). Therefore, we conclude that the Jacobs Lake Drain is an intracounty drain, and the village was only required to obtain written approval from the Ingham County Drain Commissioner. MCL 280.23; MCL 280.423(6); MCL 280.511(e). Our decision on this issue renders moot all of plaintiffs’ remaining issues other than the governmental immunity issue.
The trial court granted defendants summary disposition on plaintiffs’ trespass-nuisance count on the grounds that defendants were immune. This Court reviews questions of governmental immunity de novo. Pierce v City of Lansing, 265 Mich App 174, 176; 694 NW2d 65 (2005). Unless a statutory exception applies, a governmental agency is immune from tort liability when performing a governmental function. Johnson-McIntosh v Detroit, 266 Mich App 318, 322; 701 NW2d 179 (2005). In Pohutski v City of Allen Park, 465 Mich 675, 689-690; 641 NW2d 219 (2002), our Supreme Court concluded that the governmental immunity statute did not contain a trespass-nuisance exception to governmental immunity.
Nevertheless, plaintiffs argue that because they were only seeking equitable relief, Pohutski did not apply. To support their position, plaintiffs rely on Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 152 n 5; 422 NW2d 205 (1988), overruled by Pohutski, supra at 679; Li v Feldt (After Second Remand), 439 Mich 457, 468-470; 487 NW2d 127 (1992) (Li II); and House Speaker v Governor, 195 Mich App 376, 385; 491 NW2d 832 (1992), rev’d 443 Mich 560 (1993). In the lead opinion’s discussion of public nuisance in Hadfield, supra at 152 n 5, Justice BRICKLEY mentioned, “Generally, we do not view actions seeking only equitable relief, such as abatement or injunction, as falling within the purview of governmental immunity.” Interpreting Justice BRICKLEY’s opinion in Hadfield, Chief Justice CAVANAGH stated in Li II:
[Attorney General ex rel] Wyoming Twp [v Grand Rapids, 175 Mich 503; 141 NW 890 (1913)] and Trowbridge [v City of Lansing, 237 Mich 402; 212 NW 73 (1927)] do not support the existence of a public nuisance exception. In the first place, both cases involved plaintiffs seeking only prospective equitable relief in the form, of abatement, to which this Court, in both cases, found they were entitled. As Justice Brickley correctly noted in Hadfield, such cases do not even fall within the purview of governmental immunity and cannot properly be cited in that context.... The distinction between the government’s liability for prospective equitable relief and its liability for retrospective damages or compensation, and the principle that the former kind of liability is generally not barred by sovereign immunity, are fundamental to sovereign immunity law. [Li II, supra at 468-469.]
Pohutski did not specifically address whether a trespass-nuisance action that merely seeks abatement of the nuisance is barred by governmental immunity. Instead, the Court clearly stated that MCL 691.1407 did not permit a trespass-nuisance exception to governmental immunity. Pohutski, supra at 678-679. In doing so, the Court relied on the plain meaning of the statute. Id. at 683-685. MCL 691.1407(1) provides:
Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
The plain language of the statute does not limit the immunity from tort liability to liability for damages. As noted in Pohutski, supra at 689, governmental immunity is to be broadly construed, while exceptions to immunity are to be narrowly construed. To construe the statute as plaintiffs urge in the instant case would be to construe governmental immunity narrowly. Moreover, such a construction would judicially impose a term into the statute that the Legislature did not provide, which is not permitted. Polkton Charter Twp v Pellegrom, 265 Mich App 88, 103; 693 NW2d 170 (2005).
In addition, the decisions in both Hadfield and Li II — with respect to whether a trespass-nuisance action that merely seeks abatement of the nuisance is barred by governmental immunity — were plurality opinions. A plurality opinion of the Supreme Court, in which the reasoning is not supported by a majority of the justices, is not binding on this Court. Burns v Olde Discount Corp, 212 Mich App 576, 582; 538 NW2d 686 (1995). Moreover, Justice GRIFFIN, in rejecting the reasoning of the lead opinion in Li II, supra at 484, adhered to his previous position in Li v Feldt (After Remand), 434 Mich 584, 596; 456 NW2d 55 (1990) (Li I). The Court in Pohutski, supra at 688, adopted Justice Griffin’s opinion in Li I. Hence, the Supreme Court impliedly rejected the reasoning of the lead opinion in Li II. Therefore, unless an exception to immunity is found in the act itself, plaintiffs’ nuisance claim must fail. MCL 691.1417(2) provides:
A governmental agency is immune from tort liability for the overflow or backup of a sewage disposal system unless the overflow or backup is a sewage disposal system event and the governmental agency is an appropriate governmental agency. Sections 16 to 19 abrogate common law exceptions, if any, to immunity for the overflow or backup of a sewage disposal system and provide the sole remedy for obtaining any form of relief for damages or physical injuries caused by a sewage disposal system event regardless of the legal theory.
The plain language of the statute includes the drains at issue here in the definition of “sewage disposal system.” MCL 691.1416(j). Therefore, the statute is applicable to the instant case, and defendants are immune unless the backup would be considered a sewage disposal system event (event). An event is the backup of a sewage disposal system onto real property, MCL 691.1416(k), which is precisely what plaintiffs in the instant case were complaining of. Although MCL 691.1416(k) contains several exceptions to the definition of an event, none of these exceptions applies. Hence, because the backup was considered an event, defendants were not immune if they were appropriate governmental agencies.
Because the village was not discharging into the Jacobs Lake Drain at the time of the instant suit, the village did not qualify as an appropriate governmental agency. MCL 691.1416(h). The property owners testified about damage to property that occurred upstream of the Grand River Intercounty Drainage District. Therefore, the Grand River Intercounty Drainage Board did not qualify as an appropriate governmental agency because it did not own, operate, or discharge into the portion of the sewage disposal system that purportedly caused the damage. MCL 691.141603). Although the Ingham County Drain Commissioner and the Jacobs Lake Drain District arguably qualified as appropriate governmental agencies, plaintiffs’ suit could not survive summary disposition under MCL 691.1417(3) and (4) on the basis of the submitted proofs. MCL 691.1417(3) and (4) provide in relevant part:
(3) If a claimant, including a claimant seeking noneconomic damages, believes that an event caused property damage or physical injury, the claimant may seek compensation for the property damage or physical injury from a governmental agency if the claimant shows that all of the following existed at the time of the event:
(d) The governmental agency, having the legal authority to do so, failed to take reasonable steps in a reasonable amount of time to repair, correct, or remedy the defect.
(4) In addition to the requirements of subsection (3), to obtain compensation for property damage or physical injury from a governmental agency, a claimant must show both of the following:
(b) The claimant complied with section 19.
There was no evidence that the Ingham County Drain Commissioner or the Jacobs Lake Drain District had the legal authority to repair a defect to a drain that was located in Jackson County. Moreover, there was no indication that plaintiffs complied with MCL 691.1419, which required plaintiffs to notify defendants of the damage in writing within 45 days after the damage occurred or should have been discovered. Because plaintiffs were unable to meet their burden of proof, summary disposition was properly granted, albeit on different grounds. Hess v Cannon Twp, 265 Mich App 582, 596; 696 NW2d 742 (2005).
Affirmed.
“Drain” is defined by MCL 280.3 as follows:
The word “drain”, whenever used in this act, shall include the main stream or trunk and all tributaries or branches of any creek or river, any watercourse or ditch, either open or closed, any covered drain, any sanitary or any combined sanitary and storm sewer or storm sewer or conduit composed of tile, brick, concrete, or other material, any structures or mechanical devices, that will properly purify the flow of such drains, any pumping equipment necessary to assist or relieve the flow of such drains and any levee, dike, barrier, or a combination of any or all of same constructed, or proposed to be constructed, for the purpose of drainage or for the purification of the flow of such drains, but shall not include any dam and flowage rights used in connection therewith which is used for the generation of power by a public utility subject to regulation by the public service commission.
Both Hadfield and Li II involved actions for damages rather than actions solely seeking equitable relief.
3 Li II involved a suit against the city of Ann Arbor and a suit against the city of Jackson. In Pohutski, supra at 682-684, the Supreme Court distinguished between sovereign immunity and governmental immunity, indicating that sovereign immunity applied only to the state, not to lesser forms of government. Thus, it is questionable whether the reasoning in Li II may be applied to lesser forms of government.
4 “Sewage disposal system” is defined as
all interceptor sewers, storm sewers, sanitary sewers, combined sanitary and storm sewers, sewage treatment plants, and all other plants, works, instrumentalities, and properties used or useful in connection with the collection, treatment, and disposal of sewage and industrial wastes, and includes a storm water drain system under the jurisdiction and control of a governmental agency. [MCL 691.1416(j).]
5 A “sewage disposal system event” is defined by MCL 691.1416(k) as
the overflow or backup of a sewage disposal system onto real property An overflow or backup is not a sewage disposal system event if any of the following was a substantial proximate cause of the overflow or backup:
(¿) An obstruction in a service lead that was not caused by a governmental agency.
(ii) A connection to the sewage disposal system on the affected property....
(Hi) An act of war ... or an act of terrorism.
MCL 691.1416(i) defines “service lead” as “an instrumentality that connects an affected property, including a structure, fixture, or improvement on the property, to the sewage disposal system and that is neither owned nor maintained by a governmental agency.”
MCL 691.1416(0 defines “substantial proximate cause” as “a proximate cause that was 50% or more of the cause of the event and the property damage or physical injury.”
6 “Appropriate governmental agency” is defined as “a governmental agency that, at the time of a sewage disposal system event, owned or operated, or directly or indirectly discharged into, the portion of the sewage disposal system that allegedly caused damage or physical injury.” MCL 691.1416(b).
7 The last part of MCL 691.1417(2) dispels any nuisance claim for damages, but does not address claims for injunctive relief. | [
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SAAD, J.
Plaintiff, Board of Trustees of the Policemen and Firemen Retirement System of the City of Detroit (Board), appeals the trial court’s grant of summary disposition to defendant, city of Detroit. We reverse.
I. FACTS AND PROCEDURAL HISTORY
The Board is responsible for the general administration, management, and operation of the Policemen and Firemen Retirement System, which provides retirement and death benefits to active and retired uniformed city employees, their families, and beneficiaries. According to the Board’s complaint, the retirement system currently provides benefits to nearly 14,000 Detroit employees and retirees and has assets of approximately $3 billion. Several Detroit officials and employees sit on the Board, including the mayor or his representative, a city council member, the city treasurer, the police chief, the fire commissioner, three firefighters, and three police officers.
Part of the Board’s responsibilities is to ensure that the retirement system is properly funded. Accordingly, the Board, after consultation with an actuary, determines the amount of Detroit’s annual pension contribution. The plan actuary calculates plan assets and liabilities to determine whether the plan is overfunded or underfunded. The annual contribution Detroit must make to the plan includes present service cost, plus a credit or additional payment depending on whether the plan is overfunded or underfunded.
The 2004 plan was underfunded and, therefore, one component of the pension contribution is the amount of time necessary for Detroit to meet the system’s unfunded accrued liabilities. Logically, the amount of time permitted to satisfy the accrued liabilities, also known as the amortization period, affects the amount Detroit is obligated to contribute to the plan each year. In March 2004, the Board, by a six-to-five vote, adopted a 14-year amortization period to calculate Detroit’s annual contribution to finance the unfunded accrued pension liabilities. However, Detroit maintained that a 20-year amortization period should apply under a local ordinance, notwithstanding that Detroit never followed the ordinance in the past and the Board had set the amortization period for many years.
On June 4, 2004, the Board filed a complaint against Detroit and sought a declaratory judgment “that it has the right to determine the time period for the financing of unfunded accrued pension liabilities.” Thereafter, the Board filed a motion for summary disposition under MCR 2.116(C)(10) and argued that, under Michigan law, the Board has the authority to determine the amortization period and that Detroit must abide by its recommendation and pay the amount of pension contribution calculated by the Board. Detroit responded and argued that a Detroit ordinance controls the issue and that it permits the city to use a 20-year amortization period. Accordingly, Detroit asked the trial court to grant it summary disposition under MCR 2.116(1)(2). After oral argument, the trial court issued a written opinion and order that granted summary disposition to Detroit under MCR 2.116(I)(2). For the reasons articulated below, we reverse the trial court’s decision and hold that the Board has the authority to set the amortization period.
II. STANDARD OP REVIEW AND APPLICABLE LAW
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Scott v Farmers Ins Exch, 266 Mich App 557, 560; 702 NW2d 681 (2005). As our Supreme Court recently reiterated in Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 721; 691 NW2d 1 (2005):
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). The trial court must consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Maiden, supra at 120. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996).
“The trial court properly grants summary disposition to the opposing party under MCR 2.116(1) (2) if the court determines that the opposing party, rather than the moving party, is entitled to judgment as a matter of law.” Washburn v Michailoff, 240 Mich App 669, 672; 613 NW2d 405 (2000).
This case also requires the interpretation of a statute and a city ordinance. “This Court. . . reviews questions of statutory interpretation de novo.” Local Area Watch v Grand Rapids, 262 Mich App 136, 142; 683 NW2d 745 (2004). This Court also reviews “a lower court’s interpretation of the meaning of an ordinance de novo.” Warren’s Station, Inc v City of Bronson, 241 Mich App 384, 388; 615 NW2d 769 (2000).
Const 1963, art 9, § 24 provides that “[t]he accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.” The Board relies on MCL 38.1140m to argue that the Legislature conferred on it the power to determine the amortization period to finance unfunded accrued pension liabilities. The statute provides:
The governing board vested with the general administration, management, and operation of a system or other decision-making body that is responsible for implementor tion and supervision of any system shall confirm in the annual actuarial valuation and the summary annual report required under section 20h(2) that each plan under this act provides for the payment of the required employer contribution as provided in this section and shall confirm in the summary annual report that the system has received the required employer contribution for the year covered in the summary annual report. The required employer contribution is the actuarially determined contribution amount. An annual required employer contribution in a plan under this act shall consist of a current service cost payment and a payment of at least the annual accrued amortized interest on any unfunded actuarial liability and the payment of the annual accrued amortized portion of the unfunded principal liability. For fiscal years that begin before January 1, 2006, the required employer contribution shall not be determined using an amortization period greater than 40 years. For years that begin after December 31, 2005, the required employer contribution shall not be determined using an amortization period greater than 30 years. In a plan year, any current service cost payment may be offset by a credit for amortization of accrued assets, if any, in excess of actuarial accrued liability. A required employer contribution for a plan administered under this act shall allocate the actuarial present value of future plan benefits between the current service costs to be paid in the future and the actuarial accrued liability. The governing board vested with the general administration, management, and operation of a system or other decision-making body of a system shall act upon the recommendation of an actuary and the board and the actuary shall take into account the standards of practice of the actuarial standards board of the American academy of actuaries in making the determination of the required employer contribution. [MCL 38.1140m (emphasis added).]
At issue on appeal is whether the above statute conflicts with Detroit City Code, § 54-2-6(c), which provides:
The City’s annual contribution, expressed as a percent of active member compensations, to finance any unfunded accrued service pension liabilities shall be determined by dividing such unfunded accrued service pension liabilities by one percent of the present value of future compensations payable during the period of future years. Such period of future years shall be thirty years for actuarial valuation as of June 30,1974, decreasing one year at each subsequent June 30 until a twenty year period is reached, which twenty year period shall then be used in each subsequent actuarial valuation.
III. ANALYSIS
As noted, the Board maintains that the trial court erred because, under MCL 38.1140m, the Board has the authority to adopt the amortization period to finance unfunded accrued pension liabilities. In contrast, Detroit argues that MCL 38.1140m merely places caps on the amortization periods starting in 2006, but that “[i]t does not give the Board the right to decide on the amortization period.” We disagree.
The statute provides that the Board, acting on the recommendation of an actuary, makes “the determination of the required employer contribution.” MCL 38.1140m. Further, the statute explicitly provides that the Board “shall confirm” that the plan “provides for the payment of the required employer contribution” and “shall confirm” that the system receives “the required employer contribution . . . .” Id. “The word 'shall’ is unambiguous and is used to denote mandatory, rather than discretionary, action.” STC, Inc v Dep’t of Treasury, 257 Mich App 528, 537; 669 NW2d 594 (2003). Thus, the statutory language is unequivocal that the Board determines the amount the employer (Detroit) contributes annually to the retirement system and that the employer, in turn, is “required” to make the contribution. The Board’s determination also necessarily includes the amount of time in which Detroit must pay the unfunded accrued pension liabilities because the period directly affects the amount Detroit must contribute to the plan each year.
As noted, MCL 38.1140m states that the Board is to determine the annual contribution, which “consists] of a current service cost payment. . . and the payment of the annual accrued amortized portion of the unfunded principal liability.” Thus, the statute contemplates that the Board, through an actuary, shall determine the annual payment, which includes a determination of the “amortized portion of the unfunded principal liability.” Id. Moreover, the next portion of the statute provides:
For fiscal years that begin before January 1, 2006, the required employer contribution shall not be determined using an amortization period greater than 40 years. For years that begin after December 31, 2005, the required employer contribution shall not be determined using an amortization period greater than 30 years. [Id.]
A plain reading of this section, in conjunction with the rest of MCL 38.1140m, compels the conclusion that, while the amortization period is capped at no greater than 30 years at the end of 2005, the actuary and the Board have discretion, within that limit, to determine the appropriate amortization period. Indeed, the above language evidences the Legislature’s intent to grant the Board the authority to determine the amortization period because it included limits (caps) in its grant of authority to the Board to determine the employer’s annual contribution. Further, it is self-evident that, because the Board has the responsibility to determine the employer’s annual contribution to the system and to ensure that the system is adequately funded, an integral element of that calculation is how much the city must annually contribute to pay down its unfunded liabilities. Again, how long those liabilities are amortized, according to the calculations of the actuary, directly affects the adequacy of the system funding arid the amount Detroit must pay each year.
Because MCL 38.1140m authorizes the Board to set the annual amortization periods, the statute conflicts with Detroit City Code, § 54-2-6, which dictates that, after 1974, the amortization period shall decrease one year each year from 30 years to 20 years and that, once the period reaches 20 years, the amortization rate shall remain at 20 years. Therefore, under the ordinance, by 1984, the amortization period would be 20 years and remain 20 years regardless of whether the Board and an actuary conclude that Detroit’s contribution should be different.
Detroit argues that the statute and the ordinance may arguably be read in conjunction to conclude that, while it is up to the Board to determine the amount Detroit owes based, in part, on the amortized portion of the unfunded principal liability, the city may determine the amortization period, as long as it complies with the Board’s determination of how much it owes to cover the “amortized portion” of the unfunded liability. In other words, according to the city, Detroit may decide that its amortization period is 20 years if it complies with the caps in MCL 38.1140m and the Board’s determination of how much it owes, including the current service cost, the amortized interest on unfunded actuarial liability, and the amortized portion of the unfunded principal liability.
Again, however, the Detroit ordinance directly interferes with the Board’s authority to decide the annual contribution, which includes a determination of the amortization period. As this Court recently explained in Shelby Charter Twp v Papesh, 267 Mich App 92, 105-106; 704 NW2d 92 (2005):
State law preempts a municipal ordinance where the ordinance directly conflicts with a state statute or the statute completely occupies the field that the ordinance attempts to regulate. Rental Prop Owners Ass’n of Kent Co v Grand Rapids, 455 Mich 246, 257; 566 NW2d 514 (1997). A direct conflict exists when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits. People v Llewellyn, 401 Mich 314, 322 n 4; 257 NW2d 902 (1977).
The ordinance clearly conflicts with the statute, and the statute prevails over the ordinance. The Legislature granted the Board the authority to determine the annual plan contributions, which necessarily includes the annual amortization period, and the statute granting that authority preempts the ordinance. Accordingly, the trial court erred when it granted summary disposition to Detroit. We reverse the trial court’s decision and grant the Board a declaratory judgment that it has the authority under applicable law to set the amortization period.
Reversed.
The record also reflects that, until now, Detroit has not followed or relied on the ordinance to limit its financing to a 20-year amortization period. The Board attached to its motion for summary disposition the affidavit of board member Walter Stampor, who stated that, since 1976, the Board has adopted the amortization periods for Detroit. According to Stampor’s statement and accompanying chart of amortization rates, the Board adopted a 25-year amortization period in 1992, which descended one year in each subsequent year. Accordingly, by 2003, the amortization period as adopted by the Board was 14 years. Stampor further stated that, until 2003, Detroit did not object to, and regularly complied with, the Board’s descending amortization periods. As explained here, had Detroit enforced Detroit City Code, § 54-2-6, the amortization period would have been 20 years throughout that period. Other than a copy of MCL 38.1140m, Detroit did not attach any other evidence to its response to the Board’s motion for summary disposition. Accordingly, the evidence clearly indicates that Detroit at least acquiesced to the Board’s decreasing amortization period recommendations from 1992 to 2002.
2 Section 20h(2), MCL 38.1140h(2), provides:
Except as otherwise provided in subsection (4), a system shall have an annual actuarial valuation with assets valued on a market-related basis. A system shall prepare and issue a summary annual report. The system shall make the summary annual report available to the plan participants and beneficiaries and the citizens of the political subdivision sponsoring the system. The summary annual report shall include all of the following information:
(a) The name of the system.
(b) The names of the system’s investment fiduciaries.
(c) The system’s assets and liabilities.
(d) The system’s funded ratio.
(e) The system’s investment performance.
(f) The system’s expenses.
Detroit City Code, § 54-43-4(b) also states:
The board of trustees shall annually ascertain and report to the mayor and the council the amount of contributions due the retirement system by the city, and the city council shall appropriate and the city shall pay such contributions to the retirement system during the ensuing fiscal year....
Detroit City Code, § 54-2-7 similarly provides:
Based upon the provisions of this ordinance, including any amendments, the Board of Trustees shall compute the City’s annual contributions, expressed as a percent of active member compensation, to the retirement system for the fiscal year beginning July 1, 1975, using actuarial evaluation data as of June 30, 1974, and for each subsequent fiscal year using actuarial evaluation data as of the June 30 date which is a year and a day before the first day of such fiscal year. The Board shall report to the Mayor and to the city council the contribution percents so computed and such contribution percent shall be used in determining the contribution dollars to be appropriated by the city council and paid to the retirement system.. ..
The trial court did not agree that the statute and the ordinance conflict. As the trial court observed:
MCLA 38.1140m sets a ceiling on the amortization period for determining employer contributions: 40 years for fiscal years that begin before January 1, 2006 and 30 years for years that begin after December 31, 2005. The ordinance sets a floor of twenty years for the amortization period. If, as [the Board] contends, the ordinance has the inherent flaw of allowing the City to “effectively determine its annual pension contribution,” thus potentially causing conflict in practice, it must be addressed legislatively.
Plaintiffs actuary, who is mandated pursuant to MCLA 38.1140m to make recommendations to the Board taking into account actuarial standards of practice, agrees that the City “reserved the right to determine annual decrement probability and salary factors and the amortization term for financing unfunded accrued service pension liabilities.” While the actuary finds that Ordinance 76-H, §54-43-4, provides the Board with authority “to adopt, from time to time, assumptions as to future financial experiences,” he harmonizes the ordinance provisions by reasoning that while the Board of Trustees is given authority to decide financial assumptions, the City Council retained authority to decide, inter aha, the amortization term relative to unfunded accrued service pension liabilities. Noting that he does not believe such a “restriction/reservation” is advisable, the actuary concludes that “[a]n ordinance change is required to use an amortization period other than twenty years regarding financing of unfounded [sic] accrued service pension liabilities.”
The trial court’s reasoning in the first paragraph is incorrect because MCL 38.1140m not only caps the amortization periods permitted for retirement systems, it provides that it is the Board’s responsibility to determine Detroit’s annual contribution, which would arguably include a determination of the amortization period.
Further, in the second paragraph above, the trial court erroneously attributes the quoted statements to the Board’s actuary. According to the trial court, the actuary on whom the Board must rely in making its determination of the employer contribution under MCL 38.1140m concluded that the statute and ordinance should be read together and that the correct interpretation gives the Detroit City Council the authority to decide the amortization period. As the Board points out in its appeal brief, the opinions the trial court attributed to the actuary were, in fact, those of a lawyer who was asked for a legal opinion, not those of the actuary charged with advising the Board. Furthermore, to the extent the trial court’s opinion suggest otherwise, the Detroit City Code, § 54-2-6 does not permit the city council any discretion to decide the amortization period; rather, the ordinance dictates that the amortization period shall remain at 20 years. Accordingly, the trial court erred in its interpretation of the evidence and the ordinance.
In light of our decision, we need not address the Board’s equitable estoppel and laches claims. | [
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Neff, J.
In this first-party no-fault insurance action, defendant appeals as of right the trial court’s order granting plaintiffs motion for summary disposition regarding liability. We affirm.
I. FACTS
Flaintiff filed this action for no-fault benefits under his automobile insurance coverage with defendant in surer after he was injured in an accident involving a grain delivery truck. On May 31, 2002, Thomas Lee Passmore, a delivery truck driver for Litchfield Grain Company, arrived to deliver animal feed at a farm where plaintiff was employed. Passmore backed the truck up to a silo and activated the truck’s auger system to unload the feed. Passmore realized that the feed was not dropping onto the auger system, which had apparently become clogged. Plaintiff was assisting Passmore in unclogging the truck’s auger system when he was injured. As plaintiff reached through an inspection door on the truck to clean the animal feed from the augers, Passmore activated the augers without warning, apparently unintentionally. Plaintiff lost his right index finger and a portion of his right middle finger.
The trial court granted plaintiffs motion for summary disposition on the issue of liability. The court found that plaintiffs injuries were covered under the no-fault act, MCL 500.3101 et seq., pursuant to the parked-vehicle exceptions, MCL 500.3106(1). Defendant contends that the trial court erred in granting summary disposition to plaintiff.
II. STANDARD OP REVIEW
We review de novo a trial court’s grant or denial of summary disposition under MCR 2.116(0(10). Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). A motion under MCR 2.116(0(10) tests the factual sufficiency of a claim. Id. at 163. The court must consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in a light most favorable to the party opposing the motion. Id. at 164. If the evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of law. Id.
III. ANALYSIS
Defendant argues that plaintiffs injury is not covered by the no-fault act because it did not arise out of the use of a motor vehicle “as a motor vehicle.” MCL 500.3105(1). We disagree. The starting point for our analysis under the no-fault act is MCL 500.3105(1). Rice v Auto Club Ins Ass’n, 252 Mich App 25, 33; 651 NW2d 188 (2002). Section 3105(1) provides:
Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter. [Emphasis added.]
Under § 3105(1), the analysis for determining whether no-fault benefits are available involves two broad steps. Rice, supra at 33. First, it is necessary to determine “whether the injury at issue is covered,” i.e., whether it is “accidental,” “bodily,” and “aris[es] out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.” Id. Second, it is necessary to determine whether the injury is excluded under other provisions in the no-fault act and whether an exception to an exclusion would save the claim. Id.
In the present case it is undisputed that the injury sustained by plaintiff was both accidental and bodily, consisting of the accidental severance of the right index finger and a substantial portion of the right middle finger. Thus, it is necessary to determine whether plaintiffs injuries arose out of “the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle . ...” Id. (emphasis added). If so, we must then determine whether plaintiffs injury is excluded under other applicable provisions of the no-fault act. Id.
“[Wlhether an injury arises out of the use of a motor vehicle ‘as a motor vehicle’ under § 3105 turns on whether the injury is closely related to the transportational function of motor vehicles.” McKenzie v Auto Club Ins Ass’n, 458 Mich 214, 225-226; 580 NW2d 424 (1998). While a vehicle need not be in motion at the time of an injury in order for the injury to “arise out of the use of a motor vehicle as a motor vehicle,” McKenzie, supra at 219 n 6, the phrase “as a motor vehicle” does require a general determination of whether the vehicle in question was being used, maintained, or operated for transportational purposes, id. at 219.
Contrary to defendant’s argument, we disagree that plaintiffs injury did not arise out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle under the analysis set forth in McKenzie. The circumstances in this case are unlike those circumstances identified in McKenzie as rare instances “when a motor vehicle is used for other purposes, e.g., as a housing facility of sorts, as an advertising display (such as at a car dealership), as a foundation for construction equipment, as a mobile public library, or perhaps even when a car is on display in a museum.” Id. at 219. The vehicle involved is a delivery truck, and it was being used as such when the injury occurred. Accordingly, plaintiffs injury is closely related to the motor vehicle’s transportational function, and therefore arose out of the operation, ownership, maintenance, or use of a motor vehicle “as a motor vehicle” pursuant to McKenzie, supra at 220.
With regard to the second step in the analysis under § 3105(1), Rice, supra at 33, injuries arising out of contact with parked vehicles are generally not covered by the no-fault act. MCL 500.3106(1). However, an injury related to a parked vehicle is compensable if one of the following exceptions applies:
(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
(b) Except as provided in subsection (2), the injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used, or property being lifted onto or lowered from the vehicle in the loading or unloading process.
(c) Except as provided in subsection (2), the injury was sustained by a person while occupying, entering into, or alighting from the vehicle. [MCL 500.3106(1).]
Plaintiff contends that § 3106(l)(b) applies because his injuries were “a direct result of physical contact with equipment permanently mounted on the [grain delivery] vehicle, while the equipment was being operated or used ....” MCL 500.3106(l)(b). We agree.
It is uncontested that the grain delivery truck’s auger system, used for unloading, was “permanently mounted” on the grain delivery truck. It is further uncontested, as shown by the documentary evidence submitted to the trial court, that Passmore activated the vertical auger momentarily while plaintiffs right hand was reaching through the inspection door on the rear of the delivery vehicle. Finally, neither party disputes the fact that plaintiffs injuries were caused by physical contact with the grain truck’s augers when they were activated. Because the material facts were not in dispute regarding whether plaintiffs injuries were “a direct result of physical contact with equipment permanently mounted on the [grain delivery] vehicle, while the equipment was being operated or used,” the trial court properly found that plaintiffs claim for no-fault benefits fell within the second parked-vehicle exception of § 3106(l)(b).
Defendant argues that this case is factually analogous to Bialochowski v Cross Concrete Pumping Co, 428 Mich 219; 407 NW2d 355 (1987), which was expressly-overruled in McKenzie, supra at 223-224. In Bialochowski, our Supreme Court found that an injury sustained while a cement truck was pumping concrete had arisen “out of the use of a motor vehicle as a motor vehicle.” Bialochowski, supra at 228-229. However, the McKenzie Court criticized the analysis in Bialochowski, noting that the cement truck was not being used for a transportational function at the time of the injury. McKenzie, supra at 224-226.
Defendant suggests that because the grain delivery truck in the case at bar was similarly unloading cargo, plaintiffs injury must not have arisen out of the use of the grain truck “as a motor vehicle” under the reasoning of McKenzie. However, as discussed above, the circumstances in this case are not akin to those rare instances identified in McKenzie in which a motor vehicle is not being used as a motor vehicle. Further, defendant’s argument disregards a fundamental difference between Bialochowski and the case at bar. Before the Bialochowski cement truck could begin unloading concrete, the vehicle had to be stabilized, effectively transforming the cement truck from a motor vehicle into a platform for construction equipment. Therefore, at the time of the injury in Bialochowski, the cement truck was no longer functioning “as a motor vehicle,” but rather as a foundation for construction equipment. In contrast, the grain truck in the case at bar never lost its essential character as a motor vehicle. At all times it remained drivable, and no transformation or mechanical alteration was necessary before it could begin unloading grain. The facts of this case are therefore distinguishable from those present in Bialochowski.
W. MCKENZIE INTERPRETATION OF THE PARKED-VEHICLE EXCEPTIONS
While we recognize that McKenzie controls the analysis of no-fault coverage in this case, we conclude that the McKenzie analysis is at odds with the no-fault statutory scheme.
MCL 500.3105(1) provides:
Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.
MCL 500.3106, which addresses parked motor vehicles and the recovery of personal injury protection (PIP) benefits, provides in part:
(1) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:
(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
(b) Except as provided in subsection (2), the injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used, or property being lifted onto or lowered from the vehicle in the loading or unloading process.
(c) Except as provided in subsection (2), the injury was sustained by a person while occupying, entering into, or alighting from the vehicle.
Plaintiffs injuries fall squarely into § 3106(l)(b). The unintentional injuries were caused by physical contact with the grain truck’s augers when they were activated. As such, plaintiffs injuries were “a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used[.]” MCL 500.3106(l)(b).
In determining the parameters of no-fault benefits, we must examine the express provisions of the no-fault act. Reading the plain language of MCL 500.3106, a cogent argument can be made that if any of the three parked-vehicle exceptions applies in a given case, the injury, by statutory mandate, does arise out of the ownership, operation, maintenance, or use of the parked vehicle as a motor vehicle; therefore, PIP benefits would be recoverable. If this were the approach intended by the Legislature, there could be no legitimate dispute that plaintiff is entitled to PIP benefits.
The primary task in construing a statute is to discern and give effect to the intent of the Legislature. Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275 (2004). The words contained in a statute provide the most reliable evidence of the Legislature’s intent. Id. at 549. In ascertaining legislative intent, this Court gives effect to every word, phrase, and clause in the statute. Id. We must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme. Id. This Court must avoid a construction that would render any part of a statute surplusage or nugatory. Bageris v Brandon Twp, 264 Mich App 156, 162; 691 NW2d 459 (2004). “ ‘The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended.’ ” Shinholster, supra at 549 (citation omitted). If the wording or language of a statute is unambiguous, the Legislature is deemed to have intended the meaning clearly expressed, and we must enforce the statute as written. Id. “A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002).
In keeping with these rules of statutory interpretation, the historical view of the no-fault provisions under § 3105 and § 3106 is that § 3106 establishes an analytical framework for the parked-vehicle exceptions that is independent of § 3105. Only recently has the Court embraced a conceptual scheme that treats § 3105 as a threshold requirement for consideration of the parked-vehicle exceptions, which now has come to frill fruition in the McKenzie “transportational function” test. McKenzie, supra at 225-226.
In Winter v Automobile Club of Michigan, 433 Mich 446, 448; 446 NW2d 132 (1989), the Michigan Supreme Court, in providing an overview of the case and its holding, stated:
In this insurance case, the carrier appeals from a determination that the no-fault act covers an accidental injury to plaintiff which occurred when a slab of sidewalk, raised by a tow truck, slipped off its hook and fell on plaintiffs hand. Because the vehicle was “parked” within the meaning of § 3106(1) at the time of the accident, and none of the § 3106(1) exceptions is applicable, plaintiff is not entitled to no-fault benefits, and we therefore reverse.
In Winter, as in this case, the defendant argued that the tow truck was not being used “as a motor vehicle” within the meaning of MCL 500.3105(1), but rather it was being used as a stationary crane. Id. at 451. Our Supreme Court, sharpening the focus on the proper analysis, stated:
In limiting no-fault benefits to injuries “arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle,” the Legislature realized that it would be inherently difficult to determine when a parked vehicle is in use “as a motor vehicle.” Accordingly, the Legislature specifically described in subsections (a)-(c) of § 3106(1) the limited circumstances when a parked vehicle is being used “as a motor vehicle.” Thus it is apparent that if a vehicle is “parked” coverage otherwise available under § 3105(1) is qualified by the provisions of § 3106(1). In the instant case, because the tow truck was parked, coverage is excluded by § 3106(1) unless one of its exceptions is applicable. [Winter, supra at 457-458 (emphasis added in the second sentence).]
The Court concluded that none of the exceptions set forth in MCL 500.3106(1) applied to the facts of the case; therefore, the tow truck was not being “used as a motor vehicle” within the meaning of § 3105(1), and the plaintiff was not entitled to PIP benefits. Winter, supra at 460-461. Winter suggests that if any parked-vehicle exception applies to a given set of facts, the motor vehicle was by statutory mandate being “used as a motor vehicle.” This ruling is consistent with the statutory language.
The Supreme Court subsequently addressed no-fault coverage of a parked vehicle, somewhat altering the analysis applied in Winter. In Putkamer v Transamerica Ins Corp of America, 454 Mich 626; 563 NW2d 683 (1997), the plaintiff was injured when she slipped and fell on ice as she was getting into a parked motor vehicle, and the issue presented was whether she was entitled to PIP benefits under the no-fault act. Reversing the decisions of the circuit court and this Court, the Supreme Court held, “On the undisputed facts of this case, plaintiff established as a matter of law that her injury arose from the use of her parked motor vehicle as a motor vehicle under the no-fault act.” Id. at 627. The Court acknowledged MCL 500.3105, but then proceeded directly to MCL 500.3106 because a parked vehicle was at issue. Id. at 631-632. The Court, citing Winter, noted that “[w]here the motor vehicle is parked, the determination whether the injury is covered by the no-fault insurer generally is governed by the provisions of subsection 3106(1) alone. There is no need for an additional determination whether the injury is covered under subsection 3105(1).” Putkamer, supra at 632-633 (citations omitted). Although Putkamer found it unnecessary to engage in any analysis under MCL 500.3105, the following three-step analysis was required under MCL 500.3106:
In summary, where a claimant suffers an injury in an event related to a parked motor vehicle, he must establish that the injury arose out of the ownership, operation, maintenance, or use of the parked vehicle by establishing that he falls into one of the three exceptions to the parking exclusion in subsection 3106(1). In doing so under § 3106, he must demonstrate that (1) his conduct fits one of the three exceptions of subsection 3106(1); (2) the injury arose out of the ownership, operation, maintenance, or use of the parked motor vehicle as a motor vehicle-, and (3) the injury had a causal relationship to the parked motor vehicle that is more than incidental, fortuitous, or but for. [.Putkamer, supra at 635-636 (emphasis in original).]
Because there was no dispute that the plaintiff was getting into the vehicle with the intention of traveling to her brother’s home, the Court found, as a matter of law, that she was using the parked motor vehicle as a motor vehicle when she was getting into the car. Id. at 636.
A distinguishing feature between Winter and Putkamer is that the Winter Court indicated that if one of the parked-vehicle exceptions of § 3106(1) applied, it would automatically equate to a finding that the parked motor vehicle was indeed being used as a motor vehicle, which in turn meant that the plaintiff was entitled to PIP benefits; however, Putkamer required an independent determination whether the parked vehicle was being used as a motor vehicle, even if one of the parked-vehicle exceptions applied. McKenzie subsequently extended Putkamer by holding that the question “[w]hether an injury arises out of the use of a motor vehicle ‘as a motor vehicle’ turns on whether the injury is closely related to the transportational function of automobiles.” McKenzie, supra at 215.
McKenzie, decided a year after Putkamer, involved a claim for PIP benefits for injuries sustained when the plaintiff was nonfatally asphyxiated while sleeping in a camper/trailer attached to his pickup truck. The Court noted:
This case turns on whether plaintiffs injury, incurred while sleeping in a parked camper/trailer, arose out of the use of a motor vehicle “as a motor vehicle” as contemplated by § 3105. We are able to arrive at this ultimate question because all agree that this injury was occasioned while a person was occupying the vehicle as required by MCL 500.3106(l)(c). [McKenzie, supra at 216-217.]
Curiously, McKenzie cited Putkamer in a footnote in support of the above language, despite the fact that Putkamer never utilized § 3105 in its analysis concerning the parked motor vehicle. To the contrary, Putkamer expressly stated that the analysis was controlled by MCL 500.3106. Nonetheless, both McKenzie and Putkamer held that even if one of the parked-vehicle exceptions applies, it is necessary to determine whether the injury arose out of the use of a motor vehicle as a motor vehicle.
With respect to the determination whether a motor vehicle was being used as a motor vehicle, the McKenzie Court ruled that “the clear meaning of this part of the no-fault act is that the Legislature intended coverage of injuries resulting from the use of motor vehicles when closely related to their transportational function and only when engaged in that function.” McKenzie, supra at 220. Because the parked camper/trailer was being used as sleeping accommodations, the use was too far removed from the transportational function to constitute use of the vehicle “as a motor vehicle” at the time the injury occurred. Id. at 226.
In assessing McKenzie’s extended analysis in the context of previous decisions, the McKenzie Court noted that Putkamer had been correctly decided because “entering a vehicle in order to travel in it is closely related to the [vehicle’s] transportational function[.]” McKenzie, supra at 221. With regard to Winter, the Court stated:
The Winter Court’s holding turned on the fact that the truck was parked and none of the exceptions set forth in § 3106 applied. Accordingly, it was unnecessary to explicitly consider whether the injury arose out of the use of a motor vehicle “as a motor vehicle,” as opposed to some other use. However, this holding is nonetheless consistent with the approach posited here because the injury arose out of the use of a motor vehicle as a foundation for construction equipment and was not closely associated with the transportational function. [McKenzie, supra at 221.]
However, a straightforward reading of Winter shows that the Court would not have independently determined whether the tow truck was being used as a motor vehicle when the injury occurred even if the Court had found applicable one of the parked-vehicle exceptions of MCL 500.3106. The Winter Court indicated that if a parked-vehicle exception applied, it necessarily meant that the parked vehicle was being used as a motor vehicle given the statutory scheme. Winter, supra at 457-458. McKenzie essentially concurred in the result reached in Winter, but on the basis of reasoning not encompassed in the Winter Court’s analysis. McKenzie clearly does not permit a conclusion that PIP benefits are recoverable simply on the basis that one of the parked-vehicle exceptions applies to the facts of the case.
The McKenzie Court also addressed, and overruled, the Supreme Court’s decision in Bialochowski. With respect to Bialochowski, the McKenzie Court stated:
In Bialochowski, this Court concluded that an injury incurred while a cement truck was unloading its product arose out of the use of a motor vehicle as a motor vehicle. The Court stated at 228:
“Motor vehicles are designed and used for many different purposes. The truck involved in this case is a cement truck capable of pouring cement at elevated levels. Certainly one of the intended uses of this motor vehicle ... is to pump cement. The accident occurred while this vehicle was being used for its intended purpose. We hold that the phrase ‘use of a motor vehicle as a motor vehicle’ includes this use.”
We find this holding utterly antithetical to the language of § 3105. As discussed above, § 3105’s requirement that injuries arise out of the use of a motor vehicle “as a motor vehicle” clearly distinguishes use “as a motor vehicle” from other possible uses. Bialochowski eviscerates this distinction by holding that the use of the vehicle at issue to pump cement constitutes use “as a motor vehicle.” Obviously, motor vehicles are designed and used for various purposes as the Bialochowski Court noted. In fact, only in the context of various possible uses would a limitation to use “as a motor vehicle” be necessary. Where the Legislature explicitly limited coverage under § 3105 to injuries arising out of a particular use of motor vehicles — use “as a motor vehicle” — a decision finding coverage for injuries arising out of any other use, e.g., to pump cement, is contrary to the language of the statute. Accordingly, we are convinced that Bialochowski was wrongly decided.
Entirely apart from this direct criticism of Bialochowski, we do not think it constitutes adequate support for the dissent’s proposed rule that any intended use of a multipurpose vehicle constitutes use “as a motor vehicle.” [McKenzie, supra at 223-224.]
McKenzie’s analysis of MCL 500.3105 is contrary to the ruling in Putkamer, and to some degree the ruling in Winter, relative to its focus on the language of MCL 500.3106, which specifically addresses parked motor vehicles. Interestingly, the Bialochowski Court, like the McKenzie Court, also analyzed the case under § 3105 to determine whether the cement truck was being used as a motor vehicle at the time of injury and under § 3106, pursuant to which the Court found appli cable § 3106(l)(b), which is the provision at issue here. However, the Winter Court overruled Bialochowski to the extent that the latter could be read to mean that a determination whether § 3105(1) is fulfilled is to be made separately from a determination whether § 3106 is fulfilled. Winter, supra at 458 n 10. The Putkamer Court pointed out this fact when remarking that the analysis is confined to § 3106 when parked vehicles are at issue. Putkamer, supra at 633 n 6.
Despite the confusion created by the case law, because McKenzie dealt with injuries that were sustained while occupying a parked motor vehicle, which implicated § 3106(l)(c), and because McKenzie overruled Bialochowski, which specifically dealt with the subsection at issue here, § 3106(l)(b), it appears that the McKenzie “transportational function” test controls our analysis.
McKenzie, when addressing and overruling Bialochowski, did not acknowledge or reference the fact that Bialochowski applied § 3106(l)(b), and thus McKenzie did not confront, at least expressly, the inherent problem in reconciling the “transportational function” test with the plain language of § 3106(l)(b). Indeed, the general concept of applying a test that focuses on the transportational function of a vehicle when considering parked vehicles seems illogical and consequently is, for all practical purposes, unworkable. This is especially true in relation to § 3106(l)(b), which speaks of injuries resulting from physical contact with permanently mounted equipment, while the equipment is being operated, or injuries incurred during the loading or unloading process. This language necessarily entails situations where injuries arise from uses of the vehicle other than those uses related to the transportational function of the vehicle.
Because of the inherent inconsistency with the statutory language, the McKenzie analysis is suspect as a test for applying the parked-vehicle exceptions under § 3106. Given the practical difficulties in applying McKenzie and its eviscerating effect on MCL 500.3106, we urge that it be reconsidered by the Supreme Court or that the Legislature clarify the parked-vehicle exceptions.
V DISPOSITION
Summary disposition for plaintiff on the issue of no-fault liability was proper. In light of our disposition of this issue, we decline to reach any alternative arguments raised by plaintiff.
Affirmed.
Murphy, J., concurred.
Bialochowski involved a motorized, four-wheeled, cement truck, with a permanently attached thirty- to thirty-five-foot boom used to pump concrete up to elevated levels. Id. at 222-223. The plaintiff was injured when the concrete pump exploded, causing the boom to collapse on the plaintiff. Id. at 223. At the time of the accident, the truck was parked and stabilized. Id.
2 Section 3106(2) is not applicable here.
Subsections a, b, and c of § 3106(1).
Stating that “Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur,” MCL 500.3106(1), is arguably comparable to stating that “accidental bodily injury does arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle when any of the following occur.”
In examining § 3106(l)(b), and rejecting its applicability, the Court found that the plaintiff did not come into contact with the hook or winch of the truck; rather, he was injured when the cement slab fell from the hook onto his hand. Winter, supra at 460.
Winter was addressed in McKenzie, as we discuss later in this opinion in considering the specifics of McKenzie.
The McKenzie Court incorporated the three-step analysis for parked motor vehicles that was enunciated in Putkamer. McKenzie, supra at 217 n 3.
This Court in Rice, supra at 33-34, recognized this discrepancy and simply concluded that McKenzie retreated from Putkamer’s alternative analytical approach.
The Court found that the plaintiffs injury occurred as a result of his contact with the boom, which was permanently mounted on the truck, while the pump and boom were being operated or used to pump concrete. Bialochowski, supra at 229. | [
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] |
Per Curiam.
In this action involving the scope of the sport shooting ranges act (the Act), defendant Linwood-Bay Sportsman’s Club (Linwood-Bay), owner of land used for a sport shooting range, appeals as of right a judgment permanently enjoining Linwood-Bay “from building, continuing construction and/or using its proposed outdoor pistol and/or rifle range,” which the trial court entered following a bench trial. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff Fraser Township filed suit for an injunction to prevent Linwood-Bay from “operating an outdoor pistol or rifle range.” In a motion filed simultaneously, the township alleged that Linwood-Bay was impermissibly “proceeding with plans to construct an outdoor pistol or rifle range on Defendant’s property within Fraser Township.” Linwood-Bay opposed the injunction, arguing that the Act authorized its activities “notwithstanding contrary zoning” and that its activities were neither in violation of the zoning ordinances nor inherently dangerous.
At the hearing on the preliminary injunction, the parties agreed to allow Maple Leaf Golf Course to intervene as a plaintiff and did not object to Michigan United Conservation Clubs (MUCC) filing a brief amicus curiae. The trial court granted the preliminary injunction, precluding any outdoor pistol or rifle shooting and any further construction on the outdoor rifle range. The order permitted “[o]utdoor archery, skeet shooting, and trap shooting... as they are performed without pistols or rifles.” The order also permitted firing muzzle loading weapons, subject to later objections by either plaintiff.
Maple Leaf then filed its complaint, which included the following allegations:
6. Plaintiff has owned and operated [its course] for more than forty years at its present location. Many thousands of golfers utilize the golf course on an annual basis. At least three (3) of the holes are in harm’s way of a stray shooting from the range.
7. In June, 2001, a patron of the course was struck by a stray bullet. Other golfers have complained from time to time of bullets grazing through the course. Most recently, in august, 2003, [sic] no less than four golfers have indicated that bullets have whizzed past them or they’ve been in earshot of a ricocheting bullet. It would appear that these shots are coming from the use or misuse of the proposed new outdoor range.
Maple Leaf also alleged that Linwood-Bay’s range was both a nuisance and an attractive nuisance. After Linwood-Bay answered and counterclaimed against Maple Leaf, the trial court conducted a one-day bench trial and took the case under advisement. After trial, Linwood-Bay moved to enter stipulated facts by proposing an order with stipulations that its operations complied with the “generally accepted operations practices” (GAOP) referred to in the Act, that its outdoor range complied with GAOP “as constructed to date,” and that, if completed, “the outdoor range will be inspected by an NRA-RTTA [National Rifle Association Range Team Technical Advisor] to determine compliance with GAOP” The township filed an objection, but the proposed stipulations were eventually entered with the following handwritten stipulation added below the typed ones: “The Plaintiffs reserve any legal rights they may have to address future use and construction at Defendant’s site.”
When it issued its opinion, the trial court summarized both its factual findings from the trial and its conclusions of law, ruling “in favor of the plaintiffs and against the defendant,” and granting a permanent injunction against the defendant’s building, construction, or use of the proposed range. Linwood-Bay moved for reconsideration, but the trial court denied this motion. This appeal followed.
II. PREEMPTION
A. STANDARD OF REVIEW
At issue is the legal question whether the Act preempts all township regulation of sport shooting ranges or whether the Act merely bars nuisance actions based on noise and zoning regulations that are intended to stop sport shooting ranges from continuing activities that they were engaged in when the Act was passed. “We will not disturb the trial court’s findings of facts unless clearly erroneous.” “However, we review questions of law de novo.”
B. RAY TWP v B&BS GUN CLUB
The Act has not been the subject of extensive litigation at the appellate level. Indeed, there is only one published opinion concerning the Act, Ray Twp v B & BS Gun Club In that case, this Court affirmed the trial court’s holding that the Act did not violate the Title-Object Clause of the Michigan Constitution and was not unconstitutionally vague. Thus, whether the Act prohibits all nuisance actions against sport shooting ranges, or only those based on noise complaints, and whether the Act exempts sport shooting ranges from all local zoning ordinances are issues of first impression.
C. PRINCIPLES OF PREEMPTION
In Michigan, the following principles apply to the issue of preemption:
A municipality may not enact an ordinance if (1) the ordinance directly conflicts with the state statutory scheme, or (2) the state statutory scheme preempts the ordinance by occupying the field of regulation that the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation. Preemption may be established (1) where state law is expressly preemptive; (2) by examination of the legislative history; (3) by the pervasiveness of the state regulatory scheme, although this factor alone is not generally sufficient to infer preemption; or (4) where the nature of the subject matter regulated demands exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest.
Here, the Act is not expressly preemptive of all local regulation. To the contrary, the Act expressly provides for local regulation of certain aspects of sport shooting ranges “[ejxcept as otherwise provided in this act.” Thus, the Act is not one that completely occupies the field of regulation, thereby excluding regulation by local governments. Rather, the Act leaves local government regulation of sport shooting ranges intact, except where such regulation is specifically limited by another section of the Act.
Given the plain language of the Act, we cannot agree with Linwood-Bay’s arguments for complete preemption. Linwood-Bay and the MUCC rely almost entirely on the Act’s legislative history to argue that, despite the language of the Act, the Legislature intended to occupy the field of sport shooting regulation entirely and also to prohibit any nuisance action of any kind against range operators. But, given the language of the Act, the legislative history cited is neither authoritative nor convincing.
As the Court of Appeals noted in People v Tolbert, 216 Mich App 353, 360, n 5; 549 NW2d 61 (1996):
“It has been observed in the federal context that resort to ‘legislative history’ in the search for legislative intent is a perilous venture. Marposs Corp v Troy, 204 Mich App 156, 167-168, n 2; 514 NW2d 202 (1994) (Taylor, PJ., dissenting), quoting Address by Justice Antonin Scalia before the Attorney General’s Conference on Economic Liberties (June 14,1986). This enterprise is doubly fraught with danger in Michigan which, unlike Congress, has failed to create an authoritative legislative record. Id.”
The problem with relying on bill analyses is that they do not necessarily represent the views of even a single legislator. Rather, they are prepared by House and Senate staff. Indeed, the analyses themselves note that they do not constitute an official statement of legislative intent.
The state’s regulatory scheme is not especially pervasive either. The Act has two main components: protection from nuisance actions and regulation related to noise and a provision limiting local government regulation of existing sport shooting ranges. Even if one reads the protection from noise restrictions expansively, that section does nothing to establish a pervasive regulatory scheme for range operations. Rather, it provides only protection from noise restrictions.
Further, neither the “state’s purpose or interest” nor the “nature of the subject matter regulated” requires that the state be the exclusive regulator over sport shooting ranges. A sport shooting range is a particular land use that is subject to extensive control by townships under the Township Zoning Act. Linwood-Bay argues that part of the Act preempts the township zoning ordinance entirely because it authorizes shooting range operators to
[d]o anything authorized under generally accepted operation practices, including, but not limited to:
(1) Expand or increase its membership or opportunities for public participation.
(ii) Expand or increase events and activities.
However, statutes must be read as a whole:
[T]o read the law as a whole, it must, in fact, be read as a whole. The interpretative process does not... remove words and provisions from their context, infuse these words and provisions with meanings that are independent of such context, and then reimport these context-free meanings back into the law. The law is not properly read as a whole when its words and provisions are isolated and given meanings that are independent of the rest of its provisions.
Reading § 2a of the Act in its entirety makes clear that the Legislature addressed the construction of facilities in §§ 2a(2)(a) and (b), and activities and uses in § 2a(2)(c):
(2) A sport shooting range that is in existence as of the effective date of this section and operates in compliance with generally accepted operation practices, even if not in compliance with an ordinance of a local unit of government, shall be permitted to do all of the following within its preexisting geographic boundaries if in compliance with generally accepted operation practices:
(a) Repair, remodel, or reinforce any conforming or nonconforming building or structure as may be necessary in the interest of public safety or to secure the continued use of the building or structure.
(b) Reconstruct, repair, restore, or resume the use of a nonconforming building damaged by fire, collapse, explosion, act of god, or act of war occurring sifter the effective date of this section. The reconstruction, repair, or restora tion shall be completed within 1 year following the date of the damage or settlement of any property damage claim. If reconstruction, repair, or restoration is not completed within 1 year, continuation of the nonconforming use may be terminated in the discretion of the local unit of government.
(c) Do anything authorized under generally accepted operation practices, including, hut not limited to:
(i) Expand or increase its membership or opportunities for public participation.
(ii) Expand or increase events and activities.
Therefore, despite the broad language of the introductory phrase in § 2a(2)(c), the Act does not free sport shooting range operators from local zoning controls regarding construction of new facilities. Rather, it provides that ranges may allow more use of existing facilities to support more membership, participation, events, or activities. Linwood-Bay’s theory is that this part of the Act enables it to ignore any local zoning while building entirely new structures that would be nonconforming from the outset. This is a strained reading of the Act that focuses on only part of the statute and ignores the immediately preceding subsections concerning maintenance or repair of existing facilities. Applying here the doctrine of expressio unius est exclusio alterius, “the expression of one thing suggests the exclusion of all others,” suggests that the language in § 2a(2)(c) on which Linwood-Bay relies does not apply to construction or reconstruction of facilities at all, but applies only to the intensity with which existing facilities are used.
Therefore, we conclude that the Act does not completely preempt the township from regulating and, in this case, prohibiting Linwood-Bay’s proposed new range and use.
III. EXISTING STRUCTURE VERSUS NEW RANGE
A. STANDARD OF REVIEW
“We will not disturb the trial court’s findings of facts unless clearly erroneous.” “However, we review questions of law de novo.”
B. THE TRIAL COURT’S OPINION
The trial court found that “the proposed outdoor range is NOT a building or structure that is already in existence” and concluded that, therefore, “construction of the new range is not permitted under subsection 2a(2)(a) or (b) of the Act and defendant can not, therefore, proceed with same unless and until it obtains a variance from plaintiff township.” The trial court stated in its opinion that the testimony was that the outdoor pistol range being built on the site was a both a new activity and a new structure:
More specifically, according to defendant, the old 300 yard range has been abandoned for 20 years and is unsafe. Furthermore, and also according to defendant, the proposed range is not even located on the site of the former outdoor range; rather, the proposed range is located on a new and/or formerly unused portion of defendant’s property. As such, the proposed range is an entirely new structure and/or facility. It is therefore clear that defendant is not “repairing, remodeling, reinforcing, reconstructing, restoring[,] or resuming the use of” an existing outdoor range.
C. THE UNDERLYING TESTIMONY
On direct examination, defense counsel asked Alan Herman, Linwood-Bay’s president, “Why did you— when I say you, the club — entertain the idea of — of building a new facility?” Herman responded as follows:
A. Because the existing r — range that’s out there was tried to be used here a few years ago and it had been let go a little bit, overgrown, and when you were back there in the woods, mosquitoes and stuff were just wild. So — and the backstop was, how do I say this, right at the very corner of the property line between the golf course and us, I mean, right on it. And we felt that by moving it to a central location, we could get farther away for noise, you know, move the brush back, everything.
This would give us access to that and also and because of puttin’ [sic] the wings around the new — new earth berm, it would, you know, protect us from wind and everything else in there much better than what the existing one is that’s out there. That and the old stands and everything that were in there for what they used to raise the targets and hang their targets on had all rusted and dilapidated and gone down in and, you know, guys would just wanna [sic] take and — as was stated before — [interruption omitted]— stick a stick in the ground — [interruption omitted] — and put somethin’ [sic] on it to shoot at out there and we didn’t wanna [sic] do that. [Interruption omitted.] That was — we didn’t felt [sic] that was good.
Q. So, rather than put money in rehabilitating—
A. That range be — and because it was so much closer to the — to the golf corase property, we wanted to move it to the center of our property [interruption omitted] in order to make it 306 feet [interruption omitted] as much as we could.
Q. Sure. I — if you will — the club is allowed to complete the range, will that take the place of a couple of other ranges?
A. Yes. That will be — the other ones will be completely abandoned. We’d put a sign on them that they are no longer active and not to be used for any type of firearm usage.
On cross-examination, Herman testified that Linwood-Bay had not offered outdoor pistol shooting on its property in “many, many years” and that it had been abandoned because the outdoor pistol range was overgrown with brush because Linwood-Bay could not find volunteers to keep the range maintained. Herman testified that a member of Linwood-Bay’s club has a lifetime lease on separate property that Linwood-Bay uses for a pistol and rifle range near Munger in Bay County. Herman testified that, once the elderly member died, Linwood-Bay would not be able to lease the land near Munger for a shooting range and that was why Linwood-Bay decided “we gotta start doin’ somethin’ [sic] because we wanted to continue to do pistol, rifle, mostly pistol, that’s our biggest, how do I say, income —one of our biggest income [producers] next to shotgun. And that range that we had there at the club was not going to suffice.” Herman testified that Linwood-Bay had leased the Munger property since 1976.
On the basis of Herman’s testimony, we conclude that the trial court did not clearly err in finding that the range subject to the injunction was a new facility that was not in existence when the Act was passed. And, as discussed above, the trial court did not err in concluding that the Act “does NOT mean that a sport shooting range may build an entirely new structure, building and/or facility on its property,” even if defendant claimed that it needed the new range to “expand and/or increase membership” or “events and activities.”
Because we have affirmed on the first two issues, we need not reach the nuisance issue.
We affirm.
MCL 691.1541 et seq.
Frericks v Highland Twp, 228 Mich App 575, 583; 579 NW2d 441 (1998); MCR 2.613(C).
Frericks, supra at 583.
Ray Twp v B & BS Gun Club, 226 Mich App 724; 575 NW2d 63 (1997).
Id. at 728-733.
6 Frericks, supra at 585-586 (citations omitted).
MCL 691.1543.
8 Overruled on other grounds by Bendix Safety Restraints Group, Allied Signal, Inc v Troy (Amended Opinion), 215 Mich App 289 (1996).
9 Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587 n 7; 624 NW2d 180 (2001).
MCL 691.1542(1) and (2).
MCL 691.1542a.
MCL 125.271 et seq.
13 MCL 691.1542a(2)(c).
14 Lansing Mayor v Pub Service Comm, 470 Mich 154, 168; 680 NW2d 840 (2004).
15 MCL 691.1542a.
Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 712; 664 NW2d 193 (2003).
Frericks, supra at 583; MCR 2.613(C).
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] |
Cooley, J.
Plaintiff in error was convicted of an assault with intent to kill and murder one William Novenger. When the jury was impaneled, a challenge was interposed to the array; and this challenge presents the first ground of alleged error.
I. Under the statutes of this State the supervisor and township clerk of. each township are required, at the time appointed by law for the review of the assessment roll for the year, to make out and return to the county clerk a list of persons possessing the requisite qualifications, to serve , as petit jurors for the ensuing year. Comp. L., § 5977. The names appearing on each of these lists are to be written on slips of paper and then made up into a package, and the slips on which are written the names returned for the previous year are at the same time to be destroyed. When a jury is to be drawn, the names thus returned from the whole county are placed together in a bos, and the drawing is made therefrom by the county clerk. Public Acts 1877, p. 113. This statement is sufficient for an understanding of the questions raised by the challenge.
The trial of plaintiff in error took place early in 1878, and before the time for the review of the assessment rolls for that year. The lists from which the names of jurors should be drawn were consequently those returned for the year 1877. In respect to these it was shown: first, that from one township in the county no list was returned for that year; second, that from the remaining townships in the county, lists were returned, but that the time of making and returning the same varied from the statutory time, in nearly every instance, and in one case twenty-six days. The failure to comply with the statute in making and returning these lists was the reason assigned for the challenge.
There is nothing in this reason. The time for returning the lists was of no importance to parties litigant. The statute named a time when it would be convenient to make it, because the supervisor and clerk would then be together on other business; but a list made earlier or later would be equally good, for nothing depended on the time. Nor was the failure to make any return at all a fatal defect, for the statute expressly provides that in such cases the names previously returned shall be retained and made use of. Comp. L., § 5983. The challenge was properly overruled.
II. On the trial it appeared from the evidence given on behalf of the people that the assault was committed by the discharge of a loaded pistol at Novenger, thereby inflicting upon him a severe wound. Plaintiff in error was keeper of a saloon, and was in it with his son and one McCacklin. Novenger and several other persons undertook to enter it, and were ordered off. Considerable evidence was put in which had some tendency to show a persistent purpose on the part of Novenger and his associates to enter the saloon, and when they were finally ordered away, the door was slammed to, and glass in it was broken. The pistol which inflicted the injury on Novenger was then fired through the door.
The defense insisted that under the circumstances the firing of the pistol was justifiable, and they asked the court to require the prosecution to put McCacklin upon the stand for examination, since prima facie he would be able to give testimony that would be important to assist the jury to arrive at a correct understanding of the case. This request the court refused.
McCacklin, it appears, had been subpoenaed on the part of the People, and during the progress of the trial was called, but failed to respond. No effort seems then to have been made to produce him, and no impediment to doing so is shown. The prosecution now attempt an excuse for this failure, by saying that he was only one of several witnesses of the transaction, so that his testimony could only have been cumulative. The excuse, under the circumstances of the case, is not sufficient. Besides the actors in the affray McCacklin was the only person who appears to have been in position to see what took place inside the saloon, and presumptively he could have given evidence of high importance. In some particulars his evidence in all probability would have stood alone. The reasons requiring him to be called by the prosecution have been so fully stated in other cases that we need not repeat them here. Maher v. People, 10 Mich., 225; Hurd v. People, 25 Mich., 415; Wellar v. People, 30 Mich., 16.
In the other assignments of error we find nothing calling for special remark.
The judgment must be reversed.
The other Justices concurred. | [
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Cooley, J.
The plaintiffs in error were convicted of uttering and publishing as true a false and forged instrument in writing in the words following:
“ White Wire Metallic Clothes Line Company:
Send me by freight, to Brooklyn Station, two bundles of your seven-strand white wire metallic clothes line, each bundle to contain about one thousand feet, which I will sell in the town of Cambridge, Lenawee county, Mich., only. Reference being had to the following agreement, which 1 have this day made with your agent, viz.: I am to give the company above named the retail price for the first order, which I will sell at five cents per foot, in consideration of the exclusive agency to sell said line in said town above named, so long as I sell 3,000 feet a year. It is further agreed by the parties, that all future orders are to be settled for with the company, or their traveling agent, at one-half the retail price within named.
Dated Feb. 15th, 1877.
(Signed) J ohn Monagin,
P. 0. Address, Springville.
O. H. Dingman, Agent for the Company.”
The information was filed under § 7632 of the Compiled Laws, which provides that every person who shall utter and publish as true any false, forged, altered or counterfeit record or other instrument enumerated, among which is any order, acquittance or discharge for money or other property, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud, shall be punished by imprisonment as therein limited.
The theory of the prosecution was that plaintiffs in error and O. H. Dingman named in the order, were engaged in carrying out an extensive scheme of fraud, in furtherance of which Dingman traveled about the country and by various tricks and devices fraudulent in their character, obtained signatures to orders similar to the one set out in the information, while the signers supposed they were subscribing something different, and perhaps in some instances forging the signatures himself; and that plaintiffs followed him with the forged papers, and by threats of legal proceedings succeeded in many eases in obtaining money in settlement.
Evidence tending to show this scheme and frauds committed upon various persons in pursuance of it was allowed to be given, as tending to show the scienter in the case under investigation. Errors are assigned on the admission of this evidence, and it is insisted that it comes under the familiar rule which, when an accused person is on trial for one offense, precludes evidence of other offenses being given to prejudice him.
We have not been favored with any brief on behalf of the prosecution in this case, and are therefore without the assistance which a presentation of the views of the prosecution may generally be expected to afford. An examination in detail of the numerous questions raised by the record must always be somewhat unsatisfactory, when they are argued on one side only, and under the circumstances we do not think it advisable to discuss at length the errors assigned.
There was no error in permitting the prosecution to show the general scheme of fraud, to which Carver, Palmer and Dingman were parties, nor the specific acts which were done by them severally in pursuance of their conspiracy. The evidence was a part of the case against these defendants; it tended to show their knowledge that the instrument purporting to be signed by Monagin was forged, and thereby fix upon them the criminal intent. The fact that it also tended to prove them guilty of other offenses was one of the misfortunes of their position; the evidence was not given for that purpose, but as having a direct and necessary bearing upon the particular offense for which they were on trial. The court receiving the evidence was under obligation to protect them by proper instructions to the jury, against being unfairly prejudiced, and no doubt did so in this case.
Many of the exceptions relied upon in this ease appear to us frivolous, but two which are taken to the charge are fatal to the conviction. The circuit judge instructed the jury that if they found the accused uttered the instrument having reasonable cause to believe it was forged, they should find them guilty. This was a serious error. The statute punishes those only who utter and publish forged instruments knowing them to be forged, but this instruction required a conviction if the jury believed the accused were merely negligent in uttering an instrument in respect to which the facts should have put them upon their guard.
No doubt if the jury are satisfied the accused had reason to believe the instrument was forged, they might find the guilty knowledge. But knowledge of a thing and reason to believe in its existence are not identical, and the finding of the one is not equivalent to the finding of the other. The one falls short of the other exactly as gross carelessness falls short of criminal intent. It is a state of things from which knowledge might be inferred, and under the circumstances of this case probably ought to have been inferred; but the inference was one the jury might or might not draw, according as they were or were not satisfied of the privity of the accused with the fraudulent practices of Ding-man. They were not required to deduce the conclusion if they had reasonable doubts of the guilty knowledge.
We also think the circuit judge .was not as careful as he should have been in explaining to the jury what is meant by the reasonable doubt upon which they should refrain from convicting. The following among other things was said to them: “After looking over all this .testimony, if these matters were concerning yourselves or your own families, or the members of your families, and you would be willing to act upon it, you should act upon it in this ease.” These matters could not well concern the jury or their families except either as accusers or accused, and to ask them to judge of them from either standpoint is to put them into a position very unsuitable to a dispassionate consideration of the ease. Naturally the jury from this instruction would assume that they might deal with the case as they would be likely to if they or their families had been the victims of the fraud; and the instruction had a tendency to disarm their caution rather than to put them upon their guard against being led astray by a plausible but doubtful case.
The judgment must be reversed, and a new trial ordered.
The other Justicés concurred. | [
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Graves, J.
This case presents the question whether under our existing system a county can maintain ejectment for a strip of land regularly devoted to public use for a street by means of dedication pursuant to ' the statute (Laws of 1839, p. 162) and of acceptance by the proper authorities, where the' defendant holds possession adverse to the public and creates obstructions.
An elaborate argument has been made to sustain the right of action; but we think the position is untenable. Many reasons against it are suggested to the mind, not necessary to be noticed.
In order to maintain ejectment in this State the plaintiff at the time of commencing suit must have “a valid subsisting interest in the premises claimed, and a right to recover the possession thereof,” etc. Comp. L., § 6206. And it is not unworthy of notice that this provision concerning the necessity of a right of possession in the plaintiff accords with the maxim that no one can recover in ejectment who would not be entitled to enter without action.
Now what is the position of the county as respects a strip of land dedicated to public use as a street under the statute?
It acquires no beneficial ownership of the land, and exercises no volition about the transfer. Willing or unwilling, the law vests it with nominal title. It does not accept and cannot refuse. It cannot grant or otherwise dispose of the premises, and has no voice concerning the use. It is powerless to shorten the continuance of the easement, but other agencies may at any time bring it to an end, and in ease of that the law does not allow even this figment of ownership to remain. In such event what was in the county vests in others.
But whilst it does remain it is expressly for public use and not for county use except as the county is part of the public. And the county cannot in character of an artificial person — and which is the character in which it sues — take or enter into actual possession without acting adversely to the lawful right of use, for in respect to the subject in question actual possession is use. The tenure of the county is therefore repugnant to a condition of the action.
Again, it may be questioned whether possession by an individual to the exclusion of use by the public can be held to be adverse to the county in any such sense as the theory of this form of action requires. So too it may be questioned whether the county can be said to have “ a valid subsisting interest in the premises ” within the meaning of the statute. But these points do not call for decision now.
The policy of the State has always favored specific methods for opening public streets and for keeping them clear of encroachments and obstructions, and in furtherance of it the Legislature at the last session extended the equity jurisdiction of the circuit courts in express terms to a large class of interferences.
Ejectment has never been considered here as a proper remedy to put the public in possession of land appro priated for streets or to keep it clear of unauthorized impediments, and the Legislature has never attempted to adapt the action to such occasions. No reference is intended by what is said, to various holdings for specific local uses, and where an action by the county for possession would • be in consonance with proprietary and municipal duty and not incompatible with the nature of the tenure or the ordained mode of use.
The ruling of the circuit judge that the action could not be maintained was correct, and the judgment must be affirmed with costs.
Campbell, C. J., and Cooley, J., concurred; Mars-ton, J., did not sit in this case. | [
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] |
Campbell, C. J.
"When this case was here, as reported in 33 Mich., 85, it was in many respects different from the present record, and a statement of the facts is therefore essential.
This is an action of replevin brought by Hunt to recover from a constable a billiard table, and certain balls and tips, levied on under an execution against one Brown, in favor of Kirby & Fanckboner, on the 11th of September, 1872. There had been an attempt to levy on the table, without its cloth and .the other articles, and when it was in separate parts, in July, 1872, upon attachment. The attachment was personally served on Brown, who contested the suit, in which judgment was recovered against him September 10 for about $25 including costs.
Hunt claimed to have bought the table in an exchange of hotel property June 24th, 1872. June 25, 1872, Brown left the parts of the table in the hotel' which he sold to Hunt, taking away in his trunk the other articles. After-wards, but at what precise time does not appear, except that it was between the issue and asserted levy of attachment and the judgment, Hunt obtained from Brown, who was in the hotel in Indiana which he had taken from Hunt, the cloth and other articles which had been carried off, and gave up to Brown — whether as price or compromise is disputed, — a note of the latter for about $60. There was a claim made byJBrown in his testimony that at this time Hunt purchased the table also, and agreed to pay an existing mortgage on it of about $52 and the attachment claim, which was then and subsequently contested by him before the justice as before mentioned.
The questions in dispute on the merits were: 1. "Whether the table was purchased before the attachment, which did not involve the smaller articles; 2. Whether it was in any event bound by the attachment; 3. Whether if Brown’s story is accepted, the property although sold to Hunt before the execution was subject to levy; 4. Whether _ a tenant named Kingsbury was lessee or'only bailee of the table.
Some other collateral questions arose concerning the rights of Hunt as purchaser of the mortgage, as well as upon testimony.
"Upon examining the record, certain questions concern ing the exclusion of parts of the res gestes, as well as of the reception- of such matters, occurring at the time of the exchange of hotels, do not seem to arise, as the rulings were either given as desired, or the answers were immaterial.
In obtaining the property, whatever it was, which was obtained in Indiana, Hunt claimed he gave up a note of little actual value, but while he stated this fact he was not allowed to answer whether it was collectible. We see no very good reason why this should have been excluded, but in the view we take of the case it is not now important.
The court below rightly held the attachment proceedings invalid — so far as the seizure of property was concerned. The affidavit, which stated merely a belief that Brown was about to remove his property, did not state that the affiant had any reason to believe it. And there was no dispute that Hunt had before the execution levy obtained the title to all the property. But the court below held that it was nevertheless lawfully seized by the constable if Hunt bought it after the attachment was sued out and knew Kirby and Fanckboner were trying to collect their debt out of the table, and bought subject to their claim and to the mortgage and agreed to pay them.
As they had no claim whatever on the property itself, we are unable to see how such an obligation, if made, could render the property liable to execution. It may have created a personal obligation to Brown, but the other parties were strangers to it, and even if they could set up equities in it, the property was no longer that of the execution debtor and could not be seized as his, while the theory of all parties is repugnant to any idea that Brown was committing any fraud on his creditors by the arrangement; If' the attachment levy had been valid as against Brown originally, such an agreement would have prevented Hunt from buying up the mortgage -which he had agreed to pay, in order to use it to defeat the enforcement of the execution. Nelson v. Ferris, 30 Mich., 497. But an obligation not to avoid a valid lien is a very different thing from a promise to pay a debt to a third person which is entirely unsecured, — and such a promise, as we have frequently held, is only good as between parties' to the arrangement. And at this very time Brown was contesting this claim in the attachment suit, and occupying apparently an adverse and not a contract relation to his creditors in this matter. However these contradictions may be reconciled, it is not claimed the creditors were parties to the sale to Hunt, if made as Brown asserts. Higman v. Stewart, 38 Mich., 513; Pipp v. Reynolds, 20 Mich., 88; Turner v. McCarty, 22 Mich., 265; Hicks v. McGarry, 38 Mich., 667.
As the case is now presented it is impossible on any theory to defeat the right of Hunt to the possession of the property against Strew, and all of the other questions become of no importance. Inasmuch as upon the theory of the defendant in error himself there can be no defense to the suit, we regret that we cannot in reversing the judgment give judgment for plaintiff in error, and stop further litigation which is useless and vexatious.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Graves, J.
Fletcher sued on the money counts to collect certain tolls and dues he demanded as assignee of the Alpena Harbor Improvement Company. December 31, 1875, the parties and their counsel signed a stipulation to refer the case to William E. Warriner. This stipulation contained some special provisions not strictly germane to an agreement to refer and among them one directing the referee to report to the court in three months. These matters were not expressed as conditions and do not seem to have been meant by the parties or their learned counsel as qualifications of the reference itself, and in view of the professional assistance which the parties had it would be very difficult to conclude that anything of that sort was intended. Having entered into this stipulation to refer, the parties neglected to enter any order under the stipulation.
November 24, 1876, or nearly a year later the referee filed his report. It was in general terms and simply stated that a certain sum was due from plaintiffs in error to Fletcher. The plaintiffs in error made no objection whatever. But defendant in error alleged that the referee in writing out his report had made a clerical mistake by which the amount due was reported at a sum several hundred dollars less than the true one, and he produced the affidavit of the referee affirming this representation and fully explaining the mistake and the way it happened, and he moved that the report might be taken from the-files and that it be referred back for .a correct report. The plaintiffs in error strenuously resisted the motion, and objected against taking the report off the files, and against reference back, but the ■court granted the motion. All the parties hitherto had recognized the case as in court, and the proceeding .under the stipulation as a reference.
April 6, 1877, the referee filed a corrected report. ’This was in general terms also. May 10, 1877, the plaintiffs in error treating the action as still in court, filed several exceptions to this last report and asked that it be set aside, and on the second of dune following the ■eourt overruled the exceptions and denied the motion; and on the 10th of the succeeding November judgment was entered on the report.
The defendants below then brought error and their counsel now urges several objections to the proceedings. It is not too much to say that the practice in the case has been very loose, and that counsel seem to have proceeded on a tacit understanding that strict regularity would not be insisted on, and the main incongruities .are due to this influence. It is objected that the ref eree did not report within three months as directed by the stipulation. It is enough to say in reply that if this direction was of any force in court the parties waived it. The first report was not filed until long after the expiration of the time, and yet the plaintiffs in error opposed setting it aside, and strongly insisted that it should stand.
Another objection is that no order was entered to empower the referee to act, and that the case went out of court and rested with the referee as arbitrator only.
The omission to enter an order was only a neglect of form, and is cured by the statute, Comp. L., §§ 6050, 6051,- 6052.
The stipulation which was sanctioned by the signatures of counsel and framed, as we must suppose with their approval, expressed and required a reference, and the insertion of certain particulars foreign .to the chief object did not operate to turn the parties out of court. No such result was meditated, and the course of the parties and their counsel has been in contradiction of such a consequence. The positions taken after the first report show, that neither side suspected or desired a discontinuance, and the whole tenor of the proceedings is inconsistent with the idea that the submisson was one to arbitrate, and that the action was ended. The written consent of the parties was sufficient to found a reference (L. 1861, p. 158, § 3: Comp. L., § 5808), and as before stated, the neglect to enter an order is cured by the statute. Considering the course of practice pursued and in view of the positions and conduct of the parties, we must hold the proceeding was a reference; no room is left for any other construction.
The recommitment to cure the mistake was not error. L. 1861, p. 160, § 9; Comp. L., §§ 6050, 6051, 6052.
It is urged that the report was bad for want of specific findings. This objection is met by a similar one in respect to the assignments of error. There is no special charge of error that the referee did not find spe cially. The only allegation which can be claimed to relate to it is quite too general to avail anything. Altman v. Wheeler, 18 Mich., 240.
What has been said is' sufficient to dispose of the case, and as no error of which plaintiffs in error can complain is made out, the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, C. J.
Recovery was had against plaintiffs in error as bondsmen of Horatio N. Maxwell, a defaulting treasurer of the township of Kimball.
The official bond of that officer was drawn up in the usual manner, setting forth himself as principal and plaintiffs in error as sureties by name, and bound them all to the performance of his duties. He never signed the bond, and it was accepted by the supervisor without any knowledge or consent of the sureties that it was not to be signed by the principal.
The court below, although there was positive evidence of a want of consent, directed judgment against the sureties.
Our statutes plainly contemplate that the treasurer shall himself be a.party to his own official bond. Comp. L., §§ 713, 716, 717. And while we are not prepared to hold that a bond knowingly and intentionally given without his concurrent liability will not bind the obligors, we are of opinion that where he purports to be obligor and does not sign the bond, there must be positive evidence that the sureties intended to be bound without requiring his signature, before they can be held responsible. The obligation of a surety cannot fairly be extended beyond the scope of his written contract, inasmuch as under our Statute of Frauds his agreement must be in writing; and we think that presumptively, at least, where the contract which he signs calls for the signature of other parties, the instrument is to be deemed inchoate and imperfect until they also sign it.
We are quite aware that there is a conflict in the cases on this subject as to the presumption of consent and the burden of proof. In the recent case of Hall v. Parker, 37 Mich., 590, we acted upon the principle which we now act upon, and held a surety not liable on a bond which was not completed according to its terms. In Wells v. Dill, 1 Mart. (La.) [N.S.], 592, the doctrine was thus laid down: “ The contract is incomplete until all the parties contemplated to join in its execution affix their names to it; and while in this state cannot be enforced against any one of them. The law presumes, that the party signing, did so, upon the condition that the other obligors named in the instrument should also sign it; and their failure to comply with their agreement gives him a right to retract. The authority of Pothier is express on this head. Pothier, Traité des Obligations, No. 11.” In our opinion this doctrine is the safest and most in accordance with principle.
Where several names are written as co-obligors and one of them is called upon to sign it, he does so upon an implied understanding that he can in case of being held responsible, not only have his right to contribution, but a further right to have it capable of proof and enforcement according to the terms of the contract as it purports to be drawn up. And he has a right to insist that he will not be bound except upon his own terms, reasonable or unreasonable. It is for himself and not for others to determine these terms. And if it is claimed he has waived -them, or become estopped from relying on them, the burden of proof ought not to be laid upon him to show that there has been no variance, but upon the plaintiff to show what is substantially a new contract.
Although we do not base our decision upon the ground that in this case there are substantial and legal reasons for requiring the treasurer to sign his own bond, yet such reasons are not without force. It was -claimed on the argument that the sureties would have a right of contribution against the treasurer at any rate, whether he did or did not sign the bond with them. This may be true, but if he had signed the bond he would not only be estopped by the judgment from contesting his liability, but the sureties could require recourse to his property to satisfy the execution before seizure of theirs. These are not barren advantages.
The ease of McCormick v. Bay City, 23 Mich., 457, has no bearing on this case. There the sureties signed a bond which had not the names of other obligors inserted, and which when completed and filed had nothing suspicious on its face. Here the bond shows on its face that the principal has not signed a paper in which he is positively set forth as the person whose signature is to be that of the primary debtor, whose fellowobligors only promise that he shall do his duty. The difference is obvious.
The present case is within the principle of those cases which throw the burden of proof' on the sureties to establish their non-consent, for here that non-consent was made out. But we are not disposed to follow that rule, which seems to us in violation of the fundamental principles of suretyship, and essentially unjust.
The judgment must be reversed with costs of both courts, and judgment on the record for plaintiffs in error, as the declaration makes out no cause of action.
The other Justices concurred. | [
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] |
Campbell, C. J.
Arthur Bruen and Hiram J. Hanchett filed a bill in equity to restrain proceedings at law which had been begun by Stewart, and Abner C. Bruen signed a joint bond with them as-their surety to obtain the injunction. Judgment was • finally given in Stewart’s favor for $1276.79 damages and $28.20 costs, on the 4th of February, 1875. Stewart presented his claim against Abner C. Bruen’s estate, he having died, and the commissioners and the circuit court rejected it, on the ground that § 4438 of the Compiled Laws establishing joint contracts as joint and several, against deceased contractors, does not apply to sureties.
The statute is as follows:
“When two or more persons shall be indebted on any joint contract, or upon a judgment founded on a joint contract, and either of them shall die, his estate shall be liable therefor, and it may be allowed by the commissioners, as if the contract had been joint and several, or as if the judgment had been against him alone, and the other parties to such joint contract may be compelled to contribute or to pay tbe same, if they would have been liable to do so npon payment thereof by the deceased.”
There can be no donbt that the bond in question is a joint contract, and as such is-within the language of the statute. It is equally plain that there can be no case where one joint debtor can be compelled to entirely reimburse another who has paid the joint debt, unless as between themselves one is -a surety, and that the statute, therefore, must cover at least some cases against sureties and their estates.
If we should attempt to discriminate between joint debtors, and to say that some sureties jointly bound are not within the statute, our selection must be arbitrary, and we must put exceptions into the law which do not come within its language. Y/e do not know how this can be done.
There is no particular equity against a creditor to deny the liability of the person on whom alone or chiefly he relied and had a right to rely when the obligation was made. In bonds like this the signing by a surety or sureties is indispensable, and an injunction could not issue without it. It is the surety and not the principal whom the law. compels the creditor to be satisfied with. The responsibility of the principals is not examined into. That of the sureties must be determined before the bond can be allowed. If the death of a surety released his estate, the creditor might lose his whole claim, when, except for the surety’s name on the bond the original suit could not have been stayed at all. This would not be just, and we cannot construe the plain language of the law, which is on its face opposed to such a construction, as intended to give no redress in such cases. . It is always difficult to properly explain away the language of statutes on supposed equities, and nothing but an equity so strong as to indicate that it must have been intended to create an exception, will authorize such construction.
We think the claim was improperly rejected. The proceedings rejecting it must be reversed and the claim allowed at the amount of damages and costs, with interest from the rendition of judgment, and the allowance certified under the statute.
The other Justices concurred. | [
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Cooley, J.
The controversy in this case relates to a crop of wheat raised by one Hardy on land leased to him by Dayton. Hardy, it appears, abandoned the land before the lease had expired, and sold the growing wheat to Vandoozer. Dayton, on the other hand, claimed that Hardy had forfeited his estate under the lease, by noncompliance with its provisions, and that thereby he, as lessor, became entitled to re-enter and take possession of and hold the growing crop, which he proceeded to do.
The difficulty with Dayton’s case is, that the lease is not put in evidence, and therefore there is nothing to show that it was upon any conditions whatever. All we are told about it is, that the consideration for the lease was certain clearing to be done by Hardy; but it is not stated that there was any clause of forfeiture for failure to do the clearing, or for any other default. Therefore nothing appears to qualify the right of Hardy to sell his growing crops at discretion.
The judgment is affirmed with costs.
The other Justices concurred. | [
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Campbell, C. J.
The issue in this case relates to the payment of a certain sum upon a mortgage. The testimony is at variance, and in the court below it was found to preponderate in favor of payment. We see no sufficient ground for refusing to accept this conclusion. The decree must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
The bank recovered in the court below against Ortmann as maker and .Rothschild as endorser of a note for $1175.50, drawn payable to Rothschild’s order at the American National Bank, at the city of Detroit.
The defense set up was that when Rothschild endorsed it was verbally agreed between him and the bank, that if he would pay and take up certain notes made by George Campbell & Co., and used by Ortmann on the Detroit side of the river on Rothschild’s endorsement, the bank would cancel this endorsement or relieve Rothschild from liability on it and look' to Campbell & Co., and to security the bank had taken from them for the money called for by the note, and that Rothschild was to be liable on the endorsement only in case he should not pay said notes on the Detroit side, and that pursuant to this arrangement he paid the paper in question, and that the bank understood when the note .was taken that he was endorser for accommodation merely.
The defense offered parol evidence to make out the state of facts indicated, and counsel for the bank objected that it was not competent. The court, however, ruled that the evidence might be gone into, and subsequently allowed the counsel for the defense great latitude under the ruling. At length objections were sustained to questions in this line of inquiry as remote and unnecessary, and to the further continuance of, a loose examination on the same subject, when the court was of opinion that to carry it further would not in fair practice be proper. These rulings are complained of. Error is charged also on a fragment of the instructions to the jury, but it seems to be abandoned. The brief does not refer to it.
The court erred in allowing the defendants below to give evidence of an unwritten agreement made at the very time of the endorsement, for the purpose of changing its legal import and converting it into an undertaking subject to conditions resting on extrinsic matters, and containing terms depending upon the uncertain recollection of the parties. Hyde v. Tenwinkel, 26 Mich., 93; Martin v. Hamlin, 18 Mich., 354; Free v. Hawkins, 8 Taunton, 92; Hoare v. Graham, 3 Campb., 57; Bank of Albion v. Smith, 27 Barb., 489; Fassin v. Hubbard, 55 N. Y., 465; President, Directors & Co. of Prescott Bank v. Caverly, 7 Gray, 217; Charles v. Denis, 42 Wis., 56.
We do not decide that evidence of parol contemporaneous facts which affect the contract can never be allowed. When the state of the issue and the nature of the question allow and require it, the consideration may be inquired into, and the rule does not exclude the right to prove that the endorsement was obtained by fraud, or for the special purpose merely of facilitating collection, or that it has been fraudulently perverted or misused.
Wherever the shape of the issue, the status of the parties, or their relation or situation does not preclude the inquiry and it becomes material upon such questions :as those just suggested, the reason for exclusion does not apply.
It is then, not a case where a written undertaking having a definite prima facie legal sense is proposed to be displaced by the court at the instance of a party, by some unwritten contemporaneous understanding, bearing a different meaning, and where there are no conditions to justify the substitution of uncertain verbal relations which the parties were not minded to write down, for the certain testimony of their purpose and understanding which they did write down. We think it is proper to observe further, that it must not be taken for granted that the arrangement mentioned if in writing would be a defense. It is not conceded that it would be, but as the point is not now material it is not decided. As the evidence was improperly admitted against the objection' made to it, the plaintiffs in error are not in a position to complain that they were not allowed to examine at greater length. Were it otherwise there would be room for questioning the validity of the exceptions. This disposes of the questions'urged.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Marston, J.
Bill filed by complainant for the foreclosure of a mortgage.
The question, and the only one raised on this appeal, is whether defendant, on the 23d day of September, 1871, paid to complainant five hundred dollars. He testifies that he did, and produces a receipt of complainant’s of that date for that amount. Complainant denies that any such payment was made or receipt given. Thgre is no doubt but that' this receipt is in the handwriting of and signed by complainant, but as there clearly has been a change or alteration made in the date thereof, she claims such alteration was made by the defendant. Complainant’s version, in substance, is that on April 1st, 1874, defendant called while her husband was absent from home, and desired to make a payment; that he then paid her five hundred dollars, for which she gave him a receipt; that he said he would call again in the evening of the same day and make a farther payment when her husband would be at home; that he did call in the eveping, paid to her husband seventy-five dollars, received from him a receipt for five hundred and seventy-five dollars, but did not surrender up the receipt which she had given him in the forenoon of that day, but kept the same, and that the date of such receipt has been changed from April 1st, 1874, to Sept. 23d, 1871. There is no doubt but that a payment of $575 was made April 1st, 1874, in the manner indicated. Defendant says that the receipt which she gave him on the forenoon of that day he delivered up to Mr. Hazen when he took the receipt for $575.
Defendant farther says that on September 23d, 1871, he called at the residence of Mrs. Hazen and made her a payment of $500; that she wrote him a receipt therefor and handed it to him; that he read it and noticed that she had made a mistake in the date thereof, dating it Sept. 21st; that upon calling her attention thereto, she took a case-knife, made an erasure thereon, and inserted the correct date.
Each has introduced more or less evidence in corroboration of their testimony. Expert testimony was also introduced in reference to whether a change had been made from April 1st, 1874, to Sept. 23d, 1871, but no very great light has been shed upon the transaction thereby. The case stands substantially upon the testimony of the complainant and defendant, and the correctness of either view must be determined from certain intrinsic facts. The indorsements made upon the note and mortgage by complainant and her husband can aid us but very little if any. They were not made at the time of the payments in all cases, and some payments, conceded to have been made, were not endorsed at all. Nor do we gain much if any assistance from the comparison made by Mr. Hazen and defendant of the endorsements, receipts and memorandum of payments made. The • memoranda made by defendant of payments made, to say the least, are entitled to equal credit.
After reading all the evidence in the case, an impres- . sion remains that a payment was made as claimed by defendant on the 23d of September, 1871. A careful scrutiny of the disputed receipt strengthens this impression very much. That a change has been made in the date of the month is of course conceded by both parties. Standing alone we should say that no change whatever had been made in the last figure, giving the year. We think it was in the first instance written 1871 and not 1874. Not only however must this change have been made, but the month “April” must have been changed to “Sept.” as it now appears. -A person believing that such a change had been made, may notice some things to support his view, but so slight indeed as to be wholly unreliable. If, as is claimed, the S in Sept, has been changed from the letter A as it stood in April, how the farther changes were made, if at all, does not appear. The p in Sept, may stand as it did in April, and the r have been changed into a t, yet the two remaining letters in April must have been erased, of which we cannot discover the slightest indications. If the A and 1 in A.pril have been changed to an S and t in Sept, and the date as first written was April 1st, then the space between the word April and the figure 1,. must have been far greater than we should have supposed it would have been, judging from the appearance of the entire instrument. Again, the ink used in writing this receipt is of a peculiar color. Yet these changes, if made, have been made with the same kind of ink, — no difference whatever in this respect can be detected. The handwriting is also the same. Indeed if a change has been made as claimed, it has been exceedingly well done, and by some person not a novice in the business.
This case was exceedingly well presented on the argument, and our attention was called to some very striking circumstances which, upon examination, we find to be as claimed.
In February or March, 1873, complainant and her husband took the note and mortgage to the register’s office, for the purpose of having the endorsements of payments, as made upon the note, recorded. Their reasons for having this ■ done, especially as all the payments conceded to have been made were not then endorsed on the note,' are not satisfactory. They appear to have had a large number of notes and mortgages, yet this is the only instance in which they desired to have such a record made. At that time, however, they claim the mortgage in this case was lost. Some payments had been endorsed thereon, and defendant testified that when he made this payment of Sept. 28, Mrs. Hazen endorsed it on what appeared to be a note or mortgage, and certain it is that' no such endorsement was made upon the note. All receipts given for payments made, up to the time the mortgage is said to have been lost, are “to apply on mortgage,” or for' so many dollars, “the same having been endorsed on a mortgage,” or “the same being endorsed on a certain mortgage,” and in none of these receipts is it stated that the payment made is to apply on, or be endorsed on the note, nor is the note mentioned therein. After the loss of the mortgage, the receipts given are “ to apply on his note;” there are three such, and there are two so written in the first instance, with the abbreviations “& mortg” interlined or added thereto.
This disputed receipt is given for five hundred dollars “to apply on his mortgage,” which is certainly a circum- . stance tending to show that it was given before the loss of the mortgage, and if so it could not be the receipt given in April, 1874.
Again, the receipts given and endorsements made in 1869, 1870, and 1871, are written with a poor quality of black ink — the color is now a dirty brown — while those written in 1872, 1873, and 1874, are written in black ink. The difference in the ink, and the appearance of the receipts at the present time is clear and distinct. Looking at this disputed receipt, it clearly must be placed with those given previous to 1872. That Mr. Hazen gave defendant a receipt April 1st, 1874, for $575 is conceded by all. That receipt was written with a clear black ink, while the disputed receipt, said by complainant to have been written on the same day, could by no possibility have been written with the same kind of ink. Mr. Hazen attempts to account for this difference by saying that he kept two bottles of ink of a different kind on his desk, but Mrs. Hazen is just as clear and positive, and we think much more so, that he did not.
There are other facts tending in the same direction, but we need not discuss them at length, or indeed refer to them, as they are of no importance to any one beyond the parties directly interested.
We are of opinion that defendant did make a payment on the 23d day of Sept., 1871, of $500, and that the same should have been credited him. The decree must therefore be modified accordingly, with costs of this court to defendant.
The other Justices concurred. | [
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] |
Marston, J.
We can discover no good purpose that could be subserved by the appointment of an administrator in this case. WTiether, under the agreed facts, the settlement made between the heirs at law of Harriet L. Bradley, constitutes no legal bar to the granting of administration upon her estate, as claimed, or not, yet such settlement ought to and would equitably estop them from afterwards attempting to open or disturb it. It is agreed that there are no creditors or others interested in this matter, and that the mortgage and note secured thereby represented the only property and all the property of which she was possessed at and previous to her decease. Nor were there any debts. Under such circumstances, where all the heirs at law, being of full age, meet and agree upon a settlement and division of the property, and the same is in good faith carried out, it would be strange indeed if they could retain what they had thus received, being all the law would have given them under any course of settlement by an administrator, and still commence proceedings to recover the same again.
This case is clearly distinguishable from those cited by counsel for defendant in error.
The proceedings in the probate court and judgment in the circuit must be reversed, set aside and held for naught, with costs to plaintiff in error.
The other Justices concurred. | [
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Marston, J.
The respondent was convicted of an assault with intent to commit the crime of rape, and sentenced to the State House of Correction at Ionia. Errors are alleged to the rulings and charge of the court, which will be considered in order, so far as deemed important.
First. When the case was called' for trial and before the jury was sworn, the prosécuting attorney stated to the court that he desired to have his partner assist him in the trial, alleging as a reason therefor, that having been steadily engaged for some ten or eleven days in the trial of causes, and on account of the large number of witnesses to be examined in this case, he did not feel equal to the task. An objection was interposed by counsel for the respondent, unless the prosecuting attorney would “ step out of the case and leave it,” or would inform the court that he was unable to conduct the trial, and would therefore substitute his partner in his stead. This was not done. The prosecuting attorney remained in the case. It is also said that counsel who assisted the prosecution, improperly and unfairly conducted the examination of one of the witnesses, in not asking certain questions upon the direct examination, in the belief that the facts would be drawn out upon the cross examination, and not being so called out, in then endeavoring to show such facts upon re-examination of the witness.
We have had occasion to hold quite recently that the prosecuting attorney, with the leave of the court, had a right to have counsel assist him in the prosecution of a criminal case, and nothing is even intimated in this case tending to show that the person chosen was in any way interested so as to disqualify him, or render him an unfit or improper person for the position, and we do not see anything in his conduct during the trial, or the examination of the witness referred to, that could tend to the prejudice of the accused, as the court sustained the objection to the questions asked upon re-examination.
Second. That it appeared that one of the jurors had formed and retained an opinion which evidence would be required to remove.
It appeared upon examination of this juror that he had read a little about the case, — in all about twenty lines; that from this he had formed an opinion, not of a fixed character, but which would require evidence to remove, and he believed he would be able to render an impartial verdict according to the evidence submitted upon the trial. What the opinion was, whether favorable or unfavorable to the accused, did not appear. The showing as to the incompetency of this juror was insufficient. The opinion he had formed was not based upon anything he had himself witnessed, or from information derived from any one who claimed to know the facts, but from reading a few lines in a newspaper, which could not have given a very full account of the transaction or made a very deep or lasting impression upon his mind, or one that would preclude him from an impartial examination of the facts as presented during the trial. Holt v. People, 13 Mich., 229.
Third. That while it was competent in this case to show in general terms that the person injured made ■ complaint, yet that the court erred in allowing evidence of the particulars of such complaint to be given.
Even if we concede that the particular statements made by the girl shortly after the alleged outrage was committed, could not be shown upon the direct examination, yet it would not avail in this case, as a careful reading of the record fails to show any such examination or testimony. The testimony given as to what the girl said is of the most general character and does not attempt to give the particulars of the transaction or any part thereof. In this connection we may dispose of the objection made to the testimony given. by Mrs. Bull as to what the boys who had been in the company of the injured girl said when they first returned home. They merely related that the man in whose field they had been picking thistles had ' detained the girl and had threatened to put them in jail. The whole purport of the statement made was to inform the girl’s guardian where she was and to account for her absence. It was not known or even suspected at the time that a crime had been or would be committed, nor did it tend to implicate or identify any person. It is difficult to imagine how the introduction of this evidence could have tended in the slightest degree to prejudice or injure the accused; yet it was one of those circumstances or parts of an entire transaction proper to be laid before the jury so as to give them a connected, and intelligent view of what, acting upon the information given, was afterwards discovered.
Fourth. That the court erred in admitting and in not afterwards striking out evidence as to the confessions made by the accused to one Miller.
It appeared that Miller accompanied the officer who made the arrest, and that after the arrest was made and as they were riding together in a buggy, Miller said to the accused: “Are you not ashamed of this matter? I know your father and you had better tell me so I can tell him all about it, so that he can help you.” It seems clear to me that what was said in answer to this was neither “forced from the mind by the flattery of hope nor by the torture of fear.” The person who held out the inducement in this case, if such it could be called, had no power or authority, nor did he pretend to have, to do anything for the accused, except to inform his father of the transaction, from whom the expected help was to come. Had the inducement been made in an ambiguous manner, so that the accused may or could have supposed that the officer who was present was the one who should help him, it would have been very different. Such, however, was not this case. The help was to come from a particular person, the father of the accused, who, from aught that appears, neither had, nor could be supposed to have, any power or authority whatever to influence in any way the officers of the law or the complaining witness or her friends. Not only this, but it is not apparent what right Miller had to make such an agreement or hold out such a promise, or that it would be performed. The only legitimate inforence to be drawn from the inducement held out in this case would be that his father would aid and assist him in any prosecution that might afterwards be commenced. Such help when promised by a private individual is not in my opinion such a flattery of hope as to destroy the voluntary character of the confession made in consequence thereof. There doubtless have been cases which have gone farther than this, and which if followed would exclude what was said in ,this case; but in my opinion the better reason and weight of authority is the other way. 1 Greenleafs Evidence, § 219 et seq. and note.
Fifth. This objection relates to the refusal of the court to permit the witness Miller to detail the conversation that took place at the house of Mrs. Bull, and to give the conversation in the language spoken.
The conversation was partly in German, and the object in asking this detailed statement appears to have been to enable counsel, with the aid of Germans then present in court, to judge of the correctness of the witness’ rendering thereof, as already testified to by him. Without passing upon the right of counsel to cross-examine the witness for such a purpose, there is a clear and sufficient answer to the objection. The witness had already upon cross-examination given the conversation in the English language, and also as it was spoken by the parties, and counsel had' no right to complain, if the court refused to permit the witness to go over the same ground again. We doubt not but that if it had appeared or been seriously claimed that the witness had not correctly repeated or translated what was said, the court would have permitted farther inquiry. Such, however, is not this case as we understand it from the record.
Objection was made to certain questions asked the complaining witness as to the outeries made by her at the time the alleged offence was committed, and as to the length of time she was confined to her bed after-wards. It can hardly be seriously claimed that these were not proper subjects of inquiry, and as to the form of the question, it was, under the circumstances of this case, discretionary with the court / to permit questions somewhat leading in form to he asked.
Objection was also made to the refusal of the court to permit counsel upon cross-examination to use a map and have the complaining witness point out thereon the place where the offence was committed and other monuments in connection therewith. The prosecution and the court had already endeavored to have the witness, who was uneducated, understand this map and point out places thereon, but had failed, she having testified that she nothing about maps and had- never studied them. Under such circumstances no error was committed. It was evident that the lines upon the map' conveyed or represented nothing intelligible to her mind. To her, Chinese characters would have been equally legible and as easy to be understood.
Questions were raised upon .the cross-examination of the girl as to the clothing worn by her $t the time, and of Mrs. Bull as to the color of the mud found upon her dress. These matters had been gone into quite fully, and it does not appear that any important or additional information was excluded by the ruling.
Sixth. John B. White, a practicing physician and surgeon, was examined on behalf of the prosecution and testified to having made an examination of the person of the complaining witness; that he found certain injuries, one of which in his opinion had been done by a hard instrument more .or less sharp. Upon cross-examination he was asked whether in his opinion such injury could have been done with a sharp instrument, say a knife, under certain circumstances as set forth in the question. He was also asked to state with what other sharp instrument than one with a keen sharp edge it could have been done. He was then farther asked what kind of an instrument in his judgment produced that' wound, and in reply said he could not tell. The two previous questions were objected to and excluded, but for what reason does not appear.
From the nature of the charge in this case, if the injury in question was made by a hard instrument more or less sharp, it was wholly immaterial the kind of an instrument used or the manner of using it, or. whether the injury could have been done with a knife when the parties were in a certain position or otherwise. It was not claimed by the prosecution that this injury was done with a knife or at that particular time when the parties were in the position as stated in the question, more especially as the witness afterwards testifies that he could not tell with what kind of an instrument the injury was produced. We are of opinion, therefore, that these questions and those following, in reference to the probability of using such an instrument without injuring other parts, and of there being other wounds upon the person of the complainant, in case she made certain resistance, were under the circumstances, the forms of the questions and the issue in this case, properly excluded.
The question asked the witness McCarty as to the appearance of blood was properly excluded. Had the question been confined to the matter spoken of. by the witness upon his direct examination it would have been different, but the question asked was an abstract one, and. not proper to be asked this witness.
Seventh. Evidence was offered to show that a month or six weeks after the injury in question had been committed an examination was made in the wheat field, and again after the wheat was harvested, and that no signs of a struggle were then discovered. -
This was very properly excluded as being altogether too remote to be entitled to any consideration in the case. The same is true of the experiments made in attempting to lift girls over this fence for the purpose of contradicting the girl wherein she testified that the respondent had dragged her over the fence. Whether she was literally dragged over by force or got over ‘-voluntarily through fear was of but slight consequence in the case. Manufactured evidence is not the most reliable, and the cases are few where it ever should be admitted. This is not one of them.
Eighth. Error is alleged to the refusal of the court to give the second request to charge, which was as follows:
“ Should the jury find that the defendant had sexual intercourse with Sophia Dill, such intercourse would not be rape if she voluntarily submitted to him. The jury in order to convict should find from the evidence that the girl made the utmost resistance, and manifested the utmost reluctance in her power.”
The first sentence of this request was given in the language of the request and the second refused. In that connection the court said:
“In every case the will of - the female alleged to have been outraged must have been overcome either by force, violence, or fear; and to indicate whether or not such will has been overcome it is proper to consider whether or not she exerted herself to the utmost to prevent the commission of the outrage, and evidence showing that she did not so exert herself may properly be considered to determine whether or not she did not consent to the commission of the act. If she consents in the least there is not an opposing will and the crime as charged would not have been accomplished.”
The court then proceeded to refer to the evidence and to give other requests and then said:
“The defendant requests me to instruct you ‘that if you find that she did not make the utmost resistance, and manifest the utmost reluctance, that the offense of rape was not committed.’ You are to consider, gentlemen, the age of the girl, the timidity and fear which may have overpowered her on that occasion, and say whether or not, in your judgment, she did, in view of all the circumstances of the case, oppose the act thus attempted to be perpetrated upon her, or that was perpetrated upon her. on this _ occasion. Did she consent, or did her will oppose this act? The resistance that she made would simply be evidence of an opposing will. She might or might not make all the resistance within her power as her will might or might not be overcome with fear.”
Taking all that is said upon this subject it is not at all clear that the entire request was not given. In the first instance the court refused the request, but afterwards repeated it again to the jury as ,what he had been requested to charge, and then proceeded to instruct the jury as to what they were to consider in order to ascertain whether she opposed or consented to the act. My own impression is, that taking this request as read to the jury the second time, the court intended it as an instruction and the jury must have so considered it. But if this were not so, I am still of opinion that the court submitted the question to the jury under proper instructions. We have frequently held that even a proper request need not be given in the. language of counsel, if the court gives it substantially in the charge and in such a manner that the jury could not be misled by the refusal, and this we think was done in this case.
Exceptions were taken to the court’s review of and comments upon the testimony,- in charging the jury. We fail however to discover any error in this respect, or in what the court said to the fury on their return into court in answer to their question.
Upon a careful review of the entire record we fail to discover any error and the judgment must therefore be affirmed.
The other Justices concurred. | [
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Campbell, C. J.
Relator asks a mandamus to compel the respondent to admit him to the office of Clerk of the Superior Court of Grand Rapids, by receiving his bond and oath of office. This is resisted on the ground that by the old law the clerk of Kent county was made ex officio clerk of that court, and that the new law providing for a separate clerk is invalid.
The alleged reason of its insufficiency is that while the title of the act purports to revise and amend several sections of the old statute and to add several new sections, the particular provision is contained in a sec tion numbered 7, corresponding in number with an old section which is not mentioned in the title.
As was discovered in People ex. rel. Chapoton v. Common Council of Debroit, 38 Mich., 636, it is no uncommon thing in our amendatory legislation to number sections wrongly, or to append new sections to statutes without repealing others of the same numbers, so that duplicate numbers are often found in the same statute. In such case the later section may practically repeal older sections which are not repealed by name. The title to this act, when it refers to revising named sections and adding new sections to the statute has a very undefined field opened to legislation touching the court in question, and we are not prepared to say that because it may be awkwardly framed it is therefore invalid. Its purpose is plain and we think it may be carried out.
The practice of amending by reference to sections instead of by reference to subjects or to the entire statute is one which creates a great deal of mischief and in no way carries out the .real design of the Constitution, and is of no practical service in most cases in indicating what changes are to be made or what precise object is in view. It is liable to lead to dangerous ambiguities. And in the present case it is this method of entitling which has created all the difficulty.
The mandamus must be granted.'
The other Justices concurred. | [
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Marstqn, J.
While it is possible that under the proofs in this case the complainant has ■ equities which a court of chancery would enforce, — or that he has another remedy, upon which, however, we express no opinion, — it is clear that under the case as stated in his bill of complaint he is not entitled to the relief sought.
The case as stated in the bill of complaint is that David Abbe was seized in fee simple of the lands in controversy; that he was absent as a soldier in the army; that his wife Phcebe remained at home and had the charge and supervision of his business. It is farther set forth that complainant, in accordance with the solicitations of Phcebe Abbe, proposed to purchase this land and pay therefor the sum of four hundred dollars, providing David Abbe would consent thereto and convey to complainant; that thereupon Phcebe wrote her husband setting forth the proposition so made and requesting authority to sell the land, and that in answer thereto she received a letter authorizing her to sell the lands upon the terms stated, and that he, David, would sign a deed conveying the land to complainant if sent him, or if not, that he would do so on his return home; that complainant, relying upon such authority, agreed with Phcebe, as agent for her said husband, to so purchase the land, and agreed with her as to the price and time of payment thereof; that one hundred dollars was paid to said Phcebe and a promissory note executed and delivered to her for three hundred dollars, payable in six months from the date thereof; that a deed of the premises was prepared, signed by defendant Phoebe, acknowledged and delivered to complainant, in which deed a place was left blank for the signature of David Abbe. The bill farther sets forth that Mrs. Abbe informed her husband by letter of what had been done, and that in reply thereto he suggested that the deed be not forwarded him for execution as he would soon return home and would then execute it. It is farther stated that complainant has since then been in possession of the premises ; that soon after David Abbe returned home he was requested, but refused, to execute the deed, and still so refuses, and does not offer to give back the consideration paid. The bill prays that David Abbe be required to execute and, deliver to complainant a conveyance of the premises, and for general relief.
From this statement it will be seen that no deed or conveyance in writing, purporting to be subscribed by David Abbe, either in person or by an agent, authorized or unauthorized, was at any time executed, delivered to, or received by the complainant. The only written instrument was the deed of August 5th, 1865, which was not subscribed by David Abbe. Had Mrs. Abbe, claiming to act as the agent of her husband, subscribed this deed in his name, perhaps the case would be different, but such was not the fact. A blank space was left so that David Abbe might personally sign and execute the same.
As to David Abbe therefore, the agreement to sell, even admitting all that is set forth, was oral, and no such facts are presented by or set forth in the bill of complaint as to take this out of the operation of the provisions of our statute requiring such agreements to be in writing.
The decree of the court. below dismissing the bill of complaint without prejudice, must be affirmed with costs;
The other Justices concurred. | [
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Campbell, C. J.
Plaintiff sued defendant for a libel published in the Detroit Evening News, attributing to him gross professional misconduct, resulting in the death of a child. The defense was rested on the claim that the defendant had a right to publish the article as privileged, the plaintiff being one of the city physicians.
The article in question having referred to the action of the city authorities in providing for general vaccination, stated that the'Board of Health had ordered the use of pure bovine virus, and that the operation should be performed in a certain way which excluded the use of an instrument known as a trochar. It then proceeded as follows:
“Most of the physicians acted under the instructions of the Board of Health. Several, who thought they could make more money by ignoring the rule, did so. Notably Dr. Foster, the physician of the second district, who preferred to use the “trocar” with which he was enabled to perform vaccinations at the rate of 100 a day, instead of the 20 or 30 which would have been possible with the proper instrument. He has been several times called to account for his departure from the rules of the Board, but has persisted in his course, arguing that the “trocar” was a proper and safe instrument to use. At last
A TERRIBLE INSTANCE
has occurred, which completely refutes all the doctor’s arguments. There is no doubt in the mind-of any one who has taken the trouble to investigate the case bnt that James Connelly, the infant son of Mr. Connelly, residing at 162 Seventh street, died last night from the effects of an operation performed upon him some two weeks ago by Dr. Foster. The operation was vaccination; the instrument, the trocar. Mr. Connelly had three children, aged five, two, and one year respectively. Up to about two weeks ago they had been in comparatively good health. Then came Dr. Foster with his trocar and vaccinated them. Soon after all of them were sick, not alone with vaccine fever, but, according to the opinion of Dr. F. A. Spaulding, the physician who afterwards attended them, also with the scarlet fever. Where did the children get this latter disease? There was none of it in the neighborhood. The children were very young and were always kept in or about the house. The fact that the three were taken simultaneously with the same disease, and that it came on simultaneously with the vaccine fever, would seem to prove conclusively that the scarlet fever had been inoculated into their systems by Dr. Foster’s trocar, which had probably a few hours before __ pierced the arm of some scarlet fever patient in some' remote part of the city.
A HOME DESOLATED.
One of the children died Monday night. Another now lies at the point of death, and the third may yet die, thus leaving the parents childless.
The common council should immediately take this matter in hand and cause a thorough investigation to be made into all the circumstances of the case, and if Dr. Foster has been guilty of malfeasance, suspend him from office and cause him to be prosecuted for the same.”
After proving the publication of this and some similar articles, and the responsibility of defendant, plaintiff rested. Defendant introduced considerable testimony concerning the course of the common council and Board of Health, and the different methods of vaccination, and the acts and opinions of plaintiff. The court shut out all testimony offered by plaintiff on these subjects, and upon some other matters which can only be explained by the charge which took the whole case away from the jury, and directed a verdict for defendant, without giving any reasons therefor.
The only conceivable ground is the privileged character of the publication, which, as the case stands, wojild make it lawful, whether malicious or not, and whether founded on reasonable belief or entirely baseless.
We have not been able to discover on what theory the court below based any such charge as was given.
That the article if not privileged, was libelous, is beyond question. The authorities on the non-aetionable character of spoken words, have no necessary bearing on the character of written or printed libels. The doctrine is elementary that written articles which in any way tend to bring ridicule, contempt or censure on a person are libelous, and are actionable unless true or privileged. This article not only traced the death of one person and the sickness of others to plaintiff, but laid the blame on his willful misconduct upon sordid motives. . It was not claimed on the trial, and the plea disclaims the truth of the principal charge, that the trochar was used whether its use was or was not improper.
We are therefore not required to discuss the somewhat. extraordinary proposition that the city Board of Health are authorized to determine ex cathedra the methods of medical treatment.
The question is simply whether such false and damaging charges as have a necessary tendency to ruin the reputation and business of a medical man, may be made without responsibility to legal redress, simply because he happens to be a city physician.
It is not and cannot be claimed that there is any privilege in journalism, which would excuse a newspaper when any other publication of libels would not be excused. Whatever functions the journalist performs are assumed and laid down at his will, and performed under the same responsibility attaching to all other persons. The greater extent of circulation makes his libels more damaging, and imposes special duties as to care to prevent the risk of such mischief, proportioned to the peril. But whatever may be the measure of damages, there is no difference in liability to suit.
Allowing the most liberal rule as to the liability of persons in public employment to criticism for their conduct in which the public are interested, there certainly has never been any rule which subjected persons public or private to be falsely traduced. The nearest approach to this license is when the person vilified presents himself before the body of the public as a candidate for an elective office, or addresses the public in open public meetings for public purposes. But even in such cases, we shall not find support for any doctrine which will subject him without remedy to every species of malevolent attack.
But where a person occupies an office like that of a. city or district physician, not elected by the public, but appointed by the ^council, and subject only to removal by the council, we have found no authority, and we think there is no reason, for holding any libel privileged except a bona fide representation made without malice to the proper authority, complaining on' reasonable grounds. The case of Purcell v. Sowler, 1 C. P. D., 781, affirmed on appeal, 2 C. P. D., 215, is a case as nearly like the present one as is often found; and while the Court of Appeals — on this point differing from the lower court— held the office of public physician gave the public an interest in having it properly‘filled, it was held no discussion or publication was privileged, of facts charged against him, except when made in the course of a lawful proceeding against him.
The good, sense of such a rule can hardly be doubted. Every man’s reputation is as sacred as his property. He cannot complain when the truth is told. But he can always complain of falsehoods which are not told in an honest attempt .to make him responsible to a proper tribunal, or in some other performance of duty. The publication in such eases puts him in a direct way of having the truth established, and the wrong cannot usually be done without furnishing its antidote.
If a medical officer is charged in the public press with professional misconduct, the immediate and necessary effect is to destroy confidence in him and prevent him from gaining a livelihood by his profession. The readers of the paper have no means of investigation and may never have. The charges may never reach an investigation, and he may have no means of compelling one. If he is obliged to put up with such a wrong the consequences, will be monstrous. The law cannot recog nize any such immunity from responsibility, nor can the rights of individuals be so trifled with.
The case of Dickeson v. Hilliard, L. R. 9 Exch., 79, sums up the cases of privilege very neatly and briefly. In that case, without contemplating any petition or other method of examining into the facts, two days after an election, agents of one of the candidates sent to an agent of the other a document charging the plaintiff with bribery. This was held not privileged; and the court in deciding the point, mentioned the various divisions of privileged communications lying outside of those which were never questioned, and puts them in three classes. The first included such cases as Harrison v. Bush, 5 El. & B., 344, where a Iona fide attempt was made to have a magistrate removed from office by appealing to a person in authority. It was claimed that the application should have been made to the Chancellor instead of to a Secretary of State, but held that as the Queen herself was the acting power, a communication made to either officer was in effect made to her, and privileged if made in good faith to redress a grievance.
The second class included communications like those made by military officers to courts of inquiry or to the proper authority to aid in the prosecution of such inquiry. Dawkins v. Lord Rokeby, L. R. 8 Q. B., 255, affirmed 7 H. of L., 744, was such a case.
The third class included those cases in which information was given by one who was under a legal or moral duty to give it, to another who had a right to ask it. The most familiar instance of this is in answering inquiries concerning servants.
But as it was very well pointed out, there is, no right to make untrue and injurious statements concerning others when they are not made to persons having right and power to investigate, and in an honest attempt to invoke such investigation or answer such inquiry.
In. our opinion the libel in the present case was not privileged, and the plaintiff was improperly deprived of his remedy.
The judgment must be reversed with costs, and a new trial granted.
Marston and Graves, JJ. concurred.
Cooley, J.
The difficult problem in the law of libel is how to reconcile privilege with a proper protection of the rights of individuals. Privilege-in the law of libel implies some liberty of discussion and publication, and protection therein even though the discussion proves to be mistaken and the publication materially false. When privilege exists, therefore, individuals whose character or actions are impugned may suffer without remedy, and the plainest principles of justice require that immunity in injurious discussion should be- given only within such limits as may be justified on reasonable grounds. There are many cases in which the public benefits of free discussion are so great that privilege’ must be admitted even though individual injury may be serious; the one overshadowing the other to such a degree that only the public interest can be regarded when it appears that the discussion or publication has been -in good faith. But there are other cases where the public benefits of free discussion may be equalled or overbalanced by public evils, and where consequently the allowance of privilege might cause private injuries without any compensating public benefits except such as are offset by public evils. The present is a case of this sort.
The reason for permitting a privilege of discussion in the case of a city physician must be this; that by operating on public opinion through the means of public discussion, the board having power of removal might indirectly be influenced, and a removal brought about in the case of an unfit officer. But if the discussion proves to be wholly unwarranted by the facts, there is not only grievous private injury, but also serious public injury; public confidence in an officer whose duties are such as to render confidence extremely important to the continuous useful discharge of his- duties, is weak ened or destroyed unjustly when it ought rather to have been supported and strengthened. No such counterbalancing evils could exist where the party assailed was simply a person proposed for the office and not an actual incumbent; and in assenting to the conclusion of the court I confine my concurrence to the exact case before us. | [
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Marston, J.
Plaintiffs, co-partners in trade at Milwaukee in the State of Wisconsin, sold to defendant, doing business in Grand Rapids in the State of Michigan, spirituous liquors. This action was brought to recover a balance claimed to be due upon such sale.
The defendant interposes three objections to the right of plaintiffs to recover.
First, that the agreement under which these liquors were sold and delivered was entered into in Michigan, and therefore void under Comp. L. § 2137.
Second, that by the terms of the original agreement defendant had the right to examine the goods at Grand Rapids and return them if not as represented; that he was dissatisfied with the goods and offered to return them; that a part was returned, and under an arrangement made with plaintiffs’ agent in Grand Rapids a deduction was made upon the price of the goods retained; that the effect of such right of examination, return, offer to return and reduction in price, determined that the actual sale was made in this State, aside from all question of the validity of the contract considered as a Wisconsin contract or sale; and
Third, that if the contract was to be considered as a Wisconsin contract it was void under the statute of frauds of that State.
The referee in his finding of facts sets forth the circumstances of the sale: that defendant gave to plaintiffs’ agent, who called upon him in Grand Eapids, a verbal order for the liquors referred to; that the sale was to be on ninety days’ credit, and the defendant was at liberty to return the liquors if not as represented by the agent; “that the agent was to submit the order for the goods to plaintiffs, and if it met their approval, they should be sent.”
This finding brings this case clearly within the decisions of this court in Kling v. Fries, 33 Mich., 275 and Webber v. Howe, 36 Mich., 154, and disposes of the first objection. In accordance with the rule laid down in these cases, the original agreement in this case must be considered as made in the State of Wisconsin and not in Michigan.
As to the effect of the offer to return the goods and the reduction made in the price as set forth in defendant’s second objection, I do not see how this can be considered as the sale upon which the acceptance of the goods was made and the purchase price determined as claimed. It is true that here was an offer made to return the goods because not as represented. A part however had been sold by defendant at this time and could not therefore be returned, and there was also a reduction made from the contract price upon what was retained. At most this was but a modification of the original agreement. It did not abrogate or annul that agreement. It was rather a recognition of the validity and binding effect of the original agreement. The change made was a reduction of five cents per gallon from the price fixed in the original agreement. In all other respects the original agreement stood, and the rights of each party would be governed by the first agreement subject to the reduction referred to. Assuming as we must, under the decisions referred to, that the original agreement, under the findings of the referee, must be regarded as a Wisconsin contract, and therefore valid, unless in violation of the statute of frauds of that State, I certainly do not see how any subsequent agreement could legally have been entered into in this State, which could have the effect claimed. Our statute declares that all “contracts or agreements relating ” to the sale of liquors shall be utterly null and void. Under this statute the subsequent agreement entered into between plaintiffs’ agent and defendant in Grand Bapids, in relation to a reduction in price, may be treated as a nullity, thus leaving the original agreement in full force and unmodified. An agreement which the statute then in force declared to be null and void, could not destroy, change or affect a previous valid agreement between the same parties.
This being a Wisconsin contract, was there an accep.tance of the goods in compliance with the statute of frauds of that State ? The statute of Wisconsin declares such a sale void, unless 2d, “the buyer shall accept and receive part of said goods, or the evidences or some of them of such things in action.” By the terms of the agreement the goods were to be shipped by plaintiffs at Milwaukee, to Grand Bapids by boat, and at defendant’s risk, he to pay freight. The goods were so shipped about the 11th of February and received by defendant somewhere from the 12th to the 15th of the same month. A delivery to the carrier in Milwaukee would not, we think, take the case out of the statute, within the decisions heretofore made by this court. Grimes v. Van Vechten, 20 Mich., 412; Webber v. Howe, 36 Mich., 154. An acceptance by the buyer was necessary. Under the finding of the referee there can be no question as to the fact of an acceptance by the buyer at Grand Bap-ids. That such an acceptance would be good and sufficient to bind the defendant there could be no question, unless it can be said that until acceptance there was no contract; that the acceptance having been made in Grand Eapids the contract must be considered as having been then and there made, and consequently void under the statute of this state which prohibited such agreements.
For my own part I am not quite prepared to so hold. Were it not for the Wisconsin statute of frauds there could be no question as to the validity of this contract, and I do not clearly see how the time and place of the acceptance can, under such circumstances, be considered as the time and place of the agreement. A majority of the court is however of a different opinion, and consider that there was no binding agreement until an acceptance by the purchaser of the goods in Michigan, which made the contract a Michigan one and therefore void under the prohibitory liquor law, so called, then in force.
Under those circumstances the judgment will be reversed, and judgment entered for defendant with costs of both courts.
The other Justices concurred.
Graves, J.
Unless before the liquors passed the line of Wisconsin the circumstances were sufficient to establish a binding sale there, the judgment cannot be maintained. What are the facts as ascertained by the finding of the learned referee ? At Grand Eapids in this State the defendant ordered of Eindskopf Bros., at Milwaukee, in the State of Wisconsin, a bill of liquors: but under the condition that the liquors should be sent to be first examined and then to be kept or returned as it should or should not appear that they answered the requirements of the understanding under which the order was made. Eindskopf Bros, at Milwaukee, acceded to the terms of the order, and there acting upon them handed over to a carrier a lot of liquors to be transported to defendant at Grand Eapids. All further dealings were in Michigan. There was neither note nor memoranrandum in writing, nor payment of any purchase money. Was there any receipt or acceptance in Wisconsin in the sense of the statute of frauds? Unless there was, no binding sale was there effected. And I think the finding answers the question in the negative. The only act of receipt and acceptance in Wisconsin was by the carrier, and according to the finding that was under and expressly subject to an arrangement which forbids inferring from it a receipt and acceptance as elements of a present sale.
The reported facts distinctly show that his connection with the liquors could have no such meaning. He received them simply for carriage to Michigan, and in order that they might upon arrival be examined, with a view to their change of ownership here upon terms already agreed on, if found to correspond with the previous understanding. They were not yet the property of defendant and might never be. They passed the line of Wisconsin in the ownership of plaintiffs in order that they might be inspected, and might thereafter vest in defendant, if at all. The reception and assumption of custody by the carrier in Milwaukee for the special object found, was not of force to work a binding transfer in Wisconsin and make out an obligatory sale there against their statute of frauds. Benjamin on Sales, [2d Eng., 1st Am. ed.] Pt. II, ch. 4 and notes; Stone v. Browning, 68 N. Y., 598; Caulkins v. Hellman, 47 id., 449 and cases in brief; Meredith v. Meigh, 22 Eng. L. & Eq., 91; Knight v. Mann, 120 Mass., 219: s. c., 118 Mass., 143; Grimes v. Van Vechten, 20 Mich., 410; Hunt v. Hecht, 20 Eng. L. & Eq., 524; Frostburg Mining Co. v. New England Glass Co., 9 Cush., 115; Farina v. Home, 16 M. & W., 119.
Campbell, C. J. and Cooley J. concurred. | [
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] |
Campbell, 0. J.
In this ease a circuit court commissioner, on application to dissolve an attachment, having heard the testimony and allegations for and against the application, came to the conclusion that Blanchard was not, at the time the attachment was sued out, about to dispose of his property with intent to defraud his creditors, and dissolved the attachment. On this decision certiorari is brought.
We are not authorized on certiorari to review questions of fact; and inasmuch as the burden of proof is on the attaching creditor to satisfy the commissioner that the writ was well founded, the decision of the commissioner on the testimony iq not open to revision when he has fully passed upon it. Macumber v. Beam, 22 Mich., 395; Smoke v. Jones, 35 Mich., 409; Jackson v. People, 9 Mich., 111; Hyde v. Nelson, 11 Mich., 353; Cicotte v. Morse, 8 Mich., 424; Berry v. Lowe, 10 Mich., 9; Linn v. Roberts, 15 Mich., 443; Welch v. Bagg, 12 Mich., 41; McGraw v. Schwab, 23 Mich., 13; Overpack v. Ruggles, 27 Mich., 65.
Moreover, it appears from the record that before the commissioner no claim seems to have been made that there was no testimony to be considered in favor of respondent, and the affidavit for certiorari does not rest on a total want of testimony, but on an erroneous finding; and in this respect it resembles the ground set up in McGraw v. Schwab, which was held to present no question of law.
There was no error in allowing defendant to be examined as to his intentions, or in receiving evidence that plaintiff had been secured by collaterals. This testimony was relevant, and the commissioner was therefore right in receiving it.
The proceedings must be affirmed with costs.
Marston and Graves, JJ. concurred.
Cooley, J.
I agree with my brethren that on questions of the weight of evidence we cannot review these proceedings. But I do not agree that this case depends at all on disputed facts. Blanchard was a witness on his own behalf to disprove the prima facie case made against him, but instead of disproving it, he established it beyond dispute or cavil. He testified to his refusal to pay or secure the demand of the plaintiff, and .to his proceeding thereupon to cover up his property by mortgages for amounts in excess of the sums owing by him. Not the slightest attempt is made by him to explain or excuse those mortgages: there is no dispute concerning them on the facts, and they stand as conveyances whose fraud is unquestioned and unquestionable. | [
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] |
Campbell, C. J.
Plaintiff in error was sued on a labor debt, as a stockholder of the Michigan Iron Company, a corporation organized under the General Mining-law of 1853, which was adjudged a bankrupt in October, 1875. The debt sued on accrued previously.
The defendant in error recovered judgment in the court below, and error is alleged upon two grounds: first, that the remedy only lies against stockholders holding stock at the time of suit brought, and second, that the corporation was not joined as co-defendant.
Upon the first point it is not necessary to pass, as the testimony showed Mr. Tilden to have admitted his holding stock before the cause of action accrued, and the stock-book as introduced showed no subsequent transfer. If there had been any evidence of transfer before «uit the question would have been fairly presented, but in the absence of such testimony no such transfer can be presumed.
The other question presents the inquiry, whether the act of 1877, revising the legislation on the subject of mining and manufacturing companies, and repealing the •old laws, has so operated as to change the remedy and require the corporation as well as the stockholder to be sued in the same action.
The law of 1853 provides that a liability may be enforced “against any stockholders by action founded on this statute, at any time after an execution shall be returned and not satisfied, or at any time after an adjudication in bankruptcy against such corporation.” Comp. L.} 1871, § 2852.
No form of action is prescribed, and the suit could be brought in common law form setting forth the facts by which the liability had been established. On such action an execution would at once have issued against •the stockholder sued.
The statute of 1877, 'repealing all the former acts with a saving clause of all. rights not inconsistent with the new act, contains the following provisions:
“The stockholders of all corporations existing hereunder shall be individually liable for all labor performed for such corporation, which said liability may be enforced by action in assumpsit commenced within two years from the time when payment .for such labor became due, and. not afterwards. Every action against any stockholder for labor heretofore performed for any such corporation shall be brought within two years after this act takes ■effect, and not afterwards, but this shall not be construed as reviving any cause. of action already barred by any statute of limitations, nor shall it include any cause of action, the right to sue "for which will expire in less than two years after- this act takes effect, by virtue of some existing statute of limitation. Suit for such labor may be commenced against any or all the stockholders and the corporation jointly; but no levy shall be made upon the property of stockholders under an execution issued upon such judgment until the property of the corporation shall have been exhausted, and the clerk of the court issuing such execution shall endorse thereon a direction to the officer to that effect.”
This action is in no sense a common law action in its incidents, although called an action of assumpsit,' and is purely statutory. It is not disputed that plaintiff below could have resorted to it. The question is whether he had lost his former remedy.
Under the old law he could sue either after execution unsatisfied pn a judgment against the company, or after its bankruptcy determined; and he could not sue otherwise. Of course if the company had not been put in one or the other of these predicaments no cause of action had accrued when the law of 1877 was passed, and its form of remedy was in some cases practically better and speedier than the old one. But in the present case the cause of action had completely accrued before the statute of 1877 was passed, and an action in common law form lay upon it. ' We see no reason why the permissive words of this statute should be regarded as mandatory, and as compelling as well as allowing a joinder of parties not before required, and a new suit in some cases, which would be of no possible use. The unsatisfied judgment on the decree in bankruptcy would both indicate the insolvency of the corporation and the fruitlessness of a new judgment or execution against it. We cannot ■ see that allowing an action to be brought against the stockholder alone under the fixed liability is in any way inconsistent with the permissive clause of the new law, and the reasons are all in favor of preserving the-old right, because some injustice would be done by postponing the issue of execution against the stockholder sued, which might work prejudice. And if the cause of' action depended, as it might have done, on the return of an execution unsatisfied before suing the stockholder, tbe application of the statute of 1877 would compel a new suit against the corporation on a claim already in judgment against it, and a new execution to be issued and returned unsatisfied, when a similar remedy had already been exhausted.
We think plaintiff below had a right to enforce his remedy when the new law was passed, and that the new statute did not destroy it.
There is no error in the record, and the judgment must be affirmed with costs.
Marston and Graves, JL, concurred. | [
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] |
Campbell, C. J.
The bill in this case, stated briefly, sets up the assignment by Esau Tarrent to Bodgers of a certain patent, and a procurement of a re-issue to Bodgers as such assignee. It avers that the consideration of the assignment was an agreement by Bodgers to make enough machines to supply the American market, and pay a royalty of $40 on each one sold, — to endeavor to get the machine largely circulated, and to report all sales. It also avers that when it was proposed to obtain the re-issue it was further agreed that Rodgers should prosecute past and future infringers and get royalties from infringers, and increase the business so as to manufacture enough to supply the United States’ demand, and license others to manufacture machines.
It then avers that persons who had before infringed ceased to do so after re-issue, and others sought to get license to manufacture which Rodgers refused, and that he has neglected to manufacture in many cases when he could have done 'so.
That in December, 1875, Esau Tarrent sold out his rights to complainant.
That Rodgers has compromised with various persons before and since the assignment to a large amount not known, and has not’paid over the royalty; that infringements are now going on which he will not prosecute; that he has not reported sales; that he refuses to use reasonable means to introduce and manufacture the machines.
The prayer of the bill (which waives an answer under, oath) is that he account for sales and settlements; that the assignment and re-issue be declared void as to the interests of Esau Tarrent and complainant, and Rodgers decreed to re-assign the same, or that.he be decreed to authorize complainant to prosecute, compromise or settle with infringers, or assign the patent to complainant.
This bill was demurred to and the demurrer sustained for uncertainty and some other defects.
We think the demurrer was properly sustained. The agreement, set forth is contradictory as well as vague, and is not of such a nature that any court could grant specific performance. The grievances so far as appears, are susceptible of a legal remedy, and most of them of no other. An answer under oath being waived no ground of relief can be set up which rests merely on the necessity of a discovery. In the absence of any argument on behalf of the defendant, we do not deem it profitable to extend our remarks upon the various defects. The bill contains nothing whatever with reasonable certainty.
The decree must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
In the report of this case as it appeared in this court before, are given the contract between the parties, and the facts as they were presented on the former trial. See 34 Mich., 375. A second trial has resulted in a judgment for Dease of $3151.41, and the case again comes up on exceptions.
The claim of Dease was for the value of logs aggregating about a million feet, which it was conceded had been delivered under the contract, and of a small quantity got out but not delivered. Chapman, it was agreed, had advanced to Dease under the contract $7540 in payment from time to time, and though he had sometimes '■ been in default in making payments, the aggregate was all Dease was entitled to as advances on the logs actually delivered. Dease claimed, however, that he was prevented from delivering more by the failure of Chapman to make advances as he had agreed, §nd that therefore he was at liberty to abandon the contract and sue at once for the value of all the logs received by or got out for Chapman, less the moneys Chapman had advanced. Chapman on the other hand claimed that Dease had been continuously in the wrong, because the logs actually delivered were not contract logs.
Contract logs were logs running twenty-five per cent to uppers. It appears without any dispute or controversy that the logs actually banked and marked by Dease only run about twenty per cent, to uppers. His default, therefore, seems manifest; and upon this ground he would go out of court if Chapman had not from time to time been in default as already stated.
The circuit judge, however, left it to the jury to find that Dease was not in default at all, and instructed them that if his failure to go on and make good the stipulated quality of logs -by further deliveries was due to the failure of Chapman to make the advances he had agreed upon, then Dease was chargeable with no breach of the contract. This instruction assumed that Dease was at liberty in his discretion to deliver first a quality of logs not answering the terms of the contract, and to make up the deficiency subsequently.
The circuit judge overlooks the fact that the contract only obligated Dease to deliver 1,000,000 feet of logs: his delivering more was optional with him. When he delivers that quantity, how can it be said that he has kept his agreements thus far, when the logs delivered fall far below the agreed average? He may or may not at his option go farther; and however it may have been as to any smaller quantity, there can be no question that when he delivers all he could have been required to deliver, he must show that in quality they comply with the contract, or he is in default. This is so in reason, and it is so also by the express terms of the contract itself, which requires the first million feet of logs to be contract logs. They are not contract logs if they are not of the quality agreed. Had these been all deliverable at one time, and been tendered, it is plain that Chapman would not have been bound to receive them, for this very reason, that they did not comply with the contract.
Dease was then in default, and his recovery — if he is entitled to recover — must be measured with that fact conceded. He can recover no more than the contract price for the logs, and'from this must be deducted the difference between the value as they were, and what it would have been had the quality been as agreed. Chapman may also be entitled to interest on advances, as shown by the opinion on the previous record, and also to any expense he may necessarily have incurred in obtaining delivery of ‘ such logs as were actually banked for him but not delivered. The case must go back for a new trial, and Chapman must recover his costs of this court.
The other Justices concurred. | [
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] |
Cooley, J.
The plaintiff in error is sued as maker of three promissory notes and endorser of a fourth, all of which are copied in the margin. By reference to these notes it will be seen that the name of plaintiff in error is subscribed or endorsed by W. B. Wetmore, and the contest has been made over his authority to make use of the name of plaintiff in error as he has done. The New York Mine is a corporation, having its place of operations at Ishpeming in this State. It was organized some fourteen years ago, with Samuel J. Til-den and William L. Wetmore as corporators. Mr. Tilden has had the principal interest from the first, and has always acted as president and treasurer, keeping his office in New York city. Mr. Wetmore has always until this controversy arose acted as genbral agent with his office at Ishpeming. The board of direction has been made up of these gentlemen with some nominal holders of stock in New York city as associates. Meetings of the board appear to have been held very seldom, and the whole business of the company has been done by Mr. Wetmore and Mr. Tilden, the latter looking after the finances, and visiting Ishpeming only twice or three-times during the whole period of the corporate existence. Mr. Wetmore hired and paid all the miners and other laborers, and transacted such other business as is usually taken charge of by a general agent whose principal-is at a distance. As such agent he has paid out in all upwards of $3,000,000; the payments being generally made in drafts on Mr. Tilden, or in the proceeds of such drafts. For a while the drafts were on time, but latterly the financial condition of the corporation has ■ been easy, .and only sight drafts have been drawn. The firm of Wetmore & Bro. named in the three notes purport ing to be made by the New York Mine, was composed of William L. and F. P. Wetmore, and there was evidence that the New York Mine had had business transactions with that firm to the amount in all of $125,000. The Munising Iron Co. was a -corporation of which W. L. Wetmore, as its note shows, was the president.
It was not claimed on the trial that there had ever been any corporate action expressly empowering Wet-more as general agent to make promissory notes, nor did it appear that he had ever executed any in its name except a few, as hereinafter stated. Some evidence was put in which it was claimed had a tendency to show the existence of a general custom in the mining region for the general agents of mining companies to make promissory notes in the names of their principals without special authorization, but as there was no showing that authority was not generally given, the attempt was a manifest failure. It was also insisted on the part of the plaintiff that as matter of law, the general agent of a mining corporation by virtue of his appointment as such had authority to bind it by commercial paper, and that the court must take notice of his authority, as they must of the authority of the cashier of a bank, the master of a vessel, or other known agents. Adams Mining Co. v. Senter, 26 Mich., 73, 76. On the other hand the defense contended that the authority to issue commercial paper was not implied in any general agency, and when conferred must be strictly construed, and In its exercise strictly limited to its exact terms; and that an authority to draw bills would not authorize the making of notes. And it was further contended that even if authority to make notes was implied, the particular notes in suit were presumptively not within the authority; three of them being drawn by Wetmore as agent, payable to the order of a partnership of which he was one of the members, and prima facie for the benefit of that partnership, while the other like these was made by Wetmore in one capacity and endorsed by him in another, so that apparently he was dealing with himself in making and negotiating all of them.
It was not disputed by the defence that the corpora* tion as such had power to make the notes in suit. The question was whether it had in any manner delegated that power to Wetmore. We cannot agree with the plaintiff that the mere appointment of general agent confers any such power. White v. Westport Cotton Manf’g Co., 1 Pick., 215, is not an authority for that position, nor is any other case to which our attention has been invited. In McCullough v. Moss, 5 Denio, 567, the subject received careful attention, and it was held that the president and secretary of a mining company, without being authorized by the board of directors so to do, could not bind the corporation by a note made in its name. Murray v. East India Co., 5 B. & Ald., 204; Benedict v. Lansing, 5 Denio, 283; and The Floyd Acceptances, 7 Wall., 666, are authorities in support of the same view. The plaintiff, then, cannot rest its case on the implied authority of the general agent; the issuing of promissory notes is not a power necessarily incident to the conduct of the business of mining, and it is so susceptible of 'abuse to the injury, and indeed to the utter destruction of a corporation, that it is wisely left by the law to be conferred or not as the prudence of the board of direction may determine.
But it was further insisted on the part of the plaintiff that though Wetmore may never have had the corporate authority to make notes in the corporate name, yet that the course of business was such, with the express or implied assent of Mr. Tilden, as to lead the public to suppose that his authority was ample, and that this course of business should be conclusive in favor of those who had taken the notes in good faith relying upon it. In support of this' position evidence was given that Wetmore was in the practice of taking notes from the creditors of the corporation, and procuring them to be discounted on his indorsement as general agent; and it appeared that the note of $1000 counted on in this case was made for a balance remaining unpaid on a much larger note made by the Munising Iron Co. payable to the order of defendant and discounted by the plaintiff. And on this part of the ease we are of opinion that enough appeared to warrant the jury in finding that this practice of Wetmore to indorse the paper of the company for collection or discount was known to Mr. Tilden and not objected to by him; that parties taking such paper had a right to believe the indorsement was authorized, and that it was made in the interest of defendant, and not in fraud of its rights.
It was also shown that within the three or four years preceding the commencement of this suit Wetmore had made a few notes in the name of the defendant which he had procured to be discounted. But it was not shown that Mr. Tilden knew of the making of any of these notes until a short time before this suit was brought, and his evidence, taken on commission, was offered to show that when the existence of such notes first came to his knowledge, he took immediate steps to remove Mr. Wetmore from his agency, and to have notice given to the parties concerned that the notes were issued without any authority whatever, and would not be recognized. This evidence, on objection for the plaintiff, was ruled out.
So far as we can judge from this record, there is no ground for the suggestion that Mr. Tilden had knowledge that such notes were being issued, or any reason to suspect that such was the fact. It seems probable that Wetmore made the notes in his own interest, or in the interest of some other concern with which he' was connected, and not in the interest of "the New York Mine. Nor do we 'think there was anything in the course of the business as it had previously been conducted by him that should have led parties to take such notes without inquiry. It had been customary to transmit to Mr. Til-den the bills receivable and all moneys, and to draw against them in paying demands against the company, and in providing funds to meet its current necessities; but this was a suitable, proper and prudent mode of doing the corporate business, and tended rather to negative than to support the existence of any authority in Wetmore to make notes. Indeed, it is difficult to understand how the putting out of notes could have been either necessary or convenient. Time drafts would accomplish quite as well any honest purpose that could have existed for making them, without at the same time exposing the corporation to the same risks; for the drafts would necessarily go forward to the financial officer of the corporation for payment, and would appear when paid, in the corporate accounts, while the notes, if fraudulently issued, might be kept from that officer’s knowledge for a long time, perhaps for years, and, if the fraud was successfully carried out, perhaps permanently.
But it is further, insisted on the part of the plaintiff that the defendant corporation is chargeable with negligence in suffering Wetmore to manage the business independently as he did for so long a period, and that this negligence was so gross and so likely to mislead as to call for the application of the familiar and very just ■ principle, that where one of two innocent parties must suffer from the dishonesty of a third, that one shall bear the loss who by his negligence has enabled the third to occasion it. Merchants Bank v. State Bank, 10 Wall., 604; Bank of United States v. Davis, 2 Hill, 465; Holmes v. Trumper, 22 Mich., 427-434; Farmers’ etc. Bank v. Butchers’ etc. Bank, 16 N. Y., 133; Welland Canal Co. v. Hathaway, 8 Wend., 480; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y., 30.
While the principle invoked is a very just and proper one, it is one that must be applied with great circumspection and caution. Any person may be said to put another in position to commit a fraud when he confers upon him any authority which' is susceptible of abuse to the detriment of others; but if the authority is one with which it is proper for one man to clothe another, negligence cannot be imputed to the mere act of giving it. Any one who entrusts to another his signature to a written instrument furnishes him with the means of perpetrating a fraud by an unauthorized alteration or other improper use of it. But if the instrument was a proper and customary instrument of business, and has been issued without fraudulent intent in a business transaction, there is no more reason for imposing upon the maker the consequences of a fraudulent use of it than there is for visiting them upon any third person'. In other words, it is not the- mere fact that one has been the means of enabling another to commit a fraud that shall make him justly chargeable with the other’s misconduct; but there, must be that in what he has done or abstained from doing that may fairly be held to charge, him with neglect of duty.
If neglect of duty is- imputed in this case, it is important to know in what it consists^ The argument made for the plaintiff directs our attention to the following facts:
1. Mr. Tilden and Mr. Wetmore were the" sole corporators having substantial interests,' and without any supervision by Mr. Tilden, Mr. Wetmore has been suffered for many years to manage the business at the mine as he pleased; the public dealing with no other person, either natural or artificial, and having no reason to suppose that anj¡ one was reserving from Mr. Wet-more any authority or questioning his power to act for the corporation- and make use of its name and its credit to the full extent that any one might use them under corporate authority. And the making of promissory notes is an act so similar in all respects to that of drawing bills, and so likely to be conferred where the other is given, that one might fairly infer its existence in this case in view of the extensive use made by Wet-more of bills in the corporate business.
2. Mr. Tilden and Mr. Wetmore have conducted the corporate business as if they were partners; Mr. Wet-more exercising unlimited authority at one place and Mr. Tilden at the other; and the public had a right to suppose that they were trusting each other to the full extent that partners do and must; and therefore that Mr. Wetmore might bind himself and Mr. Tilden, — or what is the same thing — might bind the corporation, by notes in its name.
8. These views are strengthened by the fact that the corporators did not for years hold corporate meetings or go through the ordinary corporate forms of election, as they should have done, and would be expected to do if they expected to insist upon the application of strict rules in the corporate dealings with others.
These are the facts which are supposed to have enabled Mr. Wetmore to impose upon the public with an appearance of authority which had not been conferred upon him. So. far as the neglect to hold corporate meetings or to go through corporate forms is concerned, there is no ground for making it cut any figure in the case. It does not appear that this plaintiff was influenced by any such neglect or knew anything about it; and from anything that appears their action would not have been affected by it in any .way. It is therefore a fact entirely foreign to this controversy.
Neither do we perceive that the fact that Tilden and Wetmore conducted their business as if they were partners concerns this plaintiff in any manner. If Wetmoré had dealt with the plaintiff in the character of a partner, and had by Mr. Tilden’s course been enabled to deceive the bank officers into the belief that they were partners, the case would be different.' But the plaintiff has dealt with no partnership: the notes sued upon were given as corporate notes, taken as corporate notes, and are now sued upon as corporate notes. The plaintiff must therefore make out a corporate liability; and as Wetmore gave the notes assuming to be empowered thereby to pledge the corporate credit, it is of no importance whatever that perhaps he might have pledged his associate as a partner had he attempted to do so, and had the plaintiff taken from him paper that purported to be the paper of partners. For the purposes of this ease it is sufficient to say that is not the case the pleadings make.
Nevertheless the plaintiff is perfectly right in the argument that the corporation must be held responsible for any appearances which these two corporators held out to the public whereby the plaintiff has been deceived to its prejudice. The plaintiff is therefore entitled to all that can be claimed from Mr. Wetmore’s course of business as general agent, so far as it was known to Mr. Tilden. Now Mr. Tilden knew that Mr. Wetmore was managing the business as general agent, with little or no supervision by any one; but it would be very dangerous to hold that this should charge him with Mr. Wetmore’s frauds. There was nothing in this that might not happen in any case where the business was conducted by an agent at a distance from his principal; say by an agent in New York for his principal in London, or by an agent in San Francisco for a principal in one of the Atlantic cities. Mr. Tilden also knew that,Mr. Wet-more was drawing and negotiating bills upon him in the name of the corporation; but this was a proper and customary mode of dealing as between principal and agent, and we see nothing in it calculated to mislead any one into the supposition that Mr. Wetmore was empowered to do for the company any thing not customary for such agents to do, and not included in the authority Mr. Tilden knew Mr. Wetmore to be exercising.
But before the maxim which the plaintiff invokes can be applied to the case, it is necessary to determine not only that fault is imputable to the defendant, but also that the plaintiff is free from negligence. There must be one innocent party and one negligent party before the requirements of the maxim are answered; aná the conduct of the plaintiff is therefore as important as that of the defendant. Was the plaintiff in this case free from negligence in discounting the three $5,000 notes? In law the officers of the bank must be held to have known that Mr. Wetmore had no right to make such paper without express authority, and we look in vain for any evidence that they demanded proof of such authority, or extended their inquiries beyond the agent himself. Moreover there was that on the face of these notes to, suggest special caution; they were made by Mr. Wetmore in one capacity to himself and his associate in another capacity, and they indicated, or at least suggested an interest on his part in making them which was adverse to the interest of his principal.
The notes also bore the largest interest admissible under our statutes; and this fact, in the case of a corporation whose credit was such that its paper would be readily discounted, and having its office in the city of New York, might well have arrested attention. We do not think that when the bank discounted such paper without inquiry into the authority of Wetmore, it gave such evidence of prudence and circumspection as placed it in position to complain of Mr. Tilden’s course of business as negligent. A fair statement of the case for the plaintiff is that both parties have been overtrustful in their dealings with Mr. Wetmore; the defendant not more so than the plaintiff. Unfortunately for the plaintiff, the consequences of the overtrust have fallen upon its shoulders.
The circuit judge in his instructions to the jury assumed that there was evidence in the case from which they might find that Wetmore was held out to the public as possessing the authority he assumed to exercise. We find no such evidence and there must therefore be a new trial. The ease of the $1000 note is different, as already explained.
Some of the proceedings on the trial require atten tion, and especially the rule of cross-examination laid down by the circuit judge when Wetmore was on the stand as a witness for the plaintiff. Wetmore was manifestly a willing witness, and made such showing as was in his power in support of the authority which as general agent he had assumed to exercise. But although he was the first witness called, and the case involved nothing but paper made or indorsed by himself, he was not asked respecting his signatures, and the notes were not offered in evidence while he was upon the stand. The reason for this was apparent as soon as the cross-examination commenced, for when the witness was asked any questions concerning the notes, the purpose of which was to show that he had signed or indorsed them without authority and in fraud of defendant, and that he had admitted that such was the fact, objection was at once interposed on behalf of the plaintiff, and the circuit judge, remarking that the witness had given no testimony in reference to the notes, nor had any testimony been introduced by any other party in reference to them, nor had the notes been put in evidence, sustained the objection.
The question of the proper range of cross-examination has been discussed in this State until it would seem that further discussion must be entirely needless. People v. Horton, 4 Mich., 67, and Campan v. Dewey, 9 Mich., 381, would support the ruling of the circuit judge. But those cases have been repeatedly overruled. In Chandler v. Allison, 10 Mich., 460, 473, Mr. Justice Campbell undertook to lay down the proper rule. The object of cross-examination, he there explained, “is to elicit the whole truth concerning transactions which may be supposed to have been only partially explained, and where the whole truth would present them in a different light. Whenever an entire transaction is in issue, evidence which conceals a part of it is defective, and does not comply with the primary obligation of the oath, which is designed to elicit the whole truth. If the witness were, as he always may be, requested to state what he knows about it, he would not do his duty by designedly stopping short of it. Any question which fills up his omissions, whether designed or accidental, is legitimate and proper on cross-examination. When the answers are given the nature and extent, of the transaction become known from a comparison of the whole, and each fact material to a comprehension of the rest is equally important and pertinent. A party cannot glean out' certain parts, which alone would make out a false account, and save his own witness from the sifting process by which only those omissions can be detected.” One might suppose after reading this language, that it was written in anticipation of the proceedings in this very ease; and for the specific purpose of expressing in clear and pointed terms the rule of law applicable to these very facts. Here the matter in issue was confined to the single point of Wetmore’s authority, to make and endorse the paper sued upon; the questions on behalf of the.plaintiff had been carefully restricted to that part of the facts which it was supposed would tend in its favor, and in respect to which a cross-examination could not be damaging, and were intended, instead of eliciting the whole truth, to conceal whatever would favor the defense: the witness, instead of being required, according to the obligation of his oath, to tell the whole truth, had been carefully limited to something less than the whole, and when questions were asked calculated to supply his omissions, they were ruled out because they did not relate to the precise circumstances which the plaintiff had thought for its interest to call out. It would be difficult to present a more striking illustration of the error in the rule in People v. Horton than is afforded by this case; for here was the principal actor in the transaction under investigation brought forward as a witness to support his own acts, but carefully examined in such a manner as to avoid having him utter a single word regarding the main fact, — though it was peculiarly within his own knowledge,-' —and even his hand-writing was left to be proved by another. In that manner he was made to conceal not merely a part of the transaction but the principal part, and made to tell not the whole truth according to the obligation of his oath, but a small fraction of the truth only; a fraction, too, that was important only as it bore upon the main fact which was so carefully kept out of sight while this witness was giving his evidence. It is true the defense was at liberty to call the witness subsequently, but this is no answer: the defense was not compellable to give credit to the plaintiff’s witness as its own for the purposes of an explanation of facts constituting the plaintiff’s case, and a part of which the plaintiff had put before the jury when examining him. One of the mischiefs of the rule in People v. Horton was that it encouraged a practice not favorable to justice, whereby a party was compelled to make an unfriendly witness his own, after the party calling him had managed to present a one-sided and essentially false account of the facts, by artfully aiding the witness to give such glimpses of the truth only as would favor his own side of the issue.
What has been said on this point has in substance been said many times before. Haynes v. Ledyard, 33 Mich., 319; Hamilton v. People, 29 Mich., 173; Campau v. Traub, 27 Mich., 215; Wilson v. Wagar, 26 Mich., 452; O’Donnell v. Segar, 25 Mich., 367; D. & M. R. R. v. Van Steinburg, 17 Mich., 99; Thompson v. Richards, 14 Mich., 172; Dann v. Cudney, 13 Mich., 239. The necessity of repeating it is a singular illustration of the difficulty with which a mischievous but plausible precedent is sometimes got rid of.
The question put to Wetmore on cross-examination, whether he had not admitted his fraud in the issue of this and similar paper, should have been allowed, as bearing directly upon the trustworthiness of his evidence. The evidence of Mr. Tilden that the directors repudiated this paper as soon as it came to their knowledge was also admissible. The repudiation could not. invalidate paper issued with proper authority, but it could and would preclude those forcible inferences that would naturally be drawn in favor of the legitimacy of the paper, in the absence of any showing that protest was made when its existence became known.
Many subordinate questions are rendered immaterial by the views expressed on the main question.
The judgment must be reversed with costs, and a new trial ordered.
The other Justices concurred.
$5000. Marquette, Mich., April 26, 1877.
Sixty days after date we promise to pay to the order of Wet-more & Bro., five thousand dollars at Nat. Bark Bank, New York, value received.
No. Due June 25-28. New York Iron Mine.
Endorsed, Wetmore & Bro. By W. L. Wetmore.
Protest fees 1.26.
$1000. Marquette, Mich., April 30, 1877.
Sixty days after date the Munising Iron Company promises to pay to the order of New York Iron Mine one thousand dollars at First National Bank, Negaunee, Mich., with exchange, value received.
E. P. Williams, Secretary. W. L. Wetmore,
No. 332. Due July 2, 1877. President.
Endorsed, New York Iron Mine.
By W. B. Wetmore.
Protest fees 1.50.
$5000. Marquette, Mich., May 1, 1877.
Sixty days after date we promise to pay to the order of Wet-more & Bro., five thousand dollars at the Nat. Park Bank,' New York, value received.
No. Due July 3. New York Iron Mine.
.Endorsed Wetmore & Bro. By W. L. Wetmore.
Protest fees 1.26.
$5000. Marquette, Mich., May 6, 1877.
Sixty days after date we promise to pay to the order of Wet-more & Bro., five thousand dollars, at the First Nat. Bank, Chicago, 111., value received.
No. Due July 5-8. New York Iron Mine.
Endorsed Wetmore & Bro. By W. L. Wetmore.
Protest fees 2.59. | [
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] |
Graves, J.
Miller, a resident of the city of Grand Eapids, brought suit in the Superior Court against the plaintiffs in- error. It was commenced by declaration and described his residence but not that of plaintiffs in error. The cause of action was a joint obligation of plaintiffs in error as partners and covenantors in a lease. Service was personal on Jacobson in the city and on Gunzberg in Berrien county. Jacobson pleaded the general issue, but Gunzberg declined to appear and his default was entered. The issue raised by Jacobson was tried by jury and Miller recovered and the court entered a joint judgment in common form against both Jacobson and Gunzberg, and they unite in bringing error. The objection taken to the judgment is that by service on Jacobson within the city and on Gunzberg elsewhere the court acquired no jurisdiction over Gunzberg, and that as he has not submitted to jurisdiction the judgment is.- erroneous.
The counsel for defendant in error not disputing the proposition that the court acquired no jurisdiction over Gunzberg by the service upon him, contends that the consequence drawn is fallacious. The position is that conceding the service on Gunzberg to be void, still the service on Jacobson was regular and his submission to the jurisdiction conclusive (Grand Rapids, N. & L. S. R. R. Co. v. Gray, 38 Mich., 461), and as the obligation sued on was joint, it was entirely regular to enter a joint judgment in the form actually pursued. Comp. L., §§ 6146-50. The court is of opinion that this position is right. The state of the case will admit of no question now. The plaintiffs in error stand as joint debtors and the judgment is in form against both. This the statute authorizes and hence there is no error. As to this, Mr. Gunzberg is in no worse position than any other joint judgment debtor not served.
The fact that ineffectual steps to effect lawful service on a joint debtor are taken cannot impair the right to enter a joint judgment, and in case there is an underlying question as to the sufficiency of the service in point of law to bind such debtor personally, it can only be solved when it comes up in some practical way and cannot be anticipated and .ruled upon in advance. It must be presumed that the court below will confine the enforcement of the judgment within lawful bounds and will not permit a defendant named in the record to be personally held unless he should be.
It will be time enough to consider whether Mr. Gunzberg ought to be so held when attempt is made to enforce the judgment against him in a mode and to an extent not permitted by the statute relating to joint debtors in respect to such as are not served.
No error is shown and the judgment must be affirmed ■with costs.
The other Justices concurred. | [
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Marston, J.
We are of opinion that the court erred in withdrawing this case from the consideration of the jury, and in charging that the facts proved were not sufficient to entitle the claimant to a verdict.
The case should have been submitted to the jury under proper instructions, as it was for them to say whether, under all the facts and circumstances in the case, there was a promise to pay.
The relationship existing between the parties at the time the claim accrued would not be conclusive against the right to recover, even although no express promise to pay was proven. No absolute rule can be laid down; each case must be determined as it arises. Facts apparently light and trivial may in one case indicate that no compensation was intended or contemplated by either party, while in another, the same or similar facts, in the light of all the surrounding circumstances, such as the degree of relationship existing, the wealth and social position of the respective parties, the services performed, and the nature and character of the same, may with more or less clearness point to an entirely different conclusion. The charge of the court must have proceeded upon the theory that the relationship existing, in the absence of an express promise, was a complete legal bar to 'the right to recover in any and all such cases. Such we think is not the law. It may raise a strong presumption, but’ it is not by any means conclusive.
The judgment must be reversed and a new trial ordered, with costs.
The other Justices concurred. | [
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Graves, J.
The court below having allowed a recovery of damages against the company on the allegation that John Handford, the intestate of defendant in error, whilst observing due care to «.keep out of the way of their cars, was by means of their negligence run against and killed, the case has been brought here on writ of error.
The court was asked to instruct the jury against recovery on the ground that upon the undisputed facts relating to the subject, it was established unequivocally that the deceased was not using due care to keep out of the way, and that his own negligence directly contributed to the fatal result. The request was refused and the case was given to the jury in terms implying that a verdict for damages would not be incompetent, and the main question arises on this ruling. Whether there was any evidence for the jury that the company were negligent need not be considered.
The record discloses no special peculiarities to distinguish the case from others where the question of contributory negligence is distinctly presented without any circumstance to qualify it, and the judgments given in the Lake Shore & Michigan S. R. R. Co. v. Miller, 25 Mich., 274 and in Kelly v. Hendrie, 26 Mich., 256, sufficiently exhibit the views of the court upon the general subject. No particular discussion .is needed.
A brief refence may be made to 'the chief and undisputed facts relating to the question, which were developed during the trial.
The casualty occurred at the point where the south track of the company’s road (there being another running parallel several feet further north) crosses the sidewalk on the west side of Front street in the city of Marquette, and the time was not later than 9 o’clock in the evening of July 12th, 1875. The defendant in error swears it was “about twilight.” The deceased was residing and for some time had been, in the vicinity of this crossing, and was familiar with the place and all its features, and knew that engines and cars were there run each way and over switches from one track to the other just north with much frequency and without regard to regularity in respect to time. He was accustomed to pass three, four or five times a day. He was about forty-nine years old and in health, but used spectacles when at work. A flagman was kept there to warn against the approach of trains and he was required to attend two switches near by but on opposite sides of the track. At night a lantern was used to warn with.
Deceased was a boot and Bhoemaker and was in the service of his son, the defendant in error. He had worked through the day and had started for his home in company with defendant in error. The two having proceeded together as far as Stafford’s drug store (which is about 100 feet from the crossing) on their way, which led across the track, the son turned back to do an errand at his shop which they had just left, and after a short absence returned to rejoin his father and then found him lying on the floor of the drug store and fatally hurt. The accident had occurred during the separation. Deceased was given'to drink and was prone to periodical fits of intoxication, and he had been drinking some at this time. His son, however, swore that he knew perfectly well what he was doing.
It was' “middling dark.” His son having turned back, he went on until he reached a point on the sidewalk in the center of the south track.- So far as appears, there was nothing to hinder his crossing without hurry and in perfect safety, but instead of going on, or stepping off of the track on one side or the other, which he had more than ample time to do, he stopped still and remained in the center of the track. An engine with headlight towards him was standing on the north track and over two hundred and sixty feet distant. Another with its headlight the same way was on the south track, being the track in which he was standing, and about as far off as the other engine. The engine on this south track was coming off the ore dock beyond an intervening bridge, and the flagman had just been with his lantern to the switch between the bridge and the east side of Front street and about one hundred and seventeen feet from where deceased had stopped on the sidewalk, and had thrown the switch over to allow the engine to keep to the track .on which the deceased stood, and was then going back along the south side of the track in the direction of deceased, the engine being about seventy-five feet behind him and not going fast. On account of the effect of the headlights he was not able to tell which engine was coming until it reached the bridge. At that point, however, he could tell, and the point was at least from 140 to 150 feet distant from himself and some 250 ur 260 feet from deceased. After leaving the switch he discovered the deceased standing on the track. “He was doing nothing but standing there, facing the north right up the sidewalk,” and .according to the witness appeared like one “ stupefied.”
The flagman instantly .ran towards the street and shouted to him as “loud as he could” and “loud enough to be heard across the street” and swung his lantern, and on getting near the street he jumped across the track ahead of the engine, and the engine then immediately passed him, and by the time he reached the middle of the street it struck deceased at the place where he had continued to stand on the track. The alarm given by the flagman reached the engineer and he then noticed deceased standing still on the track and two other persons near himj and he proceeded at once to reverse the engine and succeeded in stopping it in about twelve feet. The cab of the engine stopped on the sidewalk. The engine was going slow, — so slow that the flagman was able to cross the track in front of it just before and when it was only a few feet from him, and so slow that it could be and was stopped in going twelve feet.
There is nothing in the record to impugn these facts or derogate from them upon the present question, and they make out a plainer case of contributory negligence than appeared in either of the suits above referred to.
The deceased must have known that engines were there run fugitively and with great frequency and that the track where he stopped and remained was not a safe place to stay in as he stayed in it, and he must have been able to see the approach of the engine and in abundant season to get out of the way without hurry and without difficulty, and his want ot care can neither be overlooked nor so obscured or depreciated as to justify submission of the case to the jury.
His gross neglect of his own safety which the facts establish can be accounted for only by supposing that he was somewhat in liquor and that his mind partly through that was withdrawn from due attention to the things about him and from the exertion of the care and watchfulness which the place and the circumstances demanded of him. But whatever may be the real explanation, the facts presented by this record are repugnant to recovery.
■ The plaintiffs in error were entitled to the instruction which was refused. The other points cease to be material.
The judgment should be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, J.
This is a bill filed by the heirs-at-law of John S. Brown to set aside a conveyance made by him in his last illness to his wife, the defendant. The grounds of .relief set out in the bill axe,.first, undue influence on the part of the wife in procuring the conveyance; and second, that when the conveyance was made the grantor was mentally incompetent to the transaction of any business whatever.
The first ground is not supported by any evidence, and was not urged on the argument. The second has considerable evidence in its support, and the case is one in which the court must necessarily be left by the conflicting evidence in a state of' some perplexity and doubt respecting the real facts. It seems plain that the grantor was mentally incompetent to transact business a very short time after the deed was executed, and there is no very clear assurance that he was not so at the very time.
In such a case, however, the burden of proof is upon those who assail the conveyance, and we are of opinion that the preponderance of evidence on the subject of mental capacity is not with'the complainants. As the question is purely one of fact, no important purpose can be subserved by examining the ease in detail, and we therefore content ourselves with this general statement.
The decree is affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, 0. J.
This bill is- filed to obtain certain securities in the hands of defendant Holbrook, which it is claimed belong to complainants and defendant Jenks under an arrangement whereby they were to become the property of those parties in settlement of their claim for a certain amount of stock in the Weber Furniture Company.
These securities of the nominal value of ten thousand dollars, but of about half that actual value, were formerly the property of one Alvin Wilkins. Some facts are admitted and some disputed. It appears that .in September, 1872, the Weber Furniture Company issued to Wilkins ten thousand dollars of full paid stock, which he subsequently transferred for value to various parties now represented by complainants and Jenny Jenks. To pay for this stock, if it was sold to him, as it was at least in form, he gave his notes — as claimed by defendants, — and to secure them he transferred the securities in question as collateral.
The purchasers of this stock — or their assigns — applied to the officers of the company to have it transferred to them on the books. Mr. Weber, who was general manager and president, and who seems to have had entire control of the company matters, refused to make the transfer. Andrew McClellan, William W. Wheaton, Bobert Hosie, Albert Ives and Peter Desnoyers all agree in their statements that Weber refused the transfer, but agreed that the holders of the Wilkins stock might take the securities in exchange for the stock, they being then in the hands of D. C. Holbrook, the attorney of the company. Upon these assurances made to various persons, and expressly relied upon in the purchase and sale of the stock, the holders all acted, and so did purchasers. Mr. Holbrook is shown to have given them the same understanding. The completion of the transfer was to await the consent of all the owners of the Wilkins stock. None of the gentlemen who called on Mr. Weber, testify that he expressed any willingness to transfer the stock on payment or on any terms. It was worth more than par, and the refusal seems to have been absolute, although he gives a different version. There was no reason, on his theory, why the company, if they meant to recognize the stock, did not sell the securities and determine the amount of their lien if they had one. It is evident they meant to repudiate the stock if they could, and, whatever may have been their legal or equitable liability,, the purchasers were at a disadvantage in being compelled to settle or litigate, and all parties preferred settlement.
'The last interview of Mr. Wheaton was in the fall of 1874, when the arrangement was definitely recognized, and when certain of the stoek was about to be sold by Mr. Ives as assignee of Mr. Hosie, and both Ives and Hosie made similar visits and got the same information, and on the strength of It the stock was purchased by persons bidding at that sale.
The next spring a fire occurred, and the company made an assignment to George Moebs. Proceedings in bankruptcy were commenced against them, and* withdrawn upon a composition — Mr. Bernard Stroh paying twenty per cent, and taking the assets. These securities are not mentioned in any of the transfers or proceedings. Weber’s wife purchased the assets from Stroh, and now claims these securities among them.
Holbrook claims a lien for professional services.
The services on which the lien is asserted were private services for Weber and not for the company, and Weber could not have used these securities or charged them directly or impliedly for his own debt.
So far as Caroline Weber is concerned, she is not in any proper sense a Iona fide purchaser, and stands at best in no better position than the company.
As between the company and Wilkins, such a sale of stock was not in the usual course of corporate business. The law contemplates that stock shall not be issued as fully paid until actually paid for, and that when otherwise 'subscribed it shall be paid for by assessments duly called in. By issuing the stock in the form used, the company asserted that it was paid, and would as to purchasers probably have been estopped from denying it. As to Wilkins, it could not properly hold the collaterals and repudiate the stock at the same time. Whether the statute giving a lien on stock for indebtedness to the corporation can be construed to give it for the purchase price of stock issued as fully paid, and for which notes secured by other collaterals were accepted as payment, may be open to some consideration if the transaction was strictly valid.
But there can be no doubt that any transaction which restored the stock and put the company where it would have been had no sale been made to Wilkins, was unobjectionable, and was practically equivalent in its effect to a rescission. If Wilkins had continued to hold the stock it would have been nothing but a rescission. The object of all the negotiations was to put the parties in statu quo, by giving back for the stock the securities given for its purchase.
Under these circumstances, and treating it as such an agreement, we see no difficulty in sustaining it. As soon as all the purchasers agreed, so that the whole stock was represented, the rescission became practicable and the fund capable of conversion. No formal contract was necessary, as there was nothing in the business within the Statute of Frauds. The parties were induced to act upon the faith of the understanding with full knowledge on the part of the company that it was contemplated and done, and after encouraging such action there could be no withdrawal without fraud.
In our opinion the complainants have made out a complete equity, and should receive the relief prayed.
The decree dismissing the bill should be reversed and a decree made providing that the complainants and Jen ny Jenks within four months file with the clerk of the court below transfers or surrenders of their stock, and that the securities be thereupon transferred to them, or to some trustee in their behalf to be held for their benefit in proportion to their several interests. Complainants to recover costs of both courts.
The other Justices concurred. | [
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] |
Campbell, C. J.
The defendants in error prosecuted summary proceedings to recover possession of land held by Sawyer, which went up to the circuit court for the county of Clinton. The printed record is very meager and leaves out much of the proceedings. The case was tried in the circuit court without a jury, and judgment went for demandants. A finding of facts appears which is criticised by plaintiff in error as imperfect, and the only error alleged is that the facts do not support the judgment.
It is to be remarked that there is nothing in the record to show that complaint was made that the finding ought to have given the specific facts more at length'. In the absence of any error alleged of that kind, and in the absence of any request for more complete findings, we can only determine the sufficiency of this finding by examining it to see whether the judgment is consistent with it. Moore v. Vrooman, 32 Mich., 526.
The present finding shows “that the relation of landlord and tenant existed between the parties; that the defendant was a tenant at will; that said tenancy was terminated by notice to quit, before the commencement of this suit.”
This finding made out a complete case for the demand-ants; and warrants the judgment unless there is some further clause in the finding inconsistent with it.
There are several further findings which, in the absence of a bill of exceptions, are not very intelligible. We do not see in any of them, matter not entirely consistent with the previous recitals. No attempt was made on the argument to show any conflict, but the ground taken was the general insufficiency for want of more full statements of fact. This point we have before referred to. We need not therefore set out these further recitals, as they are not material to this controversy.
We think the judgment warranted by the finding, and it must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
Patterson accused Garlock on oath before a justice with having stolen tobacco from a storey or shop of one Daniels in Watertown, Clinton county> and caused him to be arrested, held and examined before the justice for the alleged offense, and the justice acquitted and discharged him. Garlock then brought this action and alleged that the prosecution against him was false and malicious. He recovered a verdict for $135 and Patterson alleges error.
All the objections relate to rulings in regard to the admission of testimony. No complaint is made of the charge and it does not appear in the record.
There is no force in the objection that the plaintiff should not have been allowed to state that he was arrested. It had been fully shown already without objection that he was, and it does not appear to have been a matter of dispute. The inquiry of the plaintiff was simply formal and introductory. Hence whether it was or was not a competent mode of proof of the fact is not necessary to be decided. The result could not have been influenced by it.
It was proper to inquire concerning the personal relations existing between the parties antecedent to the criminal complaint. It was an inquiry which related directly to the question of malice and might possibly develop a state- of facts bearing on the question of probable cause, and the newspaper article written by Patterson in March, 1874, was competent. - It tended to show that Patterson held hostile feelings and bore upon that part of the issue relating to motive. The admission made to the prosecuting attorney by Patterson that he was not personally cognizant of any of the facts on which he based his charge was relevant. It belonged to the inquiry whether he had probable cause or not for putting the law in motion.
The refusal of the defendant’s offer of proof that Garloek had committed a theft of tobacco from one Davis in 1874 was not error. The sole ground on which the offer is defended is that the proof was competent to affect the amount of damages; and the reason given in its favor is that if Garloek was guilty of that theft, he was entitled to less damage than an honest man. Conceding that the claim for damage made by the action put Garlock’s general character in issue, it cannot be maintained however that it involved inquiry or right of inquiry in regard to - any separate specific charge. 1 Wharton’s Evid., §§ 54, 56 and cases cited.
Garloek was allowed to testify that he did not commit the larceny charged upon him by Patterson, and whether he did or not was submitted to the jury as a separate question. They found that he did not.
Complaint is made of these proceedings. No objection was raised against submitting the point to the jury and no basis exists for charging error against that specific ruling. The evidence of innocence by Garloek is alleged to have been outside of the issue and prejudicial to Patterson. The position is, that the only question was whether Patterson had reason to believe Gar-lock was guilty, and acted in good faith, and that whether he was actually guilty or not as an abstract proposition was immaterial. It is quite true that Gar- lock was bound to prove only in this part of the case that there was no probable cause for the proceeding against him by Patterson, and was not bound to go further and make affirmative proof of his actual innocence.
There is, however, no rule of law which precluded him from making that proof. It was not irrelevant, and although it was not‘ an inquiry which the defendant could insist upon, it was still a matter which the plaintiff was at liberty to show as bearing on the point whether the plaintiff had sufficient reason for making the accusation.
It requires no reasoning to show, that where the question is whether one man has fair ground to charge another with a crime, it cannot be laid down that the abstract fact of his guilt or innocence must be necessarily impertinent and immaterial, and no ground is perceived for holding that the plaintiff was forbidden resort to such evidence in aid of his other proof to support his allegation that the accusation by the defendant was destitute of probable cause. The circumstance that the nature of the action did not require of the plaintiff such proof would not seem to be controlling. The case requires no extended remarks. The general doctrine applicable to this form of action has been recently explained quite fully in Gallaway v. Burr, 32 Mich., 332; and Hamilton and Dunning v. Smith, ante, p. 222.
There is no error, and the judgment is affirmed with costs.
The other Justices concurred.' | [
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Graves, J.
The defendant was convicted of adultery committed in October, 1877, with an unmarried female, and of course to justify conviction' it was necessary to prove that the defendant was a married man at the time the act was committed.
To satisfy this requirement the prosecution sought to prove that on August 6, 1876, a marriage was in fact celebrated between defendant and one Lydia Smith at Adrian in this State by one Boswell Kimball, a minister of the gospel; and the chief evidence adduced consisted of a certified transcript from the records of the county clerk of a paper purporting to have been made and recorded as a marriage certificate given by Bobert Kim-ball, who described himself as “minister.”
This paper set forth that the parties were joined in matrimony on the 6th day of August, 1876, and that the said Lydia Smith at that time was within the age of full legal consent, that is to say, sixteen years.
The court received this as evidence to show a valid marriage and allowed the jury to consider it as proof that the parties were husband and wife when the alleged offense was committed over a year later. In this the court erred.
Miss Smith being under the age of legal consent, as the proof given by the prosecution expressly showed, it could not make out that a valid marriage was subsisting more than a year later.
True, there was evidence tending to show that these persons cohabited after the ceremony, but it also tended to show they^ did so but for a short time only. And even this piece of evidence was not submitted as showing or going to show the fact of a legal marriage; but the jury were advised that the celebration described in the paper was of itself sufficient to make out a legal marriage, if Kimball was a minister qualified to officiate. No evidence was given that the separation which seems to have occurred soon was not by Miss Smith’s withdrawal before reaching sixteen and before the alleged offense, and it was competent for her to separate before reaching that age and refuse to cohabit (see People v. Slack, 15 Mich., 193), and if such was the case, then there was no existing marriage and the act charged was not adultery.
The conviction must be set aside and the court is advised to grant a new trial.
The other Justices concurred. | [
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