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Graves, J.
This is a demurrer to an application by relator for a mandamus to require respondent to vacate an order of court of the 27th of May last, ordering relator to give security in addition to such as had been previously given and accepted, under the sanction of the clerk in certain proceedings taken against the steamer “Excelsior,” under the water craft law, being chapter 210 of the Compiled Laws.
April 25th, 1878, “The People’s Ice Company,” a domestic corporation, filed complaint with the clerk against the steamer and set up a lien of $25,000 for damages charged to have been caused by the misconduct of the master of the vessel, and the clerk immediately issued to the sheriff the warrant prescribed, by section four of the act, to seize and hold her, and on the same day the sheriff made the seizure as ordered.
On the next day, being April 26, the court on relator’s application under section seventeen appointed appraisers, and they shortly after made and reported their appraisal of the vessel at $22,500.
■ May 2d, the clerk, upon due notice and in accordance with the statute, was applied to for a writ of restitution; and on the next day, being May 3d, the parties by their attorneys together with the person offered by relator as surety, appeared before the clerk to consummate lawful security to obtain the release of the steamer in the manner prescribed by the statute, under which she was seized. The surety was examined on behalf of the complaining company, touching his property and liabilities, and on its request the examination was reduced to writing, subscribed by the surety and filed with the clerk.
On the day following the clerk approved of the surety and accepted the bond which relator tendered, and issued a writ of restitution to the sheriff, and thereupon the steamer was restored.
May 9, 1878, the appearance of relator was regularly entered, and on the' 15th she filed her answer to the complaint.
May 27th, the company moved the court on affidavits to direct the giving of additional security, and to order the steamer into the sheriff’s custody by special writ until such additional security should be given.
The motion was not based in any extent whatever upon the ground that the security under the bond had become imperiled subsequent to the time it was made, or upon the ground of any change in the responsibility of the surety, and no such ground was shown. The proceeding was based solely upon the claim that an affidavit made to support it, disproved statements of the surety made before the clerk, and on which that officer acted, and established their untruth. i
There was no pretense that the clerk had failed to act fairly and justly, or that his opinion had undergone any change. Indeed his affidavit was produced and read, from which it appeared among other things, that from inquiries and his own knowledge, he remained of opinion that the surety’s property was more valuable than the latter had represented. The motion was granted and the court made an order that relator give additional security to the complaining company to be approved by the judge; and further, that a special writ issue to the sheriff to take the steamer and all her equipments and hold the same until the additional security should be given, and this is the order which relator asks to have revoked.
The relief prayed for is claimed on two grounds.
First. That on a proper construction of the statute the court had no power to make this order.
Second. That chapter 210 is unconstitutional. If the first position is well taken an examination of the second will be needless, and it is not desirable to discuss the validity of the act without strong reason.
The point to be first considered is therefore, whether after the clerk had brought the taking of security and release of the vessel to completion pursuant to the statute, the court possessed the power to intervene as it did, and upon the exclusive ground that an affiant for the motion contradicted the sworn facts on which the clerk made his determination to proceed to oust relator of the possession which that determination and the security sanctioned by it, had given her, and moreover make her right to possession in future depend upon her giving such additional security as should meet the approval of the judge.
There is no claim that the statute gives to the judge any cognizance of the proceeding in the first place for fixing and accepting the original security for the release of the vessel, and there is no room for such a claim.
The remedy in question is one purely statutory, and it is ufiassisted by those presumptions which aid common law jurisdictions. The legislature having undertaken to prescribe the remedy in all its parts by express enactment, is supposed to have designed that the main regulations should be strictly observed and not exceeded upon any judicial views of utility or convenience, and that the duties carefully assigned to one functionary alone, should be discharged by him and not by another.
The duty to fix and accept originally the security for the discharge of the vessel from custody is specifically delegated to the clerk alone. But the very next section confers power on the judge to require additional security in case that already possessed becomes imperiled. This provision is as specific as the other. In the first the power is conferred on the clerk; in the second on the judge. Why so unless it was intended that the duties should be separate and distinct?
The implication is plain that the law designs that the clerk and not the judge shall have cognizance of the first proceeding. The distinction marked so carefully compels the conclusion.
The jurisdiction the judge assumed in hearing the motion and making the order complained of, was therefore appellate and not original, and the proceeding must be defended on that ground if at all.
The power as marked out in the sixteenth section to require additional security, is an independent power and is in substance original and not appellate. It looks to something else than a rehearing or re-examination of a previous determination, and supposes that some change has occurred subsequent to the clerk’s decision which warrants a new proceeding by motion and on new facts, and not a transfer of a pre-existing inquiry from one officer to another.
Considering the ground of the judge’s intervention and the state of facts and mode of proceeding, it is apparent that the jurisdiction assumed was not authorized by the sixteenth section.
As previously stated, the judge did not proceed upon the ground that a change had taken place in regard to the sufficiency of thé security, but solely upon a contradiction of the evidence on which the clerk had decided in the previous distinct proceeding.
Now, there is no provision which in terms- or by implication authorizes the judge to review the clerk’s decision on the facts, at all events when the sole complaint is that the evidence on which he acted is open to contradiction.
No course is marked out for any such action. The statute contains no provision for transferring to the judicial cognizance of the judge as an appellate magistrate, the same case with all its facts which the clerk had before him, and it must be presumed that some provision on the subject' would have been -made if the legislature had intended to confer the jurisdiction., The requisite regulations cannot be interpolated by construction. The fair conclusion is that the clerk’s decision on the evidence laid before him was. not subject to be set aside by the judge on motion where the only objection was that such evidence was disputed.
A doctrine laid down and supported by high authority has a strong bearing upon the nature'of the power confided to the clerk by this statute, and deserves notice.
In Vanderheyden v. Young, 11 Johns., 150, 158, Mr. Justice Spencer said “that whenever the law vests any person with a power to do an act, and constitutes him a judge of the evidence on which the act may be done, and, at the same time, contemplates that the act is to be carried into effect, through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is, quoad hoc, a judge,” and this was approved by the Supreme Court of the United States in Martin v. Mott, 12 Wheat., 19, 32.
In Allen v. Blunt, 3 Story, 742, Mr. Justice Story declared that it might “ be laid down as a general rule, that, when a particular authority is confided to a public officer to be exercised by him in his discretion upon an examination of facts, of which he is made the appropriate judge, his decision upon those facts is, in the absence of any controlling provisions, absolutely conclusive as to the existence of those facts ” and this statement received the unanimous approbation of the Supreme Court in the case of The United States v. Wright, 11 Wall., 648. The principle has been often recognized and applied. Burgess v. Gray, 16 How., 48, 64; Town of Venice v. Murdock, 92 U. S., 494; Commissioners of Knox County v. Nichols, 14 Ohio St., 260. See also Moore v. Olin, 6 Mich., 328; Johnson v. Maxon, 23 Mich., 129. Citations illustrating the application of the rule propounded might be greatly multiplied, but it is not needful to mention others.
The principle enunciated appears to me to maintain the view taken of this case, and to place in a clear light the character of the function required of the clerk.
Without extending the discussion further it is enough to say that the order complained of was unauthorized, and that relator is entitled to the relief prayed.
It becomes unnecessary to refer to the other question.
The other Justices concurred. | [
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Cooley, J.
Swift, one of the plaintiffs in error, sued out in justice’s court an attachment against the goods and chattels of defendant in error, by virtue of which his stock in trade as a druggist was seized, and a keeper put in possession. This possession continued for a week, the shop being kept open in the meantime, and all calls responded to. When the attachment was sued out, it became necessary for Swift to give the statutory bond, the condition of which was that he would pay the defendant all damages and costs he might sustain by reason of the issuing of the attachment if the plaintiff should fail to recover judgment in the suit. Plessner, .after his stock was attached, employed counsel to move for a dissolution, of the attachment, and this was done successfully, and the attachment suit failed. His counsel charged him twenty-five dollars for services in obtaining a dissolution of the attachment.
This suit is brought upon the attachment bond, and the questions raised concern the measure of damages. It is conceded that the officer took from the shop seventeen dollars with which Swift must be charged. The court below directed the jury, to allow a reasonable attorney fee on the application to dissolve the attachment, and also instructed the jury as follows:
“You should also take into consideration whether there was any loss or injury to the business during the period defendants were in possession under the writ of attachment, and if you shall find it was an injury, you should allow such sum as shall be fair and right and just — not too large nor too little; and for that purpose you w.ill look at all the testimony that has been presented, and arrive at it in such a way that you shall think it just.”
There was evidence from which the -inference was admissible that Plessne'r’s sales were diminished during the possession of the keeper, and that an actual loss resulted to him in consequence. The defendants requested the court to submit to the jury the following questions:
1. What amount of profits, if any, did the plaintiff lose during the time the keeper was in possession?
2. What would the profits of the plaintiff’s business have been during the time the keeper was in charge, had he not been disturbed in possession?
8. What were the profits received and turned over to the plaintiff during the time the keeper was in charge ?
The court refused to submit these questions, but left the case to the jury for a general verdict, and they awarded the plaintiff the sum of $102. As it is reasonable to infer that the counsel fee of $25 was allowed, the loss to the business would seem to have been estimated 'at sixty dollars.
I. There was nothing unreasonable in the allowance of the counsel fee. It was a necessary expense incurred because of the suing out of the attachment and to get, rid of the lien; and therefore constituted a part of the damages suffered. The bond contemplates a contest over the right to maintain the suit; and it must be understood as embracing the expenditures which the suit renders necessary.
II. There was no error in declining to submit to the jury the specific questions.' Neither of them was at all conclusive, and whatever may have been the answers to them, they would not have controlled a general verdict. Crane v. Reeder, 25 Mich., 308; Harbaugh v. Cicott, 33 Mich., 241. The loss to the business might have been considerable even though the temporary loss of profits was little or nothing.
III. The instruction to the jury seems to us correct. It allowed no speculative damages. The case was one in which it was impossible to estimate the damages as they might be computed on a note or on a sale of produce ; but that is no reason why damages should not be allowed. Burrell v. New York etc. Salt Co., 14 Mich., 34.
Such elements of certainty as the case admits of are to be submitted to the jury, and unless they abuse their discretion, their verdict is not to be set aside merely because exactly how it was made up cannot be shown. In this case there is no room for a suggestion that the jury awarded excessive damages.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Per Curiam.
An order to show cause will not be granted to inquire into the imposition by a circuit judge of costs as terms for opening a default. Such conditions are discretionary. • | [
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Kavanagh, J.
In this case we are asked to determine the proper application of the statute of limitations in a situation wherein after a judgment was obtained in favor of a minor in a suit instituted by bis next friend, an action by the minor to renew such judgment was made more than 10 years after the rendition of the judgment, but less than 10 years after the minor attained his majority.
The stipulated facts are in substance as follows:
Plaintiff, who was then 17 years of age, instituted action through his next friend against defendant for an intentional tort in the Wayne county circuit court. On July 9,1948, judgment was rendered for plaintiff in the amount of $2,500 plus $22 costs. On April 15, 1950, defendant filed a motion to set aside the judgment. An order denying the motion was signed April 26, 1950, providing that upon filing a remittitur of all sums in excess of $1,200 the verbal order of the court made on April 21, 1950, setting aside the judgment unless the remittitur was filed, would be vacated. A remittitur of all sums in excess of $1,200 signed by plaintiff’s next friend was attached to the order. Court records indicated no garnishments, attachments, executions, or other process were issued to enforce the judgment.
On February 9, 1951, plaintiff became 21 years of age.
Upon discovering defendant was a resident of Macomb county, plaintiff instituted this action to renew the judgment on April 30, 1959. Defendant filed a motion to dismiss charging the action was barred by the statute of limitations in that 10 years had elapsed from the date of rendition of the judgment. On June 15, 1959, the court denied defendant’s motion to dismiss, but no written order was prepared. Defendant filed for a rehearing on his motion to dismiss, which plaintiff answered. On July 13, 1959, the court reversed its earlier holding and ruled the motion to dismiss be granted. Such order was signed and filed on July 27, 1959. Plaintiff’s motion for rehearing was denied on August 10, 1959. Plaintiff now appeals to this Court.
The pertinent portions of the statute relating to the limitation of personal actions applicable to this case are as follows:
“That actions founded upon judgments * * * may be brought at any time within 10 years from the time of the rendition of such judgment.”
and
“If any person entitled to bring any of the actions mentioned in this chapter shall, at the time when the cause of action accrues, be within the age of 21 years, * * * such person may bring the action within the times in this chapter respectively limited, after the disability shall be removed.”
Unless we should hold the appointment of a guardian or next friend for the plaintiff-minor during his period of disability or the bringing of an action by such next friend culminating in the judgment resulted in the removal of the plaintiff’s statutory disability, it is clear plaintiff is not barred by the limitation statute as he would have until February, 1961, to bring action to renew the judgment.
From a reading of the many cases cited in annotations found in American Law Reports which have carefully considered the question whether the appointment of a guardian will set the statute of limitations in motion against the minor, it is obvious the rule is that such appointment will have no bearing on the existence of the minor’s disability. Especially so, is this the case where, as under the instant facts, the right of action was in the infant. Many cases decided subsequent to the authoring of the above annotations are in agreement that no waiver of the disability occurs upon such appoint ment. See: Aronson v. Bank of America N. T. & S. A., 42 Cal App2d 710 (109 P2d 1001); In re Estate of Gress, 13 Ohio Supp 70 (28 Ohio Op No 8); Zini v. First National Bank in Little Rock, 228 Ark 325 (307 SW2d 874).
A Michigan Supreme Court decision cited in support of the above mentioned rule is Keating v. Michigan Central R. Co., 94 Mich 219, wherein the facts were as follows:
■ In 1876 plaintiff, then 7 years old, was injured. The following year his father was appointed as next friend in a suit against the defendant for plaintiff’s injuries. . In 1878 the suit was brought to trial, with plaintiff agreeing to a nonsuit after his proofs were put in, however, with leave to set the nonsuit aside. In 1882 an order was entered discontinuing the suit. In 1883 action was again brought by plaintiff, by his next friend, for the same cause of action. This action was discontinued in 1890. Subsequently, plaintiff brought suit in his own name within 1 year after he reached majority. Defendant pleaded the statute of limitations. Rejecting such defense, the Court cited the statutory provision providing a disability for those under 21 years of age and commented upon its applicability in the following language (pp 220, 221) :
“It is contended by defendant’s counsel that the term ‘disability,’ used in this statute, means the disability to bring suit, and that, when the right to bring suit begins, the disability is removed; that infancy is not a disability, but an infant may be disabled from bringing suit; and that, when a guardian is appointed, the disability is removed, as then the infant is in a position to bring and maintain his suit, and consequently then the statute begins to run. It is further contended that, if this position is not well taken, when the guardian actually brings suit the statute begins to run from the date the suit is commenced.
“We cannot agree with this contention. It is evident that the disability mentioned in the statute can have no other meaning than the infancy of the party, and it is not removed until the full period of his nonage shall elapse. The rule is well stated in Wood on Limitations, § 238, as follows:
“ ‘Persons who have not attained the age of majority are infants, and, in those States where infancy is within the saving clause of the statute, the statute does not begin to run against him or her, even though he or she has a guardian who might sue the claim in question, nor even though other persons are jointly interested in the claim who are of full age, until he or she attains the age of majority. The fact that a guardian or the infant himself brings a suit before the disability is removed does not operate as a waiver of the saving clause in favor of the disability.’
“This rule is supported by * * * (citing cases). Under these authorities it is well settled that the disability of the plaintiff is not removed until he attains his majority.
“The fact that suit was actually commenced in the name of the infant, by his next friend, did not set the statute in motion, so that any lapse of time would bar it short of the time fixed by the statute, which is 6 years after his majority.”
Another case holding in conformity with the rule that commencement of an action by an infant by his guardian ad litem does not terminate the infant’s disability within a statute excluding such disability from the time to commence action is Williams v. Board of Education of City of New York, 182 Misc 619 (45 NYS2d 385).
The case of Williams v. Merritt, 109 Ga 213 (34 SE 312), contained the following set of facts: In 1898 plaintiffs, one then 24 years of age and the other yet a minor, brought action on an 1878 judg ment which had become dormant under the Georgia statute of limitations in 1886. Plaintiffs contended the statute did not run against them until they reached their majority based upon a statutory provision which stated that “infants, * * * who are such when the cause of action accrues, shall be entitled to the same time, after the disability is removed, to bring an action, as is provided in this code for other persons.” In reversing the lower court and holding for plaintiffs, the Georgia supreme court ruled that since the cause of action-accrued and judgment obtained during plaintiffs’ minority, and even though the judgment had become dormant because of the limitation statute during such disability, plaintiffs were, nevertheless, entitled to the same time, after removal of their disability, in which to bring an action upon the judgment, as is prescribed for persons laboring nnder no disability.
Prom the above mentioned authorities, it would appear plaintiff is not barred by the statute on the limitations of personal actions, since the 10-year statutory limitation to renew judgments only became binding upon him at the time he attained his majority.
The order dismissing the declaration is reversed and set aside, and the case is remanded to the Macomb county circuit court for trial on the merits. Plaintiff may have costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred.
CLS 1956, § 609.13, subd (1) (Stat Ann 1959 Cum Supp § 27.605, subd [1]).
CL 1948, § 609.15 (Stat Ann § 27.607).
6 ALR 1689, 128 ALR 1379.
Georgia Civil Code (1895), § 3779. (Currently, see Georgia Code Ann, § 3-801.—Reporter.) | [
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Carr, J.
This case was submitted in the trial court on a stipulation of facts. It appears therefrom that the defendant is a nonprofit hospital service corporation and is the operating agency for the writing of insurance contracts providing hospitalization benefits in accordance with the Michigan Blue Cross plan. It issued to plaintiff a hospital care certificate pursuant to such plan. The case involves the interpretation of certain provisions of said certificate.
Plaintiff was hospitalized in LaG-range, Illinois, for the period beginning August 12th and ending August 27, 1956, and likewise from October 9th to October 24th of the same year, an aggregate of 30 days. Defendant paid benefits in connection with such hospitalization pursuant to the terms of the certificate issued to plaintiff. Within the ensuing 6-month period plaintiff was a patient in a hospital located at Clearwater, Florida, for the period from February 27, 1957, to and including March 11th following. For such period defendant did not pay benefits and presumably no request therefor was made. In less than 6 months following discharge from the Clearwater hospital plaintiff was again hospitalized at LaGrange, Illinois, from August 13, 1957, to September 8th thereafter. Defendant denied liability for benefits in connection with the last hospitalization on the ground that under the terms of the hospital care certificate involved plaintiff was not entitled thereto, less than 6 months having elapsed from the time of the last preceding hospitalization. It is conceded that if plaintiff is entitled to such benefits, the amount thereof is the sum of $882.10.
The provisions of the certificate issued to plaintiff which are pertinent to the question raised are contained in paragraph 10 (D), which reads as follows:
“Each member is entitled to hospital service for a maximum benefit period of 30 days under this and prior contracts of the service association, for each period of hospital confinement, or for successive periods of hospital confinement separated by less than 6 months. Such member will again be entitled to a maximum benefit period of 30 days only when there has been a lapse of at least 6 months between the date of last discharge from a hospital and the date of next admission.”
The parties are not in accord as to the interpretation of the second sentence of the paragraph quoted. It was plaintiff’s position in the trial court, and likewise is on this appeal, that the reference to the date of last discharge from a hospital should be con strued as referring to a period of hospitalization for which benefits were paid under the hospitalization care certificate. Defendant insists that the 6-month period contemplated following discharge from a hospital must be interpreted as its reads, and that treatment in any hospital whether or not benefits are paid therefor bars the granting of subsequent benefits for hospitalization during the period mentioned.
The trial judge, hearing the case without a jury, after quoting paragraph 10 (D) of the certificate summarized his conclusions as to the interpretation thereof in a written opinion, as follows:
“Without applying this section to any given set of facts it appears to the court that there is no ambiguity in the language employed and no room for more than 1 interpretation. The language of this section provides for a maximum benefit period of 30 days which period may be for 30 successive days or successive periods of hospitalization when separated by less than 6 months but not to exceed 30 days. And the subscribing member will again be entitled to 30 days of hospitalization when she has not been hospitalized for at least 6 months. * * *
“Plaintiff says that the contract provides for 30 days of benefits every 6 months if no benefits have been paid in the intervening 6 months while defendant claims that the contract provides for no benefits after 30 days of benefits until at least 6 months, free from hospitalization, has lapsed. The court can find no ambiguity in the language used in section 10 (D). While it may lead to unhappy circumstances when applied to the needs of the policy holder nevertheless the policy itself clearly sets forth its benefit limitations and no one should be misled.”
Judgment was entered in accordance with said opinion, and plaintiff has appealed.
The paragraph of the certificate in question here, above quoted, was obviously intended to define the rights of the person to whom it was issued under the circumstances therein set forth. In specific terms it provides that when benefits have been paid pursuant to the first sentence of the paragraph the insured may become entitled to benefits because of subsequent hospitalization provided 6 months have elapsed from the date of discharge from a hospital. Had it been intended that the reference to the discharge meant that the prior hospitalization entitled the insured to benefits under the certificate, it may be assumed that the intent would have been indicated in appropriate language.
Counsel for appellant argues in his brief that the concluding portion of the second sentence of the paragraph should be interpreted as reading “between the date of last discharge from a hospital for which a benefit was paid and the date of next admission.” Obviously the interpretation urged involves reading into the contract a provision not contained therein. This the Court may not do. Plaintiff’s right of recovery rests on the contract as written. Under the guise of interpretation it may not be re-' formed or modified. Lombardi v. Metropolitan Life Ins. Co., 271 Mich 265, 270.
On behalf of appellant attention is called to the principle of construction that an ambiguous contract must be construed against the party preparing it. Unquestionably such rule applies to insurance policies and contracts of like nature. However, ambiguity is essential to its application. In the absence of such a situation interpretation is not required, and courts are bound by the specific language set forth in the agreement. Thus in Indemnity Insurance Company of North America v. Geist, 270 Mich 510, 513, it was said:
“It is elementary that contracts, including insurance policies, which are unambiguous are not open to construction, and must be enforced as written. Harrington v. Inter-State Business Men’s Accident Ass’n, 210 Mich 327.”
Said statement of the law was quoted in Lehr v. Professional Underwriters, 296 Mich 693. The Court there recognized the general rule with reference to ambiguous contracts but determined that it was not applicable to the instrument involved in the case. In so concluding, it was said in part (p 696) :
“But where no ambiguity exists, no construction, in the usual sense of the word, is called for. Mondou v. Lincoln Mutual Casualty Co., 283 Mich 353. Appellant fails to allege wherein the ambiguity arises, and we hold that none exists. An insurance company may limit the risks it assumes and fix its premiums accordingly. Upon the settled record it is conceded that the plaintiff, Dr. Lehr, had had these policies for a number of years, had read them and knew of the provisions contained therein, and that they were not misrepresented to him.”
Such statement is applicable in the present controversy. No claim is made that the certificate was misrepresented to appellant in any way, and it may be assumed that she was familiar with its provisions. Her continuance under the hospitalization benefits plan thereby contemplated was wholly voluntary on her part. In accord with the decisions above cited are Wozniak v. John Hancock Mutual Life Ins. Co., 288 Mich 612, and VanZanten v. National Casualty Company, 333 Mich 28.
The trial judge correctly determined the issue involved in the cause, and the judgment entered is affirmed, with costs to appellee.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Carr, J.
The facts and issues in this case were stipulated in circuit court and the cause submitted to the trial judge for determination. During the summer of 1958 and for some time prior thereto plaintiff was engaged in the business of hauling sand and gravel as a common carrier under a certificate of authority issued to it by the Michigan publie service commission. Under date of May 10, 1957, the commission by order specified minimum rates to be charged by sand and gravel motor carriers. On June 14th following plaintiff caused to be published its tariff consistent with the minimum rates as prescribed. Such rates remained in force and effect during the period involved in this controversy.
At the time in question defendant was engaged in the construction of concrete pavement and work of similar character requiring the use of sand and gravel. In the conduct of its business it purchased materials from a supplier and procured the same to be hauled by truck to its yards. Prior to July 7, 1958, defendant had engaged plaintiff for the rendition of the hauling service, paying therefor at the rate set forth in the published tariff. On the date mentioned defendant advised plaintiff that it was in position to obtain a delivered price for sand and gravel which was lower than the combined prices being paid by it to its supplier and the tariff rate that had been paid to plaintiff. The result was an agreement between the parties whereby plaintiff contracted to haul sand and gravel, as a common carrier, for defendant at the rate of 46 cents per 1,000 pounds for delivery in Royal Oak township, Oakland county. Such rate was below the published rate for such service and in violation of the order of the public service commission.
During the period from July 7, 1958, to October 20th following plaintiff hauled substantial quantities of sand and gravel for defendant at the contracted rate. Such charges were paid in full. On complaints made to it the public service commission held a hearing with reference to the rates specified in its order of May 10, 1957, and issued warnings against violations of said order. Thereafter by agreement between plaintiff and defendant further hauling was done at the minimum rate as fixed by the commission’s order and plaintiff’s published tariff. Plaintiff then demanded payment for the difference be tween the rate fixed by the agreement of the parties and the prescribed minimum tariff: rate. Defendant refused payment, claiming that it was not further obligated in view of the agreement of July 7, 1958. It is conceded that the difference between the tariff rate and the contract rate for the period when the latter was observed amounted to $15,986.70. It was stipulated in circuit court that if plaintiff prevailed in the action judgment should be entered for that amount.
In the submission to the trial court of the issue involved defendant contended that the contract between the parties for the transportation service at a rate lower than that fixed by the order of the public service commission and by plaintiff’s tariff was illegal, that the contract was incapable of enforcement by either party, and that for such reason plaintiff was not entitled to recover. Reliance was placed on the general rule that where parties have entered into an illegal agreement, and are in pari delicto, the law will not aid either but -will leave the parties in the position in which they have placed themselves. The trial judge concluded that the legal principle invoked was applicable and rendered judgment in favor of the defendant, without costs.
Plaintiff has appealed, contending in substance that the trial judge was in error in basing his decision on the principle referred to with reference to the granting of relief in any instance where parties have deliberately made an agreement in violation of the declared public policy of the State. The principle of law underlying the rule of nonintervention by the courts is not questioned, it being the position of plaintiff that under a situation of the character involved in the instant case such rule yields to the overriding proposition that the carrying out of the mandate imposed by statute requires that, irrespective of contractual undertakings, rates of carriers shall be -uniform, that discriminations in the form of rebates or otherwise are forbidden, and that the carrier not only has the right but also the duty to collect charges in accordance with the lawful rates prescribed.
In the motor carrier act of the State the legislature has provided for the regulation of motor carriers operating on the public highways, and has vested the public service commission with specific authority with reference to rates and charges for services by such carriers. Sections 6, 7, and 8 of article 2 of said act (CL 1948, §§476.6-476.8 [Stat Ann §§ 22.539, 22.540, Stat Ann 1957 Cum Supp § 22.541]) are pertinent to this case and read as follows:
“Sec. 6. Publication and filing of rates. All common motor carriers subject to the provisions of this act, shall before engaging in business, print and file with the commission and keep open to public inspection in each of its depots and offices, schedules showing all rates, fares and charges for transportation of passengers and property between different points on its route, and also between points on its own route and on the route of any other common motor carrier when a through route and joint rate have been established. If no joint rate over the through route has been established the several carriers shall file, print and keep open for public inspection as aforesaid the separately established rates, fares and charges applied to the through transportation, and shall likewise print, file and keep open to the public inspection all other charges, or privileges or facilities, rules or regulations which in anywise change, affect or determine any part of the rates, fares, charges or the value of the service, and such other information as may be required by the commission in its rules and regulations. No common motor carrier shall receive or accept any person or property for trans portation upon the highways until the requirements of this section have been complied with: Provided, Nothing in this section or any other section of this act contained shall be construed or held to require the printing, publication or filing by any common motor carrier of passengers, of any tariffs, rates, fares or charges covering, controlling or affecting the charter or special coach business of such carrier.
“Sec. 7. Reasonable rates without unjust discrimination. All rates, fares and charges made by any common motor carrier shall be just and reasonable, and shall not be unjustly discriminatory, prejudicial nor preferential. No such common motor carrier shall charge, demand, collect or receive a greater or less or different remuneration for the transportation of passengers or property, or for any service in connection therewith, than the rates, fares and charges which have been legally established and filed with the commission; nor shall any such common motor carrier refund or remit in any manner or by any device any portion of the rates, fares and charges required to be collected by the tariffs on file with the Michigan public utilities commission or ordered by the commission.
“Sec. 8. Rebates unlawful. Any person, whether carrier, shipper or consignee, or any officer, employee, agent or representative thereof, who shall lmowingly offer, grant or give, or solicit, accept or receive any rebate, concession or discrimination in violation of any provision of this act, or who, by means of any false statement or representation, or by the use of any false or fictitious bill, bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit, deposition, lease, or bill of sale, or by any other means or device, shall knowingly and wilfully assist, suffer or permit any person or persons, natural or artificial to obtain transportation of passengers or property subject to this article 2 for less than the applicable rate, fare or charge, or who shall knowingly and wilfully, by any such means or other wise, fraudulently seek to evade or defeat regulations as in this act provided for common motor carriers, shall be deemed guilty of a misdemeanor, and, upon conviction shall be punished by a fine of not more than $100.00, or imprisonment for not more than 90 days, or both.”
It is apparent from the sections quoted that the legislature had in mind the protection of the public interest by requiring the publication of rates to be charged by each common motor carrier, to prohibit discriminatory charges, to forbid the observance of rates other than as fixed pursuant to the statute, and to provide a penalty for the granting of rebates in any form and for discrimination forbidden by the act. In the instant case it is obvious, and is in fact conceded, that the agreement between the parties whereby defendant was to receive transportation service at a lower rate than as prescribed by order of the commission, and plaintiff’s tariff filed pursuant thereto, was made in violation of the motor carrier act. The parties had the right to contract for the rendition of the hauling service desired by defendant but in doing so they were precluded from fixing rates at variance with those prescribed pursuant to the statute. It is this part of the undertaking as made that is tainted with illegality.
The observance of the mandate of the statute requires that the plaintiff motor carrier charge and collect rates in accordance with the order of the public service commission and the published tariff. To leave the parties where they have placed themselves by denying the right to so recover means as a practical proposition that defendant is relieved of the liability to pay the transportation charges in accordance with the law of the State. It would result in discrimination that for the protection of the public generally is forbidden by law. It would be tantamount to denying recovery of a rebate illegally paid.
It does not appear that this Court has heretofore passed on the precise question here involved. Counsel for plaintiff has, however, cited prior decisions, including Grand Rapids & Indiana R. Co. v. Cobbs & Mitchell, 203 Mich 133, and Federal Gravel Co. v. Detroit & Mackinac R. Co., 248 Mich 49, as bearing on the underlying principle at issue. In other States and also in the Federal courts the question has arisen under statutory provisions analogous to those in the Michigan motor carrier act and under the interstate commerce act. Such decisions recognize the practical necessity of permitting a recovery of the rates fixed by law in order to obviate forbidden practices. In Papetti v. Alicandro, 317 Mass 382 (58 NE2d 155), the State statute involved forbade charging or collecting by motor carriers a different compensation for transportation service than as' specified in the tariffs in effect at the time. Rebates were also expressly forbidden. There the plaintiff sought to recover the difference between the minimum rates fixed pursuant to the statute and the sum that he had been paid for the transportation of gasoline and fuel oil for the defendant. The trial court directed a verdict in favor of the defendant on the theory that the plaintiff was not entitled to recover under the averments of his declaration. In reversing the holding, the supreme court of the State said in part:
“Unless the plaintiff is prevented by some rule of law, he is entitled to maintain this action. We think that the plaintiff not only is not so barred, but that it is both his right and duty to recover the rebates. The provisions of G. L. (Ter. Ed.) c. 159B, as inserted by St. 1934, c. 264, and as revised by St. 1938, c. 483, bear resemblance respectively to the provisions of the interstate commerce act, USC (1940 ed), title 49, as to railroads, §§ 6, 2, 10, and as to common carriers by motor vehicle, §§ 316-327, the latter being first enacted in 1935 (49 Stats 558-567). "With respect to the former Federal enactment numerous decisions of the supreme court of the United States and of this court are authorities for the plaintiff. ‘Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay.’ Kansas City Southern R. Co. v. Carl, 227 US 639, 653 (33 S Ct 391, 57 L ed 683). The ‘effect of filing schedules of rates with the interstate commerce commission was to make the published rates binding upon shipper and carrier alike, thus making effectual the purpose of the act to have but one rate, open to all alike and from which there could be no departure.’ Boston & Maine Railroad v. Hooker, 233 US 97, 112 (34 S Ct 526, 58 L ed 868, LRA 1915B, 450). ‘The transaction between the parties amounted to an assumption by the consignee to pay the only lawful rate it had the right to pay or the carrier the right to charge. The consignee could not escape the liability imposed by law through any contract with the carrier.’” (Citing cases.)
Of like import is Heuer Truck Lines v. Brownlee, 239 Iowa 267 (31 NW2d 375). There the plaintiff, a common carrier by motor trucks, transported certain merchandise, ■ pursuant to agreement, at a lesser rate than as fixed by its schedule of rates filed with the Iowa commerce commission. The trial court sustained the right of recovery on the basis that the plaintiff was required by law to make charges in accordance with the schedule filed, that any agreement to transport for a lesser charge was unlawful and void, that defendants had knowledge of the schedule of rates, and that any agreement between the parties for the rendition of service at a lower rate would constitute a preference to the defendants and an unlawful discrimination' against others. The supreme court of the State affirmed the conclusions of the trial court, holding specifically that the doctrine of estoppel could not he invoked to bar recovery. In this connection it was said (p 274) :
“If there was an agreement between defendants and plaintiff, in order that the plaintiff be estopped, such agreement must necessarily be valid and enforceable. There was no such enforceable contract here, since it was contrary to the rates adopted and contrary to the rule that there should be no discrimination in favor of one, or preferential treatment. We agree with the court that there was no estoppel.” (Citing cases.)
In view of the claim of the defendant in the case now before us the decision of the supreme court of Minnesota in Johnston v. L. B. Hartz Stores, Inc., 202 Minn 132 (277 NW 414), is of interest. There the plaintiff brought action to recover the difference between what it had been paid as a carrier for transporting goods for the defendant and the minimum rate for such transportation as fixed by the railroad and warehouse commission of the State. There, as in the case at bar, the parties had undertaken to enter into a contract for the transportation of goods at a rate less than as prescribed. It was conceded that the contract was illegal, and the defendant contended that because of such illegality the parties were in pari delicto and that the courts should “leave the parties where they find themselves.” After discussing the provisions of the State statute with reference to transportation rates, it was said (pp 134-136):
“Will it effectuate the purposes of the act to treat the contract as an ordinary illegal contract, where the courts normally leave the parties where they find themselves, or is the public policy behind the enforcement of the act paramount to the public policy usually applied to ordinary illegal contracts? Is it necessary that in order to effectuate the purposes of the act we must permit a recovery of the undercharge? What was the legislative intent?
“The subject matter of the agreement insofar as it relates to the transportation of property is a perfectly legitimate subject of contract. It is only the agreement to carry at a lesser rate than the minimum prescribed by the commission that constitutes the illegal feature. There is no specific provision in c 170 that a carrier may recover such an undercharge, but we are asked to imply that right from the language of section 8 and the general purpose of the act as announced by the legislature.
“Under the interstate commerce act, common carriers are permitted to recover undercharges, although the language of that act is not quite so strong as is section 8 of c 170, and although there is no specific provision for the recovery of undercharges. See 49 USCA, § 6, par (7). It is quite true that the purposes underlying the regulation of common carriers are primarily the establishment of reasonable rates and the prevention of discrimination, but in order to effectuate such purposes it becomes necessary to render contracts for any other rate nugatory and to treat the contract for carriage as one for the established rate and permit a recovery for an undercharge. Obviously the permitting of such a recovery is a much more effective way of enforcing the law than any other could possibly be. The same is true of the contract carrier act. Fines and penalties might be imposed, but the pressure of the shippers upon the carriers for reduced rates in violation of the statute will almost entirely be relieved if the shippers know that notwithstanding any illegal bargain that is made recovery may still be had on the basis of the minimum rate fixed by the commission. Collusion between the carrier and the shipper to circumvent the law, which would otherwise be easy of accomplishment, will be practically eliminated. All these considerations apply with equal force to the maintenance of the contract carrier rates fixed by the commission. The conservation of the highway and, the safety of the public are just as dependent upon the maintenance of the contract carrier rates as the objects sought by the common carrier acts are dependent upon the maintenance of the rates fixed by the commission. In our opinion, the public welfare calls more imperatively for the enforcement of the former than the latter. It is paramount to any public policy which may be invoked to leave the parties where they find themselves. In our opinion, the minimum rates fixed by statute should be read into the contract as binding upon defendant, and there can be no estoppel by virtue of the agreement to take the illegal rate. City of St. Paul v. Minnesota Transfer R. Co., 155 Minn 237, 240 (193 NW 175). The right of private contract at a lower rate has been taken from both the shipper and the carrier and the minimum rate substituted therefor. Such, in our opinion, was the legislative intent.”
The above decision of the Minnesota court was cited and followed in Hawley v. Little Falls Mill & Mercantile Co., 220 Minn 165, 168 (19 NW2d 161), where it was said:
“The law is well established that a contract carrier may bring action against a shipper to recover full freight charges as fixed by the State railroad and warehouse commission, notwithstanding an agreement between them to transport merchandise at a lower rate. While the carrier is equally guilty with the shipper in attempting to evade the law, nevertheless the carrier may recover any balance due, in accordance with the established rates. This is to deter and discourage agreements to carry freight at less than the lawful rates. Under such circumstances, as this court held in Johnston v. L. B. Hartz Stores, Inc., 202 Minn 132 (277 NW 414), the contract between the carrier and the shipper becomes one for the minimum rate authorized by the commission, notwithstanding the agreement to the contrary. While ordinarily parties to an illegal agreement are left where the court finds them and neither may recover from the other for violation of rights under such agreement, where freight rates are involved, since the public and other shippers are also concerned with enforcement of the law, the courts have permitted the carrier to recover the full rate, even though he be equally guilty with the shipper.”
The Federal courts have repeatedly held in cases involving the application of the interstate commerce act that under the provisions thereof requiring the charging of rates by carriers in accordance with tariffs filed and in effect at the time, and forbidding rebates and discrimination in any form, parties to a transportation agreement are bound by the published rates and the carrier is entitled to collect accordingly. In Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 US 577 (40 S Ct 27, 63 L ed 1151), the consignee of a certain shipment by freight paid the freight charges in accordance with the bill presented to him. There was a variance, however, between the amount so paid and the filed rate. Quoting the provisions of the statute, the court in holding that plaintiff was entitled to recover the difference between the amount accepted by the carrier and the legal charge said, in part (pp 581, 582):
“It was, therefore, unlawful for the carrier upon delivering the merchandise consigned to Fink to depart from the tariff rates filed. The statute made it unlawful for the carrier to receive compensation less than the sum fixed by the tariff rates duly filed. Fink, as well as the carrier, must be presumed to know the law, and to have understood that the rate charged could lawfully be only the one fixed by the tariff. When the carrier turned over the goods to Fink upon a mistaken understanding of the rate legally chargeable, both it and the consignee undoubtedly acted upon the belief that the charges collected were those authorized by law. Under such circumstances consistently with the provisions of the interstate commerce act the consignee was only entitled to the merchandise when he paid for the transportation thereof the amount specified as required by the statute. For the legal charges the carrier had a lien upon the goods, and this lien could bo discharged and the consignee become entitled to the goods only upon tender or payment of this rate. Texas & Pacific R. Co. v. Mugg, 202 US 242 (26 S Ct 628, 50 L ed 1011). The transaction, in the light of the act, amounted to an assumption on the part of Fink to pay the only legal rate the carrier had the right to charge or the consignee the right to pay. This may be in the present as well as some other cases a hardship upon the consignee due to the fact that he paid all that was demanded when the freight was delivered; but instances of individual hardship cannot change the policy which Congress has embodied in the statute in order to secure uniformity in charges for transportation.”
The above decision was followed in New York Central & Hudson River R. Co. v. York & Whitney Company, 256 US 406 (41 8 Ct 509, 65 L ed 1016), where it was said:
“We think the doctrine announced in Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 US 577 (40 S Ct 27, 63 L ed 1151), is controlling, and that the liability of York & Whitney Company was a question of law. The transaction between the parties amounted to an assumption by the consignee to pay the only lawful rate it had the right to pay or the carrier the right to charge. The consignee could not escape the liability imposed by law through any contract with the carrier.”
In Louisville & Nashville R. Co. v. Central Iron & Coal Company, 265 US 59 (44 S Ct 441, 68 L ed 900), the plaintiff carrier sought to recover the difference between the amount that it had accepted in payment of freight charges and the amount fixed by the tariff on file with the interstate commerce commission. Citing the prior decisions above discussed, it was said (p 65):
“The shipment being an interstate one, the freight rate was that stated in the tariff filed with the interstate commerce commission. The amount of the freight charges legally payable was determined by applying this tariff rate to the actual weight. Thus, they were fixed by law. No contract of the carrier could reduce the amount legally payable; or release from liability a shipper who had assumed an obligation to pay the charges. Nor could any act or omission of the carrier (except the running of the statute of limitations) estop or preclude it from enforcing payment of the full amount by a person liable therefor.”
Of like import are Louisville & Nashville R. Co. v. Williamson (CCA 5), 87 F2d 34; New York Central R. Co. v. Transamerican Petroleum Corporation (CCA 7), 108 F2d 994 (129 ALR 206); Pennsylvania R. Co. v. Cameron, 280 Pa 458 (124 A 638, 33 ALR 1281); Garrison Coal Co. v. Hinds, Director Gen. of R. R., 118 Okla 251 (247 P 62, 46 ALR 1151). In the Oklahoma Case the action was brought against the defendant Coal Company to recover additional charges in accordance with its liability under the tariff filed with the interstate commerce commission. The defendant claimed that it had accepted and paid a voucher covering charges on the shipments in question on which voucher there was a notation to the effect that it was “in full settlement.” In rejecting the defense, it was said (p 254):
“The effect of the acceptance of the voucher was to operate as a satisfaction of that portion of the indebtedness, as created by the tariff, equal to the sum of money received from the voucher. The carrier’s acceptance of a payment for freight and demurrage charges, less than the amount due according to the rates and charges prescribed by the tariff, •does not operate as a satisfaction for a greater charge than the amount of the payment. A payment of a less sum of money than the amount of charges as fixed by the tariff would not operate to satisfy fully the indebtedness, even though the consignee and carrier intended the less payment to be full payment of the charges. The rate laws were enacted and the tariff rates created and established for the purpose of preventing discrimination in favor of or against consignees and shippers. A discrimination in favor of or against a shipper or consignee cannot be justified, either by mistake or agreement. The carrier is obligated to charge for services and receive compensation for such services according to the published tariff rates, and the consignees and shippers must pay for such services according to the prescribed rates. Mistake or agreement will not relieve the parties from such obligations.” (Citing cases.)
The intent of the legislature in the enactment of the provisions of the motor carrier act here involved is clear. It was sought to protect the public against discrimination by carriers and to insure uniform rates for transportation services. To that end agreements between shippers and motor carriers for the payment of rates varying from those prescribed by the public service commission and set forth in the tariff of each carrier as filed with the commission were barred. The accomplishment of the purpose sought requires that a carrier operating under a State certificate must charge and must collect the rates fixed in accordance with the law.
We are not dealing here with an ordinary type of contract between individuals but with a matter affecting the public generally. The claim of the defendant that the parties must be left where they have placed themselves pursuant to the principle commonly recognized in cases involving ordinary illegal contracts may not be accepted. Such princi pie must yield to the rule of public policy that the courts in the decisions above cited, and in other decisions of like nature, have recognized as paramount. The public welfare will be best served by accepting the doctrine that shippers and motor carriers entering into agreements for transportation services shall be deemed to have made the kind and character of contract permitted by the statute regulating such transaction.
The judgment of the circuit court is reversed, and the case remanded with directions to enter judgment pursuant to the stipulation of the parties and in the amount therein set forth. Plaintiff may have costs of this appeal.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ.; concurred.
PA 1933, No 254, as amended (CL 1948, § 475.1 et seq., as amended [Stat Ann § 22.531 et seq., as amended.]). | [
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] |
Dethmers, C. J.
Plaintiff sued to recover business activities taxes paid under protest. This is its appeal from summary judgment of no cause for action.
It is plaintiff’s position that the trial court erred in entering judgment for defendants because:
“1. The only activities of plaintiff in Michigan are integral and inseparable incidents of interstate commerce and consequently plaintiff’s receipts are solely derived from or attributable to either intrastate activities wholly without Michigan or to interstate commerce.
“2. The tax under consideration is in operation and effect the equivalent of a tax on gross receipts and is therefore a direct tax on interstate commerce. Furthermore the tax exposes plaintiff’s receipts from interstate commerce to a multiple burden. Such a direct and multiple burden is forbidden by tbe commerce clause of the Federal Constitution.
“3. Even assuming that the tax in question is a tax on local activity, and further assuming that plaintiff’s activity in Michigan is ‘local’ in nature, the manner in which the tax is applied to the plaintiff does not limit the tax to Michigan activity but results in a substantial tax on activities taking place outside of the State of Michigan contrary to guarantees of due process.
“4. The tax violates the Michigan Constitution by failing to distinctly state the tax and by requiring reference to other law.
“5. Finally, without regard to the foregoing constitutional objections, the department of revenue has incorrectly construed and applied the phrase ‘gross receipts’ to mean the entire receipts of plaintiff everywhere, instead of its entire receipts derived from its activities in Michigan.”
Plaintiff’s declaration with attached exhibits, defendants’ answer, plaintiff’s reply, affidavits in support of defendants’ motion for summary judgment with attached exhibits, and plaintiff’s affidavit of merits filed in opposition thereto, are the sources from which the facts are to be gleaned. As set forth in those sources, the undisputed, pertinent facts, and the allegations of material facts, necessary to decision herein, which, though disputed by defendants, favor plaintiff, are as follows:
Plaintiff is an Ohio corporation with its principal place of business there. It is engaged in the production, manufacture, and sales of various types of steel and steel products. All of its production and manufacture, from the smelting of ore through fabrication of steel and steel products and storing of same, occur outside of Michigan. Plaintiff has not been qualified to do business in Michigan, although defendants claim that it should have been. It has a sales office in Detroit and a branch office in Grand Rapids, which plaintiff alleges are maintained solely for convenience in the solicitation of orders for its products. It maintains a bank account in Michigan for the convenience of the operations of the 2 offices. It employs in Michigan 5 salesmen, who solicit orders for its products in this State, and 8 clerks, in the 2 offices, who facilitate the work of the salesmen and process the orders obtained by them. It has more than 31,000 employees. Its Michigan payroll is less than 1/10 of 1% of its total payroll. The total value of its property in Michigan is less than 1/40,000 of its total property. Orders from Michigan are accepted or rejected at the home office in Ohio. Its sales to Michigan customers are shipped f.o.b. points outside this State, and payments by them are made to plaintiff at its Ohio offices. During 1954 and 1955, the period here involved, plaintiff’s receipts from all sources were $1,036,764,419.13 and those from sales in Michigan $91,038,459.21.
Plaintiff’s 5 Michigan salesmen not only solicit orders for its products, but they also discuss adjustments with customers for malfunctioning of its steel deliveries, involving less than 1% of its sales here. They are in charge of and responsible to plaintiff’s district sales manager in this State, who reports to an area manager in Ohio. Under the district sales manager there is an office manager in Detroit, who is in charge of the general work in the 2 offices and of the clerical aspects of processing Michigan orders and handling related correspondence.
Included in the duties and responsibilities of plaintiff’s district sales manager in Michigan are the following : To serve the customer’s interests, to direct plaintiff’s activities in the Detroit area, to act in a consulting capacity, to assume managerial responsibilities, to direct and coordinate activities of sales personnel in an effort to carry out effectively and efficiently management requests pertaining to the securing of profitable business in Michigan, to promote and protect the best interests of plaintiff, to provide proper and adequate leadership, to keep his immediate superior informed of any unusual changes made by customers and competition which may affect plaintiff’s overall position in the industry, including prices, expansion, strikes, changes in personnel, new products and grades, et cetera, to develop and maintain a harmonious working staff to work with customers and the home office, to build up customer relationships, to endeavor to operate within the budget, with especial emphasis on controllable items, to direct performance of assignments and responsibilities delegated by management, to resolve claims and complaints, to help plan sales programs, to analyze customers’ needs in relation to patterns and determine the distribution of allotted tonnages, to report and resolve matters of price, quality, practices and methods not considered ordinary or competitive, to observe and report trends of commercial, industrial or economic nature as may affect or influence future business levels and plaintiff’s planning, to maintain and develop contacts other than of a straight sales nature that may be of benefit to plaintiff, at times to accompany salesmen on customer calls and customers on calls to the home office, to set up budgets and disburse moneys for traveling expenses of salesmen, et cetera. He is not required to be a salesman or to solicit orders.
The Detroit office manager is under the sales manager. He is responsible for the prompt and accurate execution of all work involved in handling inquiries, quotations, entry, and service of orders, and general service to customers and district office personnel. This includes direct supervision of some 7 or 8 persons who are under the indirect supervision of the district sales manager. It also entails the responsibility for the accuracy of records in the office on quotas, status of orders, et cetera, and of files, such as pending claims, correspondence and the like, visualizer, order books, tonnage, and various other records, including salesmen’s call reports and general information in regard to customer packaging and traffic problems.
The role of plaintiff’s Michigan salesmen is extensive. Existing customers of plaintiff in Michigan are assigned to individual salesmen. Each salesman is generally given a specific territory in which existing customers are located, to the end that all the area of the State of Michigan and all existing customers are assigned and served by sales personnel of plaintiff. Approximately 40 °/o of the time of the salesmen is spent in the district office, answering inquiries of the customers assigned to them and adjusting, processing, correcting, and screening customers’ orders. The remaining time of the salesmen is spent in making calls on customers assigned to them at the customers’ places of business. The salesmen’s service activities include processing order changes; handling quality problems; investigating into customers’ claims and complaints; negotiating settlement of such claims and complaints; assisting the customer and other personnel of plaintiff by arranging for mill representatives, sales engineers, metallurgists, research personnel, market development personnel, and credit representatives to visit the customer and give specialized help; and providing technical information to customers’ research or metallurgical personnel, which the salesmen secure from plaintiff’s technical personnel at plaintiff’s mill locations or its home office in Middletown, Ohio. The activity of plaintiff’s salesmen in providing these services to customers assigned to them is discharged primarily by regular, routine, and systematic calls on the customers at the locations where the customers are using the plaintiff’s products. Plaintiff’s sales men make general, routine contacts with the customers to handle specific problems or complaints and to get commitments for orders on a continuing basis and in handling complaints and problems in connection with processing orders in their offices.
Both in connection with the ordering of steel to make new parts, and in connection with claims of Michigan customers, mill representatives are frequently in Michigan. The mill representatives have special technical knowledge of the physical characteristics and qualities of plaintiff’s products and their application to particular uses. The activities of such representatives of plaintiff in Michigan are solely an aid to plaintiff’s sales efforts. If there is a complaint, for instance, that a given shipment of steel did not perform as specified, the salesman would request assistance from the mill, whereupon a mill representative would accompany the salesman to the customer’s plant to investigate the complaint and to determine whether it was justified. If the mill representative should conclude that the complaint was justified, so that an adjustment was indicated, the decision as to the type of adjustment to be made and the amount of the same would uniformly be made in Middletown, Ohio.
Product managers also come into Michigan. The duties and responsibilities of these personnel are primarily centered around special sales effort and technical assistance to stimulate and promote the sale of a specific product. In carrying out these responsibilities, the product managers, being more familiar with the particular problems of a particular product, are called in on quality and application problems in an advisory capacity by salesmen at present and future customers’ locations, including Michigan.
Yarious executive personnel, such as the vice president in charge of distribution, general manager of the sales division, and area sales managers of appel lant contact Michigan customers from time to time on such situations as negotiation of allotments, potential steel requirements of customers, advance commitments of customers for use of plaintiff’s products, disposition of quality problems warranting top-level consideration because of the magnitude, and for future planning and projection purposes, including determination of future sales policy, the capacity and limitation of mills, and the problem of maintaining plaintiff’s position in the market or industry, both within and without the State of Michigan.
Market development division personnel come into Michigan to gather statistical and other information regarding a particular product or industry in order that plaintiff’s management can key their current and potential production capacities to changing market conditions.
Research division personnel make various visitations to Michigan customers for the purpose of coordinating certain research projects with customers’ needs; assisting customers in certain applications of plaintiff’s products; observing and advising on trends being made on products sold by plaintiff; and giving technical assistance, when necessary, in the solution of production and quality problems, including establishing proper testing methods, of other divisions of plaintiff, including market development and sales.
Operating division personnel visit customers of plaintiff in this State on various quality problems and methods of application of plaintiff’s steel products. In addition, various operating division executives, such as the vice president in charge of operations, administrative assistant to the vice president in charge of operations, and mill, or works, managers, have made visits to Michigan customers to familiarize themselves and to assist the customers on various methods of application, on future planning and ex pansion of facilities, mill limitations, and various other operating policies.
Various visits have been made by the credit manager of the treasury division to customers in Michigan to review the financial condition of the customer and obtain the potentiality of customers for the purpose of credit extension.
Traffic division personnel visit Michigan from time to time to investigate and contact customers with reference to traffic and shipping problems, including questions of responsibility of damaged shipments, new methods of shipping, packaging, and handling-plaintiff’s steel products.
The activities of all the above referred to personnel in this State are generally at the request of and subject to the direction and control of the Detroit district office where they are coordinated and implemented by various office personnel of the plaintiff who carry on their activities in the Detroit district office.
All of the orders obtained by plaintiff from its Michigan customers involve activity of plaintiff’s employees in this State. Orders are processed and screened through the Detroit district office on such items as tonnage allotments, loading and shipping data, promises of delivery dates, credit information, specifications, and other information required to properly process an order through the sales service department of the sales division of plaintiff located in Middletown, Ohio. Routinely, orders sent in by customers do not contain many of the items of information essential to the processing of such orders through the sales service department. The information on a customer’s order, together with other information necessary to complete such order, are routinely copied on a uniform yellow worksheet, which is the paper processed by plaintiff’s sales service department rather than the incompleted order of the customer. The information not appearing on an order sent in by a customer, with the exception of the date of delivery promises, is contained on what is known as a “visualizer” in the Detroit office. Each order is completed and screened in this manner through the Detroit district office prior to transmittal to the sales service department of plaintiff at Middle-town, Ohio. If an order contains information not in agreement with information appearing on the “visualizer,” the order is either corrected and processed or it is rejected and returned to the customer, depending on the nature or extent of the discrepancy. If, for example, a problem in regard to delivery date or specification is involved and personnel in the Detroit office believe it can be cleared with the customer, the customer will be contacted and the order will be changed accordingly and processed. If the order calls for a product that is not available because of the lack of steel or because plaintiff is not in a position to fill that order because of prior commitments or the limitations of its mills, the order is automatically rejected.
The activity of all of plaintiff’s personnel in this State is directly related to plaintiff’s ability to have, establish, and maintain in this State a market for its products. Much of the activity of plaintiff in this State is not directly related to the solicitation of any particular orders for any of plaintiff’s products, Plaintiff’s salesmen do not routinely solicit specific orders but spend their time in making general, routine contacts with the customers to handle specific problems or complaints and to get commitments for orders on a continuing basis.
The lower court concluded that plaintiff carries on continuously a systematic and regular activity, utilizing the State of Michigan as one of the markets for its products; that some of the activity here in Michigan takes jelace before the interstate movement of plaintiff’s products, and some afterwards. The court further concluded that in necessary result the business activities tax here reaches income-producing transactions in the State of Michigan; that there is a sufficient activity here in the State to establish jurisdictional presence for tax purposes, and that the formula used, since it attempts to reach only that portion -which is attributable to Michigan activity, contravenes neither the due process nor commerce clauses of the Federal Constitution.
The time here involved is 1954r-1955. In effect during that period was PA 1953, No 150, as originally enacted (Stat Ann 1953 Cum Supp § 7.557[1] et seq.), then as amended by PA 1954, No 17, effective March 12, 1954 (CLS 1954, § 205.551 et seq.), and, finally, as amended by PA 1955, No 282, effective July 1, 1955 (CLS 1956, § 205.551 et seq. [Stat Ann 1955 Cum Supp § 7.557(1) et seq.}). The title announces it to be “An act to provide for the raising of additional public révenue by prescribing certain specific taxes on income * * * .” The act provides that the terms “income” and “adjusted receipts” are used therein interchangeably and that they shall be the gross receipts from business, including sales, less specified deductions, consisting of certain costs of conducting business, or, if such deductions do not constitute at least 50% of the gross receipts, then less a 50% deduction. The definition of “gross receipts” includes the entire receipts from any sales, whether made in inter- or intrastate commerce. A number of exemptions from the tax are provided, including the first $10,000 of adjusted receipts, and anything which the State is expressly or impliedly prohibited from taxing by the Constitution of the United States.
With respect to adjusted receipts or income of the business of persons engaging in any activity in Michigan a tax of 4 mills was laid on such adjusted receipts allocated to Michigan or, under later amend ment, 6-1/2 mills on adjusted receipts derived from or attributable to Michigan sources. The act, as last amended, provides that adjusted receipts derived from or attributable to Michigan sources shall be taken to be (1) the entire adjusted receipts of a taxpayer whose business transactions take place entirely within the State, but, (2) in the case of a taxpayer whose business transactions occur partially within and partially without this State, only that portion of his adjusted receipts obtained by applying thereto the following apportionment formula, viz., the average of the following 3 percentages, separately computed: (1) ratio of taxpayer’s Michigan property to all of his property, (2) ratio of wages paid by taxpayer in Michigan to wages he paid everywhere, and (3) ratio of his gross receipts from Michigan sales to those obtained from sales everywhere. Before the 1955 amendment a different formula was applied. The amendments are not significant to the constitutional questions here involved.
This tax is part of a general scheme of State taxation of business activities in Michigan. It is a tax on Michigan activities measured, in amount, by adjusted receipts derived from or attributable to Michigan sources, which, as above noted, in the case of a taxpayer whose business transactions occur entirely within Michigan, means his entire adjusted receipts, but, if his business transactions occur partly within and partly without this State, means the sum reached by applying to his adjusted receipts the mentioned apportionment formula. It is, therefore, not a gross receipts tax. Neither is it, as hereinafter considered, a tax on the privilege of doing interstate business in Michigan.
Is the interstate commerce clause, US Const, art 1, § 8, offended by this tax as applied to plaintiff’s business activities? An excellent listing and classification of the leading decisions of the United States su preme court in this general area are to be found in Mr. Justice Edwards’ opinion in Duluth, South Shore & Atlantic R. Co. v. Corporation & Securities Commission, 353 Mich 636, on pages 655, 656 and 657, examination of which is invaluable to consideration of the problem before us. Pertinent from that opinion is the following:
“On the other hand, the same court [United States supreme court] has upheld as not offending the commerce clause State taxes in at least the following classifications : * * *
“(2) Taxes levied upon net income of business engaged in interstate commerce where the portion of net income taxed was reasonably apportioned as to the taxing State. United States Glue Co. v. Town of Oak Creek, 247 US 321 (38 S Ct 499, 62 L ed 1135, Ann Cas 1918E, 748); Underwood Typewriter Co. v. Chamberlain, 254 US 113 (41 S Ct 45, 65 L ed 165); Bass, Ratcliff & Gretton, Limited, v. State Tax Commission, 266 US 271 (45 S Ct 82, 69 L ed 282).
“(3) Taxes levied directly upon interstate commerce (or gross receipts therefrom) but held reasonably related to occasioning interstate commerce to pay its own way in the taxing State. Postal Telegraph Cable Co. v. City of Richmond, 249 US 252 (39 S Ct 265, 63 L ed 590); Interstate Busses Corporation v. Blodgett, 276 US 245 (48 S Ct 230, 72 L ed 551); Western Live Stock v. Bureau of Revenue of New Mexico, 303 US 250, see cases cited, p 254 (58 S Ct 546, 82 L ed 823, 115 ALR 944).”
Plaintiff’s continuous and systematic Michigan activities in developing and using this State as a market for its product and the functions of its salesmen, all as above outlined, clearly distinguish this from the long line of drummer cases invalidating imposition by States or municipalities of a license tax on drummers for the privilege of soliciting orders for interstate business, such as Robbins v. Shelby County Taxing District, 120 US 489 (7 S Ct 592, 30 L ed 694), Memphis Steam Laundry v. Stone, 342 US 389 (72 S Ct 424, 96 L ed 436), and Nippert v. Richmond, 327 US 416 (66 S Ct 586, 90 L ed 760, 162 ALR 844). The nature of the tax before us, as spelled out in the second preceding paragraph, is not, as those in the drummer cases were held to be, a tax on interstate commerce nor on the privilege of conducting it, held unconstitutional in such cases as Spector Motor Service, Inc., v. O’Connor, 340 US 602 (71 S Ct 508, 95 L ed 573). In B. F. (Goodrich Company v. State of Washington, 38 Wash2d 663 (231 P2d 325) (certiorari denied, 342 US 876 [72 S Ct 167, 96 L ed 659]), where the activities of the taxpayer within the State were markedly similar to those of plaintiff in Michigan, the court said (p 673):
“It seems clear that, under this test, the sales made by the B. F. Goodrich Company in classes A, B, and D are constitutionally taxable. In all of these sales, business is channeled through the company’s local outlets, and not only has appellant failed to demonstrate that the services rendered by these offices do not play a significant part in establishing and holding this market, it affirmatively appears that they do so. In this connection, McLeod v. J. E. Dilworth Co., 322 US 327 (64 S Ct 1023, 88 L ed 1304), is of no assistance to appellant; for, there, the company which Arkansas sought to tax maintained no local office within Arkansas, but operated only through itinerant solicitors; and this fact, as the Norton Company Case (Norton Co. v. Department of Revenue of Illinois, 340 US 534 [71 S Ct 377, 95 L ed 517]) demonstrates, is sufficient to mark a controlling distinction between the McLeod Case and that at bar.”
In McGoldrick v. Berwind-White Coal Mining Co., 309 US 33, 56, 57 (60 S Ct 388, 84 L ed 565, 128 ALR 876), the court said:
“It is enough for present purposes that the rule of Robbins v. Shelby County Taxing District, supra, has been narrowly limited to fixed-sum license taxes imposed on the business of soliciting orders for the purchase of goods to be shipped interstate.”
Also, in the Nippert Case the court said (pp 424, 425):
“Thus the essence of the distinction taken in the Berwind-White Case was that the taxes outlawed in the drummer cases in their practical operation worked discriminatorily against interstate commerce to impose upon it a burden, either in fact or by the very threat of its incidence, which they did not place upon competing local business.”
This distinction made in Nippert is highly significant here inasmuch as the facts before us, drawn from the sources above mentioned, show no such discrimination or undue burden.
Plaintiff cites Fargo v. Michigan, 121 US 230 (7 S Ct 857, 30 L ed 888), New Jersey Bell Telephone Co. v. Tax Board of New Jersey, 280 US 338 (50 S Ct 111, 74 L ed 463), Freeman v. Hewit, 329 US 249 (67 S Ct 274, 91 L ed 265), and other cases for the proposition that direct taxes on gross receipts from interstate commerce are forbidden to the States. None-involved, as here, an apportioned adjusted receipts or income tax. In Western Live Stock v. Bureau of Revenue of New Mexico, 303 US 250, 256, 257 (58 S Ct 546, 82 L ed 823, 115 ALR 944), the court said:
“Taxation measured by gross receipts from interstate commerce has been sustained when fairly apportioned to the commerce carried on within the taxing state, Wisconsin & M. R. Co. v. Powers, 191 US 379 (24 S Ct 107, 48 L ed 229); Maine v. Grand Trunk R. Co., 142 US 217 (12 S Ct 121, 163, 35 L ed 994); Cudahy Packing Co. v. Minnesota, 246 US 450 (38 S Ct 373, 62 L ed 827); United States Express Co. v Minnesota, 223 US 335 (32 S Ct 211, 56 L ed 459), and in other cases has been rejected only because the apportionment was found to be inadequate or unfair. Fargo v. Michigan, 121 US 230 (7 S Ct 857, 30 L ed 888); Galveston, H. & S. A. R. Co. v. Texas, 210 US 217 (28 S Ct 638, 52 L ed 1031); Meyer v. Wells, Fargo & Co., 223 US 298 (32 S Ct 218, 56 L ed 445), with which compare Wisconsin & M. R. Co. v. Powers, supra. Whether the tax was sustained as a fair means of measuring a local privilege or franchise, as in Maine v. Grand Trunk R. Co., supra; Ficklen v. Shelby County Taxing Dist., 145 US 1 (12 S Ct 810, 36 L ed 601); American Manfg. Co. v. St. Louis, 250 US 459 (39 S Ct 522, 63 L ed 1084), or as a method of arriving at the fair measure of a tax substituted for local property taxes, Cudahy Packing Co. v. Minnesota, supra; United States Express Company v. Minnesota, supra; cf. Postal Telegraph Cable Co. v. Adams, 155 US 688 (15 S Ct 268, 360, 39 L ed 311); see McHenry v. Alford, 168 US 651, 670, 671 (18 S Ct 242, 42 L ed 614), it is a practical way of laying upon the commerce its share of the local tax burden without subjecting it to multiple taxation not borne by local commerce and to which it would be subject if gross receipts, unapportioned, could be made the measure of a tax laid in every State where the commerce is carried on.”
In Central Greyhound Lines, Inc., v. Mealey, 334 US 653 (68 S Ct 1260, 92 L ed 1633), the conrt considered a State tax on gross receipts from the transportation of passengers between 2 points within the State over a route partially in and partially out of the State, and held such tax constitutional if apportioned to include mileage within the State and to exclude the mileage outside the State. The court said (p 663) of such tax that it was lawful if “fairly apportioned” to the “business done within the State by a fair method of apportionment.” We hold that, within the meaning of this Greyhound Case, such fair method of apportionment is provided in the Michigan statute which levies a tax not on gross receipts ,(in view of its deductions, exemptions, and appor tionment features), but only on “adjusted receipts” derived from or attributable to Michigan sources, under an apportionment formula.
The so-called “Indiana Gross Receipts Tax” cases, referred to by plaintiff, such as J. D. Adams Manfg. Co. v. Storen, 304 US 307 (58 S Ct 913, 82 L ed 1365, 117 ALR 429), holding invalid such tax on gross receipts in Indiana from sales to out-of-state customers, are distinguishable in that that tax lacked an apportionment feature such as exists in the Michigan statute, and there the tax was sought to be levied by the seller’s State on proceeds from sales outside the State, while involved here is a tax by the buyer’s State. For cases upholding similar taxes imposed by the buyer’s State, by reason of the activities in which the seller engaged in such State, see West Publishing Co. v. McColgan, 27 Cal2d 705 (166 P2d 861) (affirmed 328 US 823 [66 S Ct 1378, 90 L ed 1603]), and Field Enterprises, Inc., v. State of Washington, 47 Wash2d 852 (289 P2d 1010) (affirmed 352 US 806 [77 S Ct 55, 1 L ed 2d 39]). These support this Michigan tax on plaintiff’s business activities in this State, even if it were to be viewed as a gross receipts tax. In fact, however, it is not such tax, but an income tax, measured by adjusted receipts and arrived at by application of an apportionment formula and the prescribed rate.
Plaintiff, in alluding to cases approving State taxes on net income derived from interstate commerce apportioned to the taxing State, such as United States Glue Co. v. Oak Creek (1918), 247 US 321 (38 S Ct 499, 62 L ed 1135, Ann Cas 1918E, 748); Shaffer v. Carter (1920), 252 US 37 (40 S Ct 221, 64 L ed 445); Underwood Typewriter Co. v. Chamberlain (1920), 254 US 113 (41 S Ct 45, 65 L ed 165), says they arc distinguishable in that the taxes upheld were measured by net income while the one at bar is measured by gross receipts, quoting, with respect to the significance of that distinction, from the United States Glue Co. Case. Plaintiff terms this a gross receipts tax because, among the deductions permitted, permission is notably missing for deductions from gross receipts for payroll and depreciation. (Deduction for depreciation of real property is now permitted by the 1955 amendment.) In plaintiff’s view, permission to make those deductions is prerequisite to the validity of the tax as an income tax. In this connection we quote from Atlantic Coast Line R. Co. v. Daughton, 262 US 413 (43 S Ct 620, 67 L ed 1051), footnote 6 on p 422, the following:
“The term 'net income,’ in law or in economics, has not a rigid meaning. Every income tax act necessarily defines what is included in gross income; what deductions are to be made from the gross to ascertain net income; and what part, if any, of the net income, is exempt from taxation. These details are largely a matter of governmental policy. As to them States differ; and there is apt to be difference of view in the same States at different times; and at the same time a different definition of taxable net income for different classes of taxpayers. Obviously such differences in detail do not render obnoxious to the commerce clause a State income tax which is otherwise unobjectionable.”
Accordingly, we think the mentioned income tax cases in point here and that their holdings and reasoning, by analogy at least, support the validity of the tax at bar.
Is the tax, as applied to plaintiff here, violative of due process for extraterritoriality? Does it tax transactions, events or activities beyond Michigan’s borders? (See: Compania General de Tabacos de Filipinas v. Collector of Internal Revenue [1927], 275 US 87 [48 S Ct 100, 72 L ed 177]; Equitable Life Assurance Society of the United States v. Pennsylvania [1915], 238 US 143 [35 S Ct 829, 59 L ed 1239]; Connecticut General Life Insurance Co. v. Johnson [1937], 303 US 77 [58 S Ct 436, 82 L ed 673].) Does it attribute to taxable activity within Michigan’s borders an unreasonable and arbitrary portion of plaintiff’s activity elsewhere? (See: Hans Rees’ Sons, Inc., v. North Carolina [1931], 283 US 123 [51 S Ct 385, 75 L ed 879].) We think not. It does not attempt to reach outside the taxing State,, as in Connecticut General Life Insurance Co. v. Johnson, supra. It does not reach profits attributable only to transactions beyond this State’s borders as in Hans Rees’ Sons, Inc., v. North Carolina, supra. As held in that case, a reasonable apportionment formula, provided in the statute here under consideration, ends questions of due process. In keeping with the test in James v. Dravo Contracting Co., 302 US 134 (58 S Ct 208, 82 L ed 155, 114 ALR 318), the tax is levied on activities carried on within this State. The statute carefully provides that it shall be levied only on “adjusted receipts,” “derived from or attributable to Michigan sources.” This makes for fair an'd reasonable apportionment of the tax to Michigan business, Michigan activities only. To requote from Western Live Stock v. Bureau of Revenue of New Mexico, 303 US 250, 256 (58 S Ct 546, 82 L ed 823, 115 ALR 944):
“Taxation measured by gross receipts from interstate commerce has been sustained when fairly apportioned to the commerce carried on within the taxing State.”
When plaintiff seeks to attack the formula of apportionment as unreasonable or unfair, the distinct burden rests upon it of “showing by ‘clear and cogent evidence’ that it results in extraterritorial values being taxed.” Butler Brothers v. McColgan, 315 US 501, 507 (62 S Ct 701, 86 L ed 991). Such are not the' facts before us, to be drawn from the sources above indicated. Plaintiff’s receipts from business in this State for the period in question amounted to $91,-000,000. The tax exaction involved in this case is $95,951.71, or about 1/10 of 1% of the total Michigan business figure. This is not an unreasonable tax on business activities in Michigan. The tax as apportioned bears a real and reasonable relationship to the privileges, opportunities, and protection plaintiff enjoys in conducting its interstate business in this State. This meets the requirements of International Shoe Co. v. State of Washington, 326 US 310 (66 S Ct 154, 90 L ed 95, 161 ALR 1057), Wisconsin v. J. C. Penney Co., 311 US 435 (61 S Ct 246, 85 L ed 267, 130 ALR 1229), Ott v. Mississippi Valley Barge Line Co., 336 US 169 (69 S Ct 432, 93 L ed 585), and the many other cases on this subject.
We think it may be said of the due process clause as well as of the commerce clause, as was said concerning the latter by the United States supreme court in Western Live Stock v. Bureau of Revenue of New Mexico, 303 US 250, 254 (58 S Ct 546, 82 L ed 823, 115 ALR 944):
“It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of State tax burden even though it increases the cost of doing the business. ‘Even interstate business must pay its way,’ Postal Telegraph-Cable Co. v. City of Richmond, 249 US 252, 259 (39 S Ct 265, 63 L ed 590); Ficklen v. Shelby County Taxing Dist., 145 US 1, 24 (12 S Ct 810, 36 L ed 601); Postal Telegraph Cable Co. v. Adams, 155 US 688, 696 (15 S Ct 268, 360, 39 L ed 311); Galveston, H. & S. A. R. Co. v. Texas, 210 US 217, 225, 227 (28 S Ct 638, 52 L ed 1031).”
As already observed, this tax on Michigan business activities is arrived at by imposing a rate and applying an apportionment formula to “adjusted receipts” or “income” derived from or attributable to Michigan sources. We have previously considered the applicability of the income tax case decisions, on the ground that the extent, character, and details of exemptions and deductions from gross proceeds are not decisive of the question of the nature of the tax. So considered, the case of Northwestern States Porland Cement Co. v. Minnesota, 358 US 450 (79 S Ct 357, 3 L ed 2d 421), is definitely controlling. . (See, also, its companion case, Williams v. Stockham Valves & Fittings, Inc., 358 US 450, footnote [79 S Ct 357, 3 L ed 2d 421].) The Cement Company Case is conclusive of both the commerce clause and due process clause aspects of this case. There the court held that a State income tax imposed on a foreign corporation, computed at a nondiscriminatory rate on that portion of its net income from its interstate business which is reasonably attributable to its business activities in the taxing State, does not violate either the commerce clause or the due process clause of the Federal Constitution. The apportionment formula employed in that case is like that in the instant case. (Massachusetts formula.) The taxpayer’s activities in the taxing State were no more extensive or elaborate, and, in fact, were very similar to those of plaintiff in Michigan. In every respect, it seems to us, both the holding and the reasoning of the court there are applicable to and controlling of the facts and situation at bar. In point from the opinion therein is the following (pp 458, 459, 461, 462) :
“It has long been established doctrine that the commerce clause gives exclusive power to the congress to regulate interstate commerce, and its failure to act on the subject in the area of taxation nevertheless requires that interstate commerce shall be free from any direct restrictions or impositions by the States. Gibbons v. Ogden (1824), 9 Wheat (22 US) 1 (6 L ed 23). In keeping therewith a State ‘cannot impose taxes upon persons passing through the State, or coming into it merely for a temporary purpose’ such as itinerant drummers. Robbins v. Shelby County Taxing District (1887), 120 US 489, 493, 494 (7 S Ct 592, 30 L ed 694). Moreover, it is beyond dispute that a State may not lay a tax on the ‘privilege’ of engaging in interstate commerce, Spector Motor Service v. O’Connor (1951), 340 US 602 (71 S Ct 508, 95 L ed 573). Nor may a State impose a tax which discriminates against interstate commerce either by providing a direct commercial advantage to local business, Memphis Steam Laundry v. Stone (1952), 342 US 389 (72 S Ct 424, 96 L ed 436); Nippert v. Richmond (1946), 327 US 416 (66 S Ct 586, 90 L ed 760, 162 ALR 844), or by subjecting interstate commerce to the burden of ‘multiple taxation,’ Michigan-Wisconsin Pipe Line Co. v. Calvert (1954), 347 US 157 (74 S Ct 396, 98 L ed 583); J. D. Adams Manfg. Co. v. Storen (1938), 304 US 307 (58 S Ct 913, 82 L ed 1365, 117 ALR 429). Such impositions have been stricken because the States, under the commerce clause, are not allowed ‘one single-tax-worth of direct interference with the free flow of commerce.’ Freeman v. Hewit (1946), 329 US 249, 256 (67 S Ct 274, 91 L ed 265).
“On the other hand, it has been established since 1918 that a net income tax on revenues derived from interstate commerce does not offend constitutional limitations upon State interference with such commerce. * * *
“We believe that the rationale of these cases, involving income levies by States, controls the issues here. The taxes are not regulations in any sense of that term. Admittedly they do not discriminate against nor subject either corporation to an undue burden. While it is true that a State may not erect a wall around its borders preventing commerce an entry, it is axiomatic that the founders did not intend to immunize such commerce from carrying its fair share of the costs of the State government in return for the benefits it derives from within the State. The levies are not privilege taxes based on the right to carry on business in the taxing State. The States are left to collect only through ordinary means. The tax, therefore, is ‘not open to the objection that it compels the company to pay for the privilege of engaging in interstate commerce.’ Underwood Typewriter Co. v. Chamberlain (1920), 254 US 113, 119 (41 S Ct 45, 65 L ed 165). As was said in Wisconsin v. Minnesota Mining & Manfg. Co. (1940), 311 US 452, 453 (61 S Ct 253, 85 L ed 274), ‘it is too late in the day to find offense to that [commerce] clause because a State tax is imposed on corporate net income of an interstate enterprise which is attributable to earnings within the taxing State.’
“While the economic wisdom of State net income taxes is one of State policy not for our decision, one of the ‘realities’ raised by the parties is the possibility of a multiple burden resulting from the exactions in question. The answer is that none is shown to exist here. This is not an nnapportioned tax which by its very nature makes interstate commerce bear more than its fair share. As was said in Central Greyhound Lines v. Mealey (1948), 334 US 653, 661, 670 (68 S Ct 1260, 92 L ed 1633), ‘it is interstate commerce which the State is seeking to reach and * * # the real question [is] whether what the State is exacting is a constitutionally fair demand by the State for that aspect of the interstate commerce to which the State bears a special relation.’ The apportioned tax is designed to meet this very requirement and ‘to prevent the levying of such taxes as will discriminate against or prohibit the interstate activities or will place the interstate commerce at a disadvantage relative to local commerce.’ ”
Application of the above quoted language from Northwestern Cement Company to the facts here, leaves the validity of the Michigan tax undoubted. For here, as in that case, (1) there is no direct restriction on interstate commerce, (2) the tax is not imposed on persons coming into the State for a tern porary purpose, such as itinerant drummers, (3) the tax is not laid on the privilege or right of engaging in interstate commerce in the State, (4) the tax does not discriminate against interstate commerce by providing a direct commercial advantage to local business, nor does it subject it to an undue burden, but, on the contrary, it is laid alike on activities in furtherance of either inter- or intrastate business, computed according to the adjusted receipts therefrom derived from or attributable to Michigan sources, (5) the tax is not a regulation of any kind, (6) the State is left to collect only through ordinary means and, hence, the tax does not compel plaintiff to pay for the privilege of engaging in interstate commerce, (7) as in Northwestern Cement Company, the possibility of a multiple burden from this exaction is not made to appear here, (8) this is not an unapportioned tax which by its very nature makes interstate commerce bear more than its fair share and, (9) what the State is exacting is a constitutionally fair demand for that aspect of interstate commerce to which this State bears a special relation. Accordingly, the tax must be held to be constitutional and valid as applied to plaintiff and its activities here. In the language of the trial judge:
“It is our view that in necessary result the business activities tax here reaches income-producing transactions in the State of Michigan; that there is a sufficient activity here in the State to establish jurisdictional presence for tax purposes, and that the formula used since it attempts to reach only that portion which is attributable to Michigan activity, contravenes neither the due process nor commerce clauses of the Federal Constitution.”
We reject plaintiff’s claim that the taxing act violates Michigan Constitution (1908), art 10, § 6, for failure to distinctly state the tax and because of its reference to the United States Constitution in ex- erupting that which the State may not tax under that Constitution. This recognition in the statute of the State’s limitations with respect to imposing a tax violative of the United States Constitution is not an infirmity such as is contemplated by article 10, § 6. Neither is the section violated by the provision in the statute (section 19, CLS 1956, § 205.569 [Stat Arm 1959 Cum Supp § 7.557(19)]) that the department of revenue, in promulgating rules governing deductions as it is therein directed to do, shall follow, where not inconsistent with the act, the rulings of the Federal internal revenue bureau with respect to income tax. It is still the rules of the State department, promulgated as provided by and consistent with the statute, which govern, within the limitations fixed by the statute, and that comports with traditional practice in this State. We find that, despite some lack of artistry in phrasing of section 2(h) of the original act and of section 3(b) of the act as amended, careful attention to their provisions, together with all of those of section 3 as amended (CLS 1956, § 205.553 [Stat Ann 1959 Cum Supp § 7.557 (3)]), should make the computation of the tax well within the competence of those employed in the defendant department and of taxpayers generally affected thereby.
Finally, the parties are in disagreement as to the proper construction to be given the term “gross receipts,” as used in the act, as relates to a taxpayer whose business transactions occur partially within and partially without this State. Plaintiff contends that in determining the adjusted receipts of such taxpayer derived from or attributable to Michigan sources, by application of the apportionment formula to adjusted receipts, the latter are to he arrived at by subtracting the statutory deductions from gross receipts from plaintiff’s Michigan sales only. This, plaintiff reasons, follows from the act’s definition of gross receipts as the taxpayer’s entire receipts, with certain exceptions, from business as therein defined and its definition of business as activities engaged in within this State. Defendants say such deductions are to be taken from plaintiff’s gross receipts from sales both in and outside Michigan with the resulting-adjusted receipts forming the basis, by formula application, for determining adjusted receipts attributable to Michigan. If plaintiff’s contention were given effect, the taxpayer with a total of $1,000,000 receipts whose business transactions all occurred inside Michigan would pay a higher tax than the taxpayer who received $1,000,000 from Michigan sales and $1,000,000 from out-of-State sales, and the latter would pay a great deal more than a third taxpayer who received $1,000,000 • from Michigan sales and $10,000,000 from sales outside Michigan. There is nothing in the act to suggest such legislative intent. Clearly the legislature intended that each should pay a comparable tax on its comparable Michigan activities producing $1,000,000 of receipts from Michigan sales. The provisions of the act providing for taxing of activities of one whose business transactions occur entirely in Michigan and those providing for taxing the activities in Michigan of a taxpayer whose business transactions occur partially within and partially without this State, complement each other, as was held in Western Electric Co. v. Revenue Department, 312 Mich 582, with respect to the Michigan sales tax and its use tax. Complementary taxing of local and interstate business was upheld in Nelson v. Sears, Roebuck & Co., 312 US 359 (61 S Ct 586, 85 L ed 888, 132 ALR 475). While the tax may not discriminate against interstate commerce, there is no constitutional requirement that it do so against intrastate sales, and the statute evidences no legislative intent to do so. To accept plaintiff’s theory poses the question why the statute requires inclusion of gross receipts from sales within and without the State as the denominator in the sales quotient part of the apportionment formula. It is unreasonable to assume that only Michigan gross receipts are to be used as the base for arriving at adjusted receipts derived from Michigan sources, when the formula to be used for that purpose includes as one of its factors a fraction whose denominator is gross receipts derived from everywhere. It is manifest that this process would utterly fail to reflect fairly the proportion of plaintiff’s adjusted receipts attributable to and derived from Michigan sources. This would defeat, in part, the object of the act to tax business activities in Michigan equally by levying on all the income derived therefrom which is attributable to Michigan sources.
Affirmed, without costs, a public question being involved.
Carr, Kelly, Smith, Black, and Edwards, JJ., concurred.
Kavanagh, J., did not sit.
Souris, J., took no part in the decision of this case. | [
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Black, J.
{for affirmance on condition). In principle this zoning case cannot be distinguished from Spanich v. City of Livonia, 355 Mich 252. Much as in Spanich, plaintiff’s 17-acre tract of land — now vacant and zone-restricted to single-family permanent residences — lies immediately adjacent to a new and operational industrial area on one side, the west. A trailer coach park, also operational and bursting at the occupational seams , is situated on another side, the south. To the immediate north and east “are some dwelling's, mostly not modern.” The rub comes from the fact of a newly developing school site lying about 600 feet north of the tract, opposite which “is a new subdivision with modern homes of the value of $15,000 to $18,000.” Such physical facts make it immediately apparent that the defendant municipality in effect has zone-designed the tract as a sort of buffer strip dividing industrial and congested trailer-life areas lying westerly and southerly thereof from a modern residence area which has been and is developing northeast of such strip. Why this was done was considered by the chancellor at length, as ensuing quotation of his opinion will disclose.
The tract, heavily wooded and vacant, consists of the east 17 acres of an original rectangular shaped 37-acre area plaintiff acquired in 1953. The municipal boundaries of that area are Dequindre on the west; Morrissey on the north; Warner on the east; and Bart (but partially opened) on the south. At the time of acquisition such area was zoned by the defendant charter township (now city of Warren) for single-family residential use, designated R-l. For the purpose of planned industrialization thereof, plaintiff made due application under the township zoning ordinance for rezoning of the entire rectangle. The result was an amendment authorizing manufacturing and industrial use applicable -only to the west 20 acres of such rectangle. The remainder, which is the tract in question, was left zoned as before. Plaintiff does not like this, with fair cause as the chancellor held.
Plaintiff’s steady effort' to obtain for the tract a new zoning classification was fruitless. Apparent from the testimony is an obvious conflict of judgment between the township board and the township zoning commission. The latter resolved that the tract should be rezoned according to plaintiff’s request. The former, having the last word, adamantly insisted that the ordinance-ordered classification should stand. As the issue progressed, plaintiff with some justification accused the board of stalling decision upon its application. Heated words followed. Finally, a series of meetings and negotiations having left the board unmoved, plaintiff instituted this suit to so relieve the described tract from the single-residence restriction as to permit its use for trailer coach park purposes. The chancellor, following due hearing and thorough inquiry into facts tending to show possible uses of the tract, prepared a lengthy and carefully considered opinion in which he ruled that the ordinance in pertinent application was and is unreasonable and hence invalid. The decree as entered pursues such ruling and, in addition, affirmatively orders the defendant city to “permit the plaintiff to build and develop said property as a trailer park.” From such decree, the city appeals.
The chancellor concluded, with ample evidentiary support:
“In comparison with other acreage in Warren’s 36 square miles now or soon to become available for residential development with completion of the sewage disposal plant contemplated for this year, it [the 17-aere tract] was perhaps justly termed by one of the witnesses as a ‘substandard or low-grade,’ if not actually a blighted area. A visit made by the court to the area in the company of counsel for both parties prior to the taking of testimony, and the photographs of the area in evidence furnish nothing to disaffirm such observation. One of the witnesses, a builder, testified that plaintiff’s property has absolutely no value for single-family residences due to the impractical economic result produced where expensive structures required by present high construction costs are placed on inexpensive lands in an undesirable location. The plaintiff was unable to obtain a purchaser for R-l residential use of the tract or to finance loans for such use. In spite of the development of residential areas elsewhere in the township, the area in which plaintiff’s property lies has not been developed under the present zoning. The new sewage plant will make available competitive areas which can have no other result than to reduce the desirability and, consequently, the value of plaintiff’s property to a still greater degree by comparison.
“The issue before the court is that presented as of now, and the history of this litigation from the time the property was zoned R-l and before it was purchased by plaintiff to the present time is indicative of the proposition that the city of Warren does not intend to permit trailer parks now or in the future. It is operating in the same way now that it operated under the ordinance prior to its amendment, which originally, in effect, prohibited trailer parks by making no provision therefor, and which condition induced the amendment to the ordinance in providing an R-4 classification, which defendant now ignores by nonobservance of its intent. When the planning commission in apparent good faith adopted its resolution recommending the rezoning of the 17 plus, acres R-4 for mobile homes, it did so with full knowledge of the physical facts disclosed on this record and of general property conditions in the area. That ordinance No 76 is a fagade behind which defendant conceals a purpose to prohibit trailer parks unlawfully, while pretending to countenance their use under lawful conditions is indicated by the fact that even though such ordinance has permitted R-4 zoning classification since September, 1955, a period of nearly 3 years, there is no instance in which either the township board or the city council has approved a rezoning to R-4.
“In this case where the plaintiff is willing to comply with State regulations and with any standards the city of Warren has established for trailer parks, it is met with a down-to-earth proposition stated by the building authority that there is no zoning ordinance permitting trailer parks and no application for such will be received and passed on until provision has been made for such zoning.
“Obviously, there has been a refusal on the part of the township board originally, and on the part of the city of Warren now, to rezone any parcel to R-4, regardless of its location or suitability for R-4 purposes, or unsuitability for R-l purposes, and particularly so as to plaintiff’s property. In so doing the defendant city through its city council is acting arbitrarily and according to its own caprice. The property even before it was purchased by plaintiff was improperly zoned for single-family residences as shown on this record. The subsequent: passage of the original ordinance and the subsequent arbitrary refusal to rezone the property after the amendment emphasizes the fact that the property was never zoned properly in the first instance. No question of use for a trailer park was raised by plaintiff until after defendant refused to give the property a classification in an industrial zone, and until after plaintiff’s efforts to use it as zoned for single-family residences proved fruitless and impracticable.
“While the courts will not interfere with ordinances passed by legislative bodies unless there is no room for legitimate difference of opinion concerning their constitutional unreasonableness, such proposition is _ not applicable to the case here under consideration. The existing zoning ordinance as it affects plaintiff’s property is not a reasonable exercise of the police power. Such zoning provisions are in this instance not predicated upon a public interest, and they have no substantial tendency to promote the public health, safety, morals, and welfare of the people.”
As against these findings we are asked to consider and apply the defendants’ opinion-proof to effect that the tract can be developed for the permitted purpose and that it is marketable for such purpose. The real defense, however, is that “an additional trailer park would result in undesirable density in the area and tend to produce slum conditions,” and that such use if permitted would lead to “overcrowded schools and half day sessions.” The school superintendent testified that children living in trailer parks “exhibit a much higher incidence of maladjustment than do other children.” The defendant municipality submitted other testimony of like import, the specially-alleged force of which is that any more trailer parks in the 36 square miles of Warren’s municipal territory would be undesirable and “unpopular,” and that the previous experience of local authorities with trailer parks has been “distasteful.”
These conditions, appealing as they do for relief, afford no justification for municipal confiscation of property or the outright prohibition of trailer coach parks by the selective administration of a local ordinance. The foremost reason is that statutorily supervised trailer coach life so far has received due approval as a matter of State policy. Such mode of life cannot be outlawed by local act for reasons given in Gust v. Township of Canton, 342 Mich 436 (followed in Smith v. Plymouth Township Building Inspector, 346 Mich 57, and Clark v. Lyon Township Clerk, 348 Mich. 173), and so the stated defense is no defense in these factual circumstances.
As indicated above the chancellor did not accept defendants’ proofs. I agree and would add these general thoughts of concurrence. Plaintiff has fairly established the essential drawbar of its case, that is, this next-to-f actory and next-to-mobile home tract cannot be devoted to construction and use of single-family residences and so — foreseeably—is due to remain “dead land” as long as the ordinance is left free to restrict. Here then is another case where municipal authorities have attempted to ordain that which no one — themselves included- — actually can perform. If single-family permanent dwellers understandably do not care to live immediately adjacent to an industrial area on one side and an area devoted to temporary living on another side, and if the necessary financing of construction of single-family homes is on that account not available, such an ordinance applied as here effects nothing but disuse of steadily-taxed private property until the judicial process intervenes. It is time to say, indeed, that a municipality may not use privately-owned lands for any public purpose, however necessary and laudable that purpose may be, without having taken and paid as in article 13 of our Constitution (1908) provided.
It is true that some members of this Court, the writer included, have accorded an unusually wide range of discretion to municipal authorities in the zoning of property within the municipal confines (Brae Burn, Inc., v. City of Bloomfield Hills, 350 Mich 425), yet our majority has never failed to guard, as it should, property owners from such arbitrary local legislation as would gratuitously devote their land to exclusive or near-exclusive municipal purposes (compare the respective opinions of White v. Township of Southfield, 347 Mich 548, 552, 558). This is such, a ease, as the chancellor found. It is guided to proper conclusion by the general principles which were applied in Spanich, supra. This means affirmance so far as the writer is concerned, but on suggested condition. I turn now to the latter.'
An over-concentration of trailer coach living undoubtedly creates problems of municipal concern such as the superintendent has described. The appealing need for solutional aid stares at us from the appendix, yet the usual extremes of affirmance or reversal appear as marking all limits of the judicial function. But do they? Looking upward and outward at the great horizons of equity, and recalling that the shape of decretal relief should as a rule be formed by the chancellor according to germane conditions and equities as same may be shown to exist at the time of final decree (Herpolsheimer v. Herpolsheimer Company, 344 Mich 657; Carlson v. Williams, 348 Mich 165), it would seem that there need be no inexorable choice, now at least, between plaintiff’s prayer for specific relief and defendants’ too-restrictive ordinance. Why cannot plaintiff and the defendant city consider, together, some possibly midsatisfactory use such as light manufacturing, or retailing, or neighborhood-acceptable commercial endeavor? Why must the permitted use be a this-or-that showdown between temporary life in mobile coaches — or nothing? Does not equity have a duty here, the public interest being at prominent stake ? Why not give the parties a chance to answer these questions, in the court below, prior to entry of final decree?
I would remand by special order (see Court Rule No 72, § 1 [1945]) authorizing the city to present, for judicial consideration below if it will, an amendatory ordinance which in so many words relieves plaintiff’s tract from the present R-l designation and provides some less restrictive designation conforming — as the city may be advised — with the require ments of constitutional reasonableness; sucb amendatory ordinance to be adopted and submitted to the successor chancellor within 60 days from the date of such order. The order should provide that, if the city elects not to amend and submit as authorized, due report of that fact shall thereupon be made to this Court by the successor chancellor, whereupon our decree of affirmance will enter. It should also provide, for the event of amendment and submission so authorized, that further disagreement of the parties, if any, should be reported by the chancellor to this Court with accompanying certified record of such additional proceedings as may be ordered and supervised by him.
Smith, J. (for reversal). Once again we are called upon to rule whether a certain parcel of land would be better zoned as residential or as a trailer park.
The plaintiff (sometimes hereafter referred to as the developer) knowing of the residential restrictions, purchased the land on speculation that the zoning could be changed. Unsuccessful in this before the legislative body of the city it moves its petition for legislative relief into the courts.
The usual arguments pro and con are made. On behalf of the developer, seeking to avoid the zoning, it is urged that a trailer park is the best use of the property, that it is unsuitable for private residences, and hence will remain “dead land,” that it would be difficult, if not impossible, to finance homes here, but that even if it could be used for homes it is much more valuable if used as a trailer park. On behalf of the city it is argued that the best use is not necessarily the most lucrative use, that the property is suitable for residential construction, that it is marketable for such purpose, and that financing is available. The planning director for the city of Warren testified that the use of the property as a trailer park would create a problem of excess population density, which would result, in turn, in traffic problems, in sewage problems, and in deterioration of health standards. The superintendent of schools testified that an additional trailer park in the area would cause still more overcrowding of schools already crowded and would interfere with plans to remedy the overcrowding. He also pointed out that this school district already contained approximately 1/3 of all of the trailer parks in the entire county and that further development of trailer parks in the area would be highly undesirable.
The developer summarizes the whole problem in these words: “Wouldn’t it be better to have high class mobile houses on this parcel than to have cheap substandard homes which would be the only kind that would be practical for this area assuming that even they would be practical?”
We don’t know whether it would be better or not. The developer obviously thinks it would. The city (not conceding the “cheap substandard” part) obviously thinks it would not. Each can assign reasons in support of its own point of view. Back and forth the debate has raged, comprehending schools, sewers, densities of population, and all the other factors that must be weighed in reaching decision.
But these are, simply put, no more than problems of municipal government in a rapidly expanding area. It is clear from the foregoing that there is room for an honest difference of opinion here between those who would use land for one purpose and those who would use it for another. We gather from the record that this is not the most desirable residential property. But in any zoning-plan the line between areas must be drawn somewhere and we are not the body to move it here or there if there is a debatable question as to where it should run. What is involved here, basically, are the merits of the zoning plan itself. As to such we wrote as follows in Brae Burn, Inc., v. City of Bloomfield Hills, 350 Mich 425, 430, 431, 433:
“We are brought, then, to the merits of the zoning scheme itself. In view of the frequency with which zoning cases are now appearing before this Court, we deem it expedient to point out again, in terms not susceptible of misconstruction, a fundamental principle: this Court does not sit as a superzoning commission. Our laws have wisely committed to the people of a community themselves the determination of their municipal destiny, the degree to which the industrial may have precedence over the residential, and the areas carved out of each to be devoted to commercial pursuits. With the wisdom or lack of wisdom of the determination we are not concerned. The people of the community, through their appropriate legislative body, and not the courts, govern its growth and its life. Let us state the proposition as clearly as may be. It is not our function to approve the ordinance before us as to wisdom or desirability. For alleged abuses involving such factors the remedy is the ballot box, not the courts. We do not substitute our judgment for that of the legislative body charged with the duty and responsibility in the premises. * * *
“The question always remains: As to this property, in this city, under this particular plan (wise or unwise though it may be), can it fairly be said there is not even a debatable question? If there is, we will not disturb.”
Is the best use of this 17-acre parcel a trailer park or a permanent home area? We will let the Dequindre Development Company, plaintiff herein, supply the answer. It tells us, in its brief, that “The question as to whether the property is suitable for single residences is largely a question of opinion.”
So it is, and that is precisely why we should not substitute our judgment for the judgment of the legislative body of the city. We do not interfere unless there is a clear showing of unconstitutionality. If there is a debatable question, there is no room for judicial intervention. The question is not whether the city’s determination is wise or unwise. Unwise it may be (though of this we are not convinced) but wisdom according to our lights is not a criterion for the constitutionality of its determination.
But the trial chancellor added that there was fraud on the part of the city in denying the change in zoning: “That Ordinance No 76 [establishing a zoning classification, R-4, for trailer parks] is a fa§ade behind which defendant conceals a purpose to prohibit trailer parks unlawfully, while pretending to countenance their use under lawful conditions,” he held, “is indicated by the fact that even though such ordinance has permitted R-4 zoning classification since September, 1955, a period of nearly 3 years, there is no instance in which either the township board or the city council has approved a rezoning to R-4.”
Is this 3-year lapse (if it existed) bad? Should the city have approved rezoning in some prior instance to R-4? In what petitions? Why were these denied? A vacant lot opposite these chambers has not had a trailer park on it for 10 times 3 years. Does this suggest fraud?
The plaintiff, however, relies on no such unsupportable theory. Here is the plaintiff’s argument on fraud, as found in its brief, in its entirety:
“Are appellants guilty of bad faith or obstructionism, arbitrary, capricious, or improper action in denying to appellee the rezoning of its 17-acre tract for use as a trailer park?
“The planning commission recommended the rezoning of this parcel on October 17, 1955. It was not until May 29, 1956, that the appellants’ township board acted upon this petition. The stalling of this matter for 7 months and the statement by Mayor Miller that ‘I do not care whether any action is done on this for two years and a half’ shows conclusively that the court correctly answered this question ‘yes.’ ”
This is skimpy soil for the roots of fraud. We note that the 3-year period of the trial chancellor has now been shrunk by the development company in its own brief to 7 months, and that the city’s brief would reduce it even more, in fact, down to 2-1/2 months. Before, however, we can say that even a 7-month delay is so excessive as to justify the strictures visited upon it we should know much more than this record discloses as to the reasons therefor. Is 7 months excessive? Why? What is the average time for passing upon such applications? Is there, in fact, any average time? Or does the time required depend upon the particular circumstances?
Finally, appellee bases its charge of bad faith upon the ground that Mr. Miller, mayor of the city of Warren, stated that “I don’t care whether any action is done on this for two years and a half.” The city tells us that Mr. Miller’s words were by way of contrast to the two months and a half only, that the application had, it asserts, been pending, that he “was already beset with 8 trailer parks within his township, all operating as nonconforming uses,” and that he had been subjected to “constant badgering” with respect to this one. It would be better, all might agree, if he had kept his temper despite such circumstances, but I see no more here than irritation, not fraud.
Such are the issues we are bound to get into when we abandon the judicial role and take on the habili ments of a superzoning commission. Is the parcel better used for parking or for building? For trailers or for homes? Should the line be here or there? As long as these questions are debatable they are not for us. Our cities must be allowed to chart their own futures without hindrance by us unless there is constitutional impairment, and such I cannot find where the use of land is merely, to employ plaintiff’s words, a matter of opinion. We have neither the wisdom nor the constitutional right to usurp the legislative function. I am constrained to observe that we should be slow to equate a public official’s sharp retort to fraud, lest we impeach the whole process of government, legislative, executive, and even, some may add, judicial.
The decree should be reversed. No costs, a public question.
Edwards and Souris, JJ., concurred with Smith, J.
The area of this park is an approximate 5 aeres. About 200 dn-use trailer eoach homes occupy such area.
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Per Curiam.
The defendant was convicted by a jury of uttering and publishing a forged instrument. MCLA § 750.249 (Stat Ann 1962 Rev § 28.446). He was sentenced to a term of 5 to 14 years in prison.
After examining the record, it is manifest that the question which the defendant seeks to have reviewed is so unsubstantial as to need no argument or formal submission.
Affirmed. | [
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Per Curiam.
Plaintiff, Ward Wilcox, Jr., was injured when an automobile he was driving collided at an intersection with an automobile being driven by the defendant, Ted R. Hill. The intersection was controlled in one direction by a red flashing light and by a yellow flashing light in the other. Plaintiff faced the yellow light and the defendant the red. The defendant did not stop at the intersection in obedience to the flashing red light. The judge instructed the jury that the defendant had been negligent as a matter of law, but left to the jury the question whether the plaintiff was guilty of contributory negligence. The jury’s verdict was no cause of action and the plaintiff appeals.
Recently in Berk v. Blaha (1971), 384 Mich 580, the Michigan Supreme Court considered the responsibility of a driver approaching a yellow flasher. In that case the question was whether there was sufficient evidence that the defendant driver, who faced the yellow flasher, had failed to “proceed through the intersection or pass such signal only with caution” as required by statute. MCLA § 257-.614 (Stat Ann 1968 Rev § 9.2314). In the present case the question was whether the plaintiff driver was contributorily negligent in failing to exercise the required caution.
In Berk v. Blaha, the Supreme Court ruled that the plaintiffs Berk, who were passengers in the automobile that ran the red light, had failed to sustain their burden of showing that the defendant driver of the vehicle facing the yellow flasher could, through the exercise of care and caution, have seen the vehicle in which plaintiffs were passengers in time to avoid an accident. The Supreme Court emphasized that the plaintiffs Berk had relied solely on the testimony of Blaha, the defendant driver, and there was “no testimony whatsoever as to speed of plaintiffs’ vehicle. It could have been traveling 90 miles per hour or 30. The trial court correctly pointed out, ‘there are all kinds of possibilities, but there is nothing in the record.’ ”
In the case at bar, however, there was testimony that both drivers claimed they were traveling at only 25 miles per hour. The defendant said that he observed the plaintiff’s vehicle at a time when both vehicles were 100 feet from the intersection. Plaintiff testified that he was not aware of the defendant’s vehicle until he heard the screech of defendant’s brakes by which time both vehicles were already in the intersection.
Viewing the testimony in the light most favorable to the defendant, the jury could have properly found that the plaintiff could have seen the defendant’s vehicle while both vehicles were still approximately 100 feet from the intersection but, nevertheless, the plaintiff did not see the defendant’s vehicle until they were both in the intersection and that plaintiff’s attention was finally drawn to the defendant’s vehicle, not by the exercise of ordinary diligence, let alone the caution required of one approaching an intersection controlled by a yellow flasher, but rather only by the screech of defendant’s brakes, and could have concluded on the basis of such findings that the plaintiff’s conduct did not conform to the standard of care required by the statute and, accordingly, constituted contributory negligence.
An automobile proceeding at 25 miles per hour travels 37 feet per second. According to a table in common use, allowing time for perception, reaction, and stopping, an automobile proceeding at that rate of speed can be stopped in 91 feet. The jury conld, therefore, properly find that plaintiff’s contributory negligence was a cause of the accident.
We do not read Berk v. Blaha as holding that a driver facing a yellow flasher does not have an affirmative duty to exercise caution until he in fact observes a vehicle approaching on an intersecting road at such a rate of speed that it could not be stopped before entering the intersection.
Affirmed. Costs to defendant.
Uniform Table of Driver Stopping Distances, Including Perception-Reaction Distance, reprinted as Document No. 176, p 456, Am Jur 2d Desk Book. | [
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J. H. Gillis, P. J.
We have before us once again a zoning matter, this time dealing with the proposed construction of a trailer park on a specified parcel of land in the City of Woodhaven.
Woodhaven was incorporated in 1965. It annexed the property involved herein on June 1,1967, and by virtue of zoning ordinance #20, enacted November 1, 1967, restricted the subject property to single family residential uses (R-2).
Plaintiff Bristow owns and presently farms 40 acres lying just inside the southwest boundary line of the City of Woodhaven. Plaintiff Deziel has a purchase agreement interest in the property, and, if permitted to do so, intends to construct a mobile home park thereon. Woodhaven denied plaintiffs’ request for an amendment to the ordinance, which would allow the proposed use. This litigation fol lowed praying for injunctive relief and relief in the nature of mandamus. The complaint alleged that the restrictions imposed on the land by the zoning ordinance and the particular provisions of the ordinance limiting the size of trailer parks to 75 sites bear no relationship to health, safety, morals or general welfare of the community. Defendant city offered no contest to plaintiffs’ challenge regarding the 75-site limitation contained in the ordinance, but rather relied upon the validity of the restriction to residential use.
The trial court, after having heard testimony and having viewed the premises, rendered its opinion that the ordinance imposes invalid restrictions on plaintiffs’ property and that the 75-site limitation is abritrary, unreasonable, and unconstitutional. As to the subject property, the defendant city was enjoined from enforcement of the ordinance and ordered to issue all necessary permits to allow construction of a mobile home park on the premises. Defendant has taken this appeal.
Defendant vigorously argues that the ordinance is presumed valid, that the burden is on the plaintiffs to show the lack of any relationship between the restriction and public health, safety, or general welfare, and that plaintiffs introduced no competent evidence to sustain this burden.
We look again to the language of Brae Burn Inc. v. City of Bloomfield Hills (1957), 350 Mich 425, 432, where Justice Smith, writing for the majority, stated that normally a zoning ordinance:
“comes to us clothed with every presumption of validity, Hammond v. B. H. Building Inspector [1951], 331 Mich 551, and it is the'burden of the party attacking to prove affirmatively that the ordinance is an abitrary and unreasonable restriction upon the owner’s use of his property. Janesick v. City of Detroit [1953], 337 Mich 549. This is not to say, of course, that a local body may with impunity abrogate constitutional restraints.” (Emphasis supplied.)
A review of existing precedents should serve as a guide to the trial courts of our state that, where it is shown that local zoning exists at odds with the general public welfare rather than in furtherance of it, there can be no presumed validity attaching to that portion of an ordinance which conflicts with public interest. Certain uses of land have come to be recognized as bearing a real, substantial, and beneficial relationship to the public health, safety, and welfare so as to be afforded a preferred or favored status. To restrict such uses appears to conflict with the concept of presumed validity of an ordinance prohibiting such an otherwise legitimate use. It has been observed that:
“When courts approach the problem of a municipality attempting to exclude a so-called preferred institution, a strange chemistry seems to take place. The process is a shifting of the burden from the owner-challenger to the municipality to show the reasonableness of the ordinance. Although it is generally accepted that courts will not interfere with the legislative process when there is a debatable question concerning reasonableness, this premise appears to undergo a transformation when local interests come into conflict with those of the external public. In reacting to these conflicts, when preferred institutions are involved, courts have been moved by various considerations of policy vis-a-vis the particular use in question. Courts have eradicated the presumption of validity, shifted the burden of going forward onto the municipality, or even shifted the burden of proof of reasonableness to the zoning municipality.”
Therefore, in such limited situations, the proponent of a preferred or protected but prohibited use may establish a prima facie case thereby casting upon the municipality the burden of going forward to justify its prohibition of a use heretofore recognized as beneficial to the public welfare. Such a position is not new. In Village of Euclid v. Ambler Realty Company (1926), 272 US 365, 390 ( 47 S Ct 114, 119; 71 L Ed 303, 311), the United States Supreme Court, after upholding the validity of a local zoning ordinance, cautioned:
“It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.”
A review of the cases indicates that certain uses have come to be recognized as advancing the general public interest; such recognition is found in our State Constitution, statutes, judicial precedents, or a combination of these factors. An ordinance which is patently unconstitutional has never been afforded the benefit of presumed validity. See Roman Catholic Archbishop of Detroit v. Village of Orchard Lake (1952), 333 Mich 389. Absent such patent constitutional infirmity, however, where a proposed use has acquired a “favored” status and is appropriate for a given site, the presumed validity of a restrictive local ordinance fades and the burden shifts to the municipality to justify its exclusion.
In Archbishop, supra, a local ordinance operated to exclude from a community all churches and schools in complete contradiction to the Michigan Constitution’s favoring and encouraging “religion, morality and knowledge.” The Supreme Court pronounced:
“Hardly compatible is this [constitutional recognition] with a presumption that exclusion of schools and churches from an entire community is conducive to public health, safety, morals or the general welfare, a presumption which we decline to indulge. A thesis so inconsistent with the spirit and genius of our free institutions and system of government and the traditions of the-American people will not be accepted by way of presumption, nor at all in the absence of competent evidence establishing a real and substantial relationship between the attempted exclusion and public health, safety, morals or the general welfare and, hence, the reasonableness and validity of the restriction upon the use of private property as a legitimate exercise of the State’s police powers.” Archbishop v. Orchard Lake, supra, 394.
Thus, total prohibition by a local zoning ordinance of a “constitutionally”-recognized use will amount to establishment of a prima facie case placing a heavy burden on the municipality to justify the local legislation.
Judicial precedent has also served to define additional land uses of such a favored nature that, where these uses are involved, it is now the municipality’s burden to present competent evidence to support exclusionary ordinances. In Sisters of Bon Secours Hospital v. City of Grosse Pointe (1967), 8 Mich App 342, 351, we held that a “hospital is directly and critically connected to the promotion of public health”, and agreed with the trial court that:
“ ‘not only is there no relation to the public health, safety, morals or general welfare of this community served by the passage of the ordinance in question hut that in effect the enforcement of this ordinance might have a serious effect on the public health of the defendant city and its neighboring communities.’” (Emphasis supplied.)
It has thus been established that the objects of the police powers are not presumed to he served by the exclusion of uses such as a hospital. As to a hospital it is no longer a petitioner’s burden to show that no relationship between the exclusion and the police powers exists; rather it is for the municipality to he convinced of the public benefit to he derived from excluding that which is deemed prima facie beneficial.
With differing rationale, similar results have been obtained in the area of natural resources. In Certain-Teed Products Corporation v. Paris Township (1958), 351 Mich 434, 464, 465, Justice Edwards, writing to affirm, stated:
“The public policy of the State is calculated to encourage both manufacturing and mining. [Citing statutes.]
In the administration of our zoning laws, while we seek to protect our homes, we must likewise take into account the public in the encouragement of full employment and vigorous industry.” (Emphasis supplied.)
The Court recognized that as to certain industries the general public welfare overrules local interests and thus:
“To sustain the ordinance in such a case there must be some dire need which if denied the ordained protection will result in very serious consequences.” Certain-Teed Products v. Paris Township, supra, 467. (Justice Black writing for affirmance in part.)
This protection of natural resources was not unknown to the bench for in City of North Muskegon v. Miller (1929), 249 Mich 52, 57, we find it said that:
“The Courts have particularly stressed the importance of not destroying or withholding the right to secure oil, gravel, or mineral from one’s property through zoning ordinances, unless some very serious consequences will follow therefrom.”
We find in the above opinions an interest in and consideration for the public at large, encompassing citizens of the entire state as well as residents of a local community. Thus, in Sisters of Bon Secours Hospital v. Grosse Pointe, supra, the trial court correctly referred to the “general welfare of this community” (City of Grosse Pointe) but was properly cognizant of the public health of “neighboring communities”. The public policy of the entire State was the Court’s concern in Certain-Teed Products v. Paris Township, supra, and it was this “public” whose interests were to be protected and furthered.
This interest in and concern for the greater public has, in specific areas, found expression in state legislation — legislation which is not merely for licensing or regulatory purposes but which purports to pronounce a policy tending to promote and encourage the good and well being of the general public. Such policies can no longer be easily thwarted by the more narrow interests of a local community. See e.g. Detroit Edison Company v. City of Wixom (1969), 382 Mich 673.
Legislative enactments geared toward a betterment of the general welfare will, in the appropriate factual setting, give rise to a legally protected land use, thereby negating the operation of the presumption of validity which normally surrounds local legislative restrictions.
Additionally, there are land uses which by virtue of a combination of factors find themselves in a kind of preferred or favored status. Statutory enactments standing alone do not always constitute the type of recognition supporting a preferred status, but such may, when coupled with judicial precedent, arrive at the same end. Licensing and regulatory statutes serve to recognize a particular use as legitimate. Total exclusion brands a use as a nuisance and is then inconsistent in the face of a statutory recognition. The Supreme Court recognized this in Smith v. Plymouth Township Building Inspector (1956), 346 Mich 57, where it was stated that:
“Since trailer camps are not, as a matter of law, nuisances per se or detrimental to public health, safety, morals or general welfare, it could not be said that their prohibition in Plymouth township bears a real and substantial relationship to the promotion of public health, safety, morals or general welfare.” Smith v. Plymouth Township Building Inspector, supra, 61.
In Gust v. Township of Canton (1955), 342 Mich 436, 439, the Court held that total exdusion of mobile home parks would be:
“Tantamount to declaring trailer camps detrimental to the public health, safety, morals or general welfare under every condition and circumstance and on that account subject to exclusion from every area in the state by local governing bodies. That would hardly square with the legislative intent expressed in the above act authorizing this operation in Michigan.” (See MCLA § 125.751 [Stat Ann 1961 Rev § 5.278].)
The Court pronounced, p 438, that the:
“Presumption of the existence of such relationship [to public health, safety, morals, or the general welfare] and hence, of the validity of the ordinance is resorted to in the absence of proof on the subject, but not when there are proofs upon which a judicial determination thereof may be made, as when the contrary is shown by competent evidence or appears on the face of the enactment. (Emphasis supplied.)
See in accord: Knibbe v. City of Warren (1961), 363 Mich 283.
Since mobile home parks have, by virtue of state statute coupled, with judicial precedent, been afforded a protected status, there is no longer a presumption of validity of an ordinance which operates toward their exclusion. Such protection of this particular land use is of increased importance in view of the massive nationwide housing shortage which necessitates a re-defining of the term “general welfare” as applied to justify residential zoning. That term is not a mere catchword to permit the translation of narrow desires into ordinances which discriminate against or operate to exclude certain residential uses deemed beneficial. Citizens of the general community have a right to decently placed, suitable housing within their means and such right must be a consideration in assessing the reasonableness of local zoning prescribing residential requirements or prohibitions. Such zoning may never stand where its primary purpose is shown to operate for the exclusion of a certain element of residential dwellers. As with other recognized uses, so too with, certain residential uses, it becomes incumbent upon the municipality to establish or substantiate the existence of a relationship between the exclusion of this legitimate use and public health, safety, morals, or general welfare.
As we have attempted to demonstrate by a recitation of the above cited decisions, the strictly local interests of a municipality must yield if such conflict with the overall state interests of the public at large. This is not meant to be a complete limitation on zoning powers but rather, where certain uses are concerned, a balancing must be reached between the effect of local considerations, concerns and desires against the greater public interest. In Nectow v. City of Cambridge (1928), 277 US 183, 188 (48 S Ct 447, 448; 72 L Ed 842, 844) the United States Supreme Court reminded us that :
“The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.”
This by no means implies that a municipality cannot regulate certain uses or in some instances totally exclude them. It merely means that, in order for restrictions against a particular favored use to be upheld, the municipality must demonstrate that the needs of the public health, safety, convenience, morals, or general welfare of the local community-far outweigh those of the greater community.
Where favored uses are concerned it is for the trial courts to assess, upon presentation of all proofs, whether local zoning serves to promote or inhibit the public health, safety, morals, or general welfare. In reaching a balance, general policy considerations must be ascertained before determining whether local enactments adversely affect a wider interest. If such is affected, it remains necessary to weigh those interests against local concerns prior to any judicial denunciation of an ordinance restricting a favored use.
“The assessment must proceed from an articulated basis of what is at stake in the particular case and a realistic view of the harm which will actually befall the community if its ordinance is thwarted.”
Once a use is shown to be prima facie related to the public health, safety, or general welfare, the task of justifying local restrictions or prohibitions is not and should not be viewed as an impossible one for the municipality. The lack of need for the proposed use or the overabundance of similar, existing uses are matters for consideration. Where a particular parcel is involved, a showing of predesignated and available-sites better suited could bear on the reasonableness of restrictions as to given property. Such a showing would, however, seriously depend on the existence of a carefully prepared, well-reasoned, properly adopted, and flexible master plan which would carry special weight only where noticeably implemented. In this regard, particular care should be taken that an unwanted and yet necessary use is not being “pushed off” onto a neighboring community where it may be equally unwanted. Each factor must be considered in its proper perspective. Traffic patterns are valid local interests of greater concern than aesthetics or economic uniformity. The combinations of factors are unlimited and each case must finally be decided on its peculiar factual setting. Yet, as we have attempted to demonstrate here, Courts are not without guidelines in evaluating a given case.
Returning to the matter before us, we are here faced with a zoning ordinance which the trial court found excluded mobile home parks from the community. As shown above, such a land use has come to be afforded a preferred status; thus, the municipality was required to justify its exclusion and was properly provided an opportunity to do so. (Compare Shacket v. Township of Highland [1969], 15 Mich App 543). Defendant municipality introduced scant testimony of land values along with expert opinions regarding the feasibility of utiliz ing the property for single-family residences as zoned. Such minimal evidence was properly rejected by the trial court as insufficient justification for exclusion of a favored use.
The trial court in this matter correctly determined that the zoning ordinance of the City of Woodhaven is invalid as applied to plaintiffs’ property. As defendant city offered no contest to plaintiffs’ challenge of the 75-site limitation found in the ordinance and in view of the testimony introduced, we agree with the trial court’s determination that such limitation is arbitrary, without reason and, therefore, invalid.
In view of the nature of the proposed use involved here and the failure of defendant’s proofs to justify its exclusion of that use, we hold that the trial court correctly applied existing law and the judgment is, therefore, affirmed.
No costs, a public question being involved.
All concurred.
Art 4, § 4.1 of the Woodhaven Zoning Ordinance # 20 reads:
“In a one-family residential district (R-l through R-2) no building or land shall be used and no building shall be erected except for one or more of the following specified uses, unless otherwise provided in this Ordinance:
“(a) One-family detached dwellings.
“(b) Farms.
“(e) Publicly owned and operated libraries, parks, parkways, and recreational facilities.
“(d) Municipal buildings and uses.
“(e) Public, parochial and other private elementary, intermediate, and/or high schools offering courses in general education and not operated for profit.
“(f) Accessory buildings and uses, customarily incident to any of the above permitted uses.”
Art 15, § 15.17(e) of the Ordinance reads:
“Trailer courts may be permitted in B-3 General Business Districts by the Board of Appeals, after having received the recommendation of the Planning Commission and after it finds the use as not being contrary to the spirit and purpose of this Ordinance, and subject further to the following requirements and conditions:
“(1) The land parcel being proposed for trailer courts shall be of such land area as to provide for a minimum of at least fifty (50) trailer coach sites and shall not exceed a maximum of seventy-five (75) trailer coach sites.”
Eeiler, “Metropolitanization and Land Use Paroehialism-Toward a Judicial Attitude”, 69 Mich L R 655, 689 (1971).
Const 1908, art 11, § 1.
Thus, in Clark v. Lyon Township Clerk (1957), 348 Mich 173, 176, the Court found itself
“referred to no fact or circumstance on which it may be said that public health, safety, morals or general welfare in the mentioned area will be affected, adversely or otherwise, by installation under statutory permit of that which is authorized by the act as amended [citing the trailer park licensing and regulatory statute].”
So too in Dequindre Development Co. v. Charter Township of Warren (1960), 359 Mich 634, the Court decreed that “such mode of life cannot be outlawed by local act”; as plaintiffs had “fairly established the essential drawbar of its case” by its presentation of the factual setting, the burden was the municipality’s to justify an exclusionary ordinance.
As was succinctly stated in Edwards v. City of Montrose (1969), 18 Mich App 569, 574:
“It was incumbent upon defendant to at least show some facts from which a relationship between the zoning of the property and the proper exercise of the police power could be inferred. Defendant failed to show such facts.”
The Illinois Court of Appeals has also recognized that where certain land uses are concerned the term “general welfare” must be defined to meet the exigencies caused by urbanized society. In Lakeland Bluffs, Inc. v. County of Will (1969), 114 Ill App 2d 267, 279 (252 NE2d 765, 770), it was stated “this [need for lower-cost housing] was an element which should be considered in determining the reasonableness of restrictive zoning ordinances”.
The Pennsylvania court, in National Land and Investment Company v. Easttown Township Board of Adjustment (1965), 419 Pa 504, 532, 533 (215 A2d 597, 612) recognized that:
“The question posed is whether the township can stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live. We have concluded not. A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic or otherwise, upon the administration of public services and facilities can not be held valid. * * * It is clear, however, that the general welfare is not fostered or promoted by a zoning ordinance designed to be exclusive and exclusionary.”
In the Girsh Appeal (1970), 437 Pa 237, 243, 245 (263 A2d 395, 398, 399) that court added:
“ ‘Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not and can not be used by those officials as in instrument by which they may shirk their responsibilities.’ * * * The simple fact that someone is anxious to build apartments is strong indication that the location of this township is such that people are desirous of moving in, and we do not believe [the township] can close its doors to those people.”
In June v. City of Lincoln Park (1960), 361 Mich 95, the municipality successfully justified its zoning restrictions and the Supreme Court commented that “Gust does not mean that there are no circumstances under which such a bar would be valid.” See also Rottman v. Township of Waterford (1968), 13 Mich App 271; City of Howell v. Kaal (1954), 341 Mich 585.
Feiler, “Metropolitanization and Land Use Parochialism”, fn 3 supra, at pp 705, 706.
The trial court found that:
“The practical effect of this zoning approach is to exclude all trailer parks from the city because the amount of land zoned B-3 is small in area and already substantially developed for commercial uses which serves to increase the vacant land price to a point where mobile home parks are not an economic alternative to other commercial uses. Of course the location of a mobile home park in ¿ commercially zoned district also makes the park itself less attractive as a residence and discourages potential developers to that extent.
“Nonetheless the zoning ordinance is structured in such a fashion that no mobile home parks, which are clearly residential in character, are allowed in any residential zone. On the contrary, mobile home parks are allowed only in a small commercial zone, described as a General Business District and then only with specific Board of Appeals approval. The zoning plan obviously discriminates against any mobile home park as residential use of land in the City of Woodhaven. With this kind of ordinance in effect, the city cannot rely on the presumption that its ordinance is valid and reasonable when its terms clearly discriminate against certain lawful residential uses. The court observes that the zoning classification here does not preserve the status quo or rely on physical characteristics of the property involved. Bather by legislative pronouncement without any justification the zoning ordinance declares that most of the vacant, presently agricultural land, in this part of the City of Woodhaven shall henceforth be developed as a single-family residential zone.
“This court is satisfied that the plaintiffs have demonstrated that the development of the Bristow property as a mobile home park is a lawful residential use of the property. As a lawful use, regulated by state statutes, such development can only be viewed as inoffensive and not detrimental to public health, safety, morals or the general welfare. This is particularly so here where the property is located in a largely vacant and undeveloped area devoted primarily to agricultural uses. The city has not suggested any significant rationale for its prohibition of this lawful use of the property which is not based on speculation as to future development. No showing of any kind has been made which suggests that the present state of the property would be or the area in any way harmed by the construction of a mobile home park. As a result the zoning classification of the Bristow property is unreasonable and must fall.
“In summary, if plaintiffs have shown that the use they intend for the property is not offensive or detrimental to the public health, safety, morals or general welfare, and the city nonetheless prohibits this use, then they have adequately demonstrated that the zoning classification prohibition of their use is unreasonable and constitutionally defective. Plaintiffs have met this burden.
“This court holds that the development of the Bristow property hereinbefore described, as a mobile home park is a lawful, reasonable use which is not offensive or detrimental to the public health, safety, morals or general welfare of the City of Woodhaven. This conclusion is supported by a careful review of the nature of the property, its present use and condition, and the condition and use of the surrounding property. The zoning ordinance of the City or Woodhaven is held to be void, invalid and of no legal force and effect to the extent it prohibits a mobile home park use for the Bristow property. In addition § 15.17(e) of the Woodhaven Zoning Ordinance wliieh attempts to limit any mobile home park to 75 sites is found to be wholly unreasonable and arbitrary and consequently void and of no legal effect.”
Plaintiffs demonstrated that the subject 40 acres is utilized for agricultural purposes surrounded on three sides by farmland which is largely uninhabited. At the southern border lies an Edison corridor, 500 feet in width, in which exceedingly large steel towers supporting high-voltage power lines have been erected. Beyond the corridor, approximately 30 acres of land harbor a complex of oil storage tanks; still farther is an extensive railroad switchyard containing numerous tracks, substantial activity and, it was stated, excessive noise. | [
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] |
Y. J. Brennan, P. J.
Prom a dismissal of plaintiff’s suit to recover damages for breach of a non-competition agreement and from a denial of a motion for new trial, plaintiff appeals.
The principal defendant in this suit, Joseph Evans, owned the Evans Tool and Die Co. (“Evans Co.”) along with his wife, Mary, his son, Robert, and his daughter, Dorothy Rankin. In late 1961, Joseph Evans became desirous of getting his money out of the business and retiring. His son Robert, however, wished to continue the business. In order to accomplish both purposes, it was decided that Evans Co. would redeem all of its outstanding stock except that belonging to Robert Evans. In return for his stock, the Evans Co. executed promissory notes to Joseph Evans. As added insurance that the notes would be paid, Joseph Evans insisted that Evans Co. merge with Buckingham Tool Co. (“Buckingham”) which was owned by a longtime friend of the family, Charles Thornell. Mr. Thornell was agreeable to the merger, and he and Robert Evans each became half owners of the Evans-Buckingham Inc. (“Evans-Buckingham”). Evans-Buckingham assumed payment of the promissory notes held by Joseph Evans.
As part of this same series of transactions, Joseph Evans signed a noncompetition agreement on January 2, 1962, which provided:
“Joseph Evans agrees that for a period of five (5) years from date hereof he will not, directly or indirectly, either as a principal, agent, stockholder or in any other capacity, engage in or have a financial interest in any business which is competitive to the business of the Corporation, its. successor or its assignee, located within a radius of one hundred (100) miles from the present location of said corporation * * * .”
In mid-1964, difficulties arose between Thornell and Robert Evans which resulted in the dissolution of Evans-Buckingham. Mr. Thornell bought Robert Evans’ interest and formed the Buckingham Tool Corp., which is the present plaintiff.
Just prior to the dissolution of Evans-Buckingham, Robert Evans placed orders in his own name for boring mill machines. He also requested his father to construct a building for him to lease in which he could set up a tool shop. His father agreed.
In 1965, Robert Evans leased the newly-built shop from his father and began another tool and die business. Joseph Evans signed as a guarantor on the lease of the four boring mills in the new shop and Mary Evans loaned $100,000 to her son to get him started. The employees of the new shop were for the most part former employees of Evans Tool and Die Co. and Evans-Buckingham Inc. They testified that they had left Evans-Buckingham because of their friendship with Joseph Evans and the Evans family although Joseph Evans did not solicit them.
In December of 1967, plaintiff commenced this action on three counts: (1) breach of the noncompetition agreement by Joseph Evans; (2) breach of fiduciary duties by Robert Evans in forming a new corporation and stealing employees and accounts; and (3) a conspiracy of all the named defendants to bring about a breach of the noncompetition agreement. With respect to the second and third counts, the court apparently felt, and we agree, that there had been no evidence presented which would support them. With respect to the first count, the court said that the noncompetition agreement was valid, but that the actions of Joseph Evans did not constitute a breach thereof. At the conclusion of plaintiff’s proofs, the court, on its own motion, granted an involuntary dismissal as to all counts.
When a trial judge considers a motion for an involuntary dismissal after the close of the plaintiff’s proofs, rule 504.2 allows him to dispose of the case on the merits by weighing and determining the facts as well as considering the sufficiency of the evidence as a matter of law. Mutual Benefit Life Ins. Co. v. Abbott (1968), 9 Mich App 547; Bach v. Friden Calculating Machine Co. (CA 6, 1945), 148 F2d 407. Furthermore, the trial court’s determination of the facts will not normally be overturned by this Court unless the evidence clearly preponderates in the other direction. Bradshaw v. Blaine (1965), 1 Mich App 50.
It is well settled that a noncompetition agreement is violated where one sets up a competing business in the name of another as a guise to do business for himself. Up River Ice Co. v. Denler (1897), 114 Mich 296. On the other hand, it is not normally a violation of such agreement to merely lend money, extend credit, or the like to a person about to engage in a competing business. See 93 ALR 121, § 6, p 139. Thus, the lower court was faced with the task of deciding whether the actions of Joseph Evans amounted to engaging in a competing business through his son, or whether they were merely a fatherly attempt to help his son get started in a new business. In deciding that the latter was the case, we cannot say that the court was clearly erroneous. Even though Joseph Evans did rent the shop to his son as well as guarantee the lease of the boring mills therein, the great weight of the evidence indicated that he neither participated in the running of the business nor had a financial interest in it. See C. H. Barrett Co. v. Ainsworth (1909), 156 Mich 351. Furthermore, there was no evidence that Joseph Evans was counseling his son as to business matters. In light of these facts, we do not feel that the evidence presented by the plaintiff justifies the conclusion that Joseph Evans was indirectly competing in the tool and die business.
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed. Costs to appellees.
All concurred.
GOB 1963, 504.2. | [
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] |
Fitzgerald, J.
Defendant, Wesley Brown, was tried before judge and jury on January 13-15, 1970. He was convicted of first-degree murder of a poolroom owner in Battle Creek and sentenced to life imprisonment.
Pertinent facts developed at trial were the following : The victim, M. C. McKnight, was the owner of the McKnight and Lee Pool Room in Battle Creek. In the early evening of October 3, 1969, defendant arrived at the poolroom. Defendant and victim forsook pool for a game of cards. After engaging in the card game for a period of time, the victim and defendant joined other patrons in a game of dice. A dispute then arose between defendant and victim. The two argued for sometime and then both separately left the poolroom. After a short time, both defendant and victim returned, again separately, to the poolroom and the argument resumed again. Witnesses testified that at this point defendant fired three shots from a pistol and the victim slumped to the floor. Defendant then left the premises and walked to the local police station where he turned himself in. After languishing 19 days, the victim died.
Defendant’s first issue on appeal is that the prosecutor made prejudicial remarks during his closing argument that amount to reversible error.
We note that no objection was made at the time of the closing argument to the contested remarks. The lower court gave sufficient instructions to correct any possible harm, though we have also reviewed the record and can find no reversible error.
As we said in People v. Glessner (1969), 19 Mich App 535, 536-537:
“Further, defendant contends that certain remarks made by the prosecutor during the trial and in his' final argument were prejudicial. The record shows that these remarks of the prosecutor were made without any objection by defense counsel, and therefore this alleged ground is also inoperative. People v. Hider (1968), 12 Mich App 526. Having read the record, we are of the opinion that the defendant’s allegations of error, as above mentioned, do not reflect a ‘clear injustice’ which merits review despite the absence of contemporaneous objection. See People v. Ridley (1967), 8 Mich App 549.”
Defendant also contends on appeal that the lower court was in error in denying defendant’s motion to dismiss the charge of first-degree murder because there was no showing of premeditation in the people’s proofs.
In considering a motion to dismiss, the trial court must look at the people’s evidence and determine whether there is any evidence at all, either direct or circumstantial, on each material element of the offense. People v. Garcia (1971), 33 Mich App 598; People v. Abernathy (1931), 253 Mich 583. If there is any evidence at all on each of the elements, the motion to dismiss should be denied and the trial should proceed to conclusion, at which time the fact finder decides whether or not the evidence is sufficient to establish guilt beyond a reasonable doubt.
A review of the transcript shows that at the time the motion to dismiss was made, the evidence indicated, among other things, that 1) the defendant and victim had argued, 2) that defendant left the premises and then returned armed, and 3) the defendant then shot the victim three times. We hold that this evidence is sufficient to defeat a motion to dismiss. Garcia, supra.
Affirmed.
All concurred.
MCLA § 750.316 (Stat Ann 1954 Rev § 28.548). | [
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Per Curiam.
Defendant was found guilty by a jury of breaking and entering an occupied dwelling with intent to commit a larceny. MCLA 1971 Cum Supp § 750.110 (Stat Ann 1971 Cum Supp § 28.305). Complainant, upon returning to his previously locked home, found defendant inside, gave chase to defendant, and apprehended him about a block away. After turning defendant over to the police, complainant returned home again. At this point, complainant observed two unknown men in his backyard who fled when he saw them. Complainant then learned that his shotgun was missing.
The trial court, in its charge to the jury, defined reasonable doubt:
“ ‘A reasonable doubt is ladies and gentlemen, largely just what the words themselves suggest. A reasonable doubt is a doubt for which you can give a reason for entertaining, a doubt growing out of the evidence or lack of evidence in the case; a doubt which would cause you to hesitate in the ordinary affairs of life. Now, it is not a flimsy, fanciful or ficticious [sic] doubt that you could raise about anything or everything, nor is it a doubt based on sympathy, bias or prejudice. It is not that kind of a doubt that excuses the defendant on which you would find him not guilty. It is rather, as I have said before, a doubt for which you can give a reason for entertaining, a doubt growing out of the evidence of lack of evidence in a case, etc.’ ” (Emphasis added.)
After the jury had begun deliberations, the jury requested additional instructions, asking the meaning of reasonable doubt. The court redefined reasonable doubt substantially as noted above. The jury apparently expressed further concern as to the meaning of the term “reasonable doubt”. The court then tried to explain the meaning by way of an example of a reasonable doubt and an unreasonable doubt. After the jury had again retired, defense counsel moved for a mistrial, alleging that the examples were misleading. The motion was denied.
On appeal, defendant asserts that the use of the phrase “a doubt which would cause you to hesitate in the ordinary affairs of life” was erroneous, citing People v. Albers (1904), 137 Mich 678, 690, 691. While the use of such a phrase alone to define reasonable doubt may be prejudicial, the use of the phrase, when read in context with the rest of the definition, did not result in reversible error. See People v. Davis (1912), 171 Mich 241, 248.
Defendant also asserts that the use of the example of an unreasonable doubt was improper and prejudicial. While the use of examples is not to be encouraged, a review of the example given leads us to the conclusion that no prejudice resulted. The example given was very remote from the facts of this ease and the jury was strongly cautioned that the example should not be taken to be a comment by the court on the evidence of the case at hand. People v. Cox (1888), 70 Mich 247, 257.
Defendant further alleges that it was improper for the court to charge as to aiding and abetting. The test of whether such an instruction is proper is whether or not there has been evidence presented which supports such a theory of guilt. See People v. Ware (1968), 12 Mich App 512; People v. Dawson (1971), 32 Mich App 336. The record contains sufficient evidence from which the jury might find that the defendant was working in consort with the unidentified man seen in complainant’s backyard.
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O’Hara, J.
On December 9, 1969, a jury in Ingham County found the defendant guilty of armed robbery, contrary to MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). He was sentenced to life imprisonment. He appeals of right.
Evidence presented at trial indicated that the defendant robbed the Wine Village, a business establishment located in Lansing, Michigan. He entered around 7:30 on the evening of March 4, 1969, holding three persons on the premises at gun point while removing the contents of the cash register. He then left. Apparently on more mature consideration, he decided he had not concluded his self-appointed task. He returned forthwith and forced the manager to open the safe, the contents of which he added to the loot. He then ordered everyone in the store to lie on the floor, fired his pistol at one of them to discourage any imprudent interference, and fled.
He sets forth six assignments of error.
First, he asserts that he was denied his right to an impartial jury because of the allegedly improper manner in which the jury was selected.
Acting pursuant to GrCR. 1963, 511.3, the trial court personally conducted the voir dire. On occasion, the jury did not respond to questions asked. Counsel for the defendant presumably construed the silence as a negative response. In any event, he expressed satisfaction with the jury on the record. Any claimed error was waived. People v. Miron (1971), 31 Mich App 142; People v. Jenkins (1970), 23 Mich App 39.
Next, he attacks the in-court identification by prosecution witnesses as a product of an antecedent lineup which was impermissibly suggestive in that the defendant was the only party present attired in prison clothing.
The record reveals little with regard to the procedure followed at the lineup. Assuming some impropriety, it would not be a ground for reversal. Several witnesses had ample opportunity to observe defendant while the robbery was in progress. Their identification was independent of what had occurred at the lineup. People v. Wilson (1969), 20 Mich App 410; People v. Bratton (1969), 20 Mich App 523. The error, if any, was harmless.
Third, error is alleged in the admission of a black leather coat, taken from an automobile in which defendant was a passenger at the time of his arrest. It is urged that the search and seizure were not incident to a lawful arrest. The error, if any, was not preserved as required. There was ample time to have made the requisite motion to suppress in advance of trial. None was made. The issue may not be raised initially in this Court. People v. Ferguson (1965), 376 Mich 90.
Next, it is claimed that the court violated defendant’s right to remain silent by admitting a “Recognition of Rights” form, offered to him by the police, thereby calling to the jury’s attention that defendant had refused to make a statement when arrested. The purpose for which the people sought to introduce the form is unclear. However, defense counsel affirmatively consented to its admission. Even then the trial judge ruled that it could not be taken to the jury room during deliberations. We perceive no prejudice. Error may not be raised for the first time on appeal, unless to avoid a clear injustice. People v. Schram (1970), 23 Mich App 91. This record reveals no suggestion of injustice.
Defendant next questions the sufficiency of this charge to the jury upon reasonable doubt:
“It has been said that a juror is satisfied beyond a reasonable doubt as to a matter in controversy when, after a full and fair consideration of all the testimony given in the case, he can say that he has an abiding conviction to a moral certainty that the charge made has been established as having been committed by the accused.”
This excerpt from the charge was not over-extensive, but the situation is essentially the same as that in People v. Walsh (1970), 27 Mich App 100, 106. There the Court held:
“A careful review of the trial court’s instructions as a whole convinces us that the instructions were substantially correct and that they were sufficient. We find that the defendant’s assertions of error are non-meritorious. Further, we note that at the conclusion of the charge both prosecution and defense attorneys indicated out of the hearing of the jury, but on the record, that they were satisfied with the charge as given.
“We consider the situation here to be controlled by GCR 1963, 516.2, which provides that:
“ ‘No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.’ ”
“Since defendant made no timely objection or request, he may not now claim error in the instructions. People v. Jefferson (1969), 18 Mich App 9, 13; People v. David Smith (1969), 16 Mich App 198.”
Finally, defendant asserts that he was denied the effective assistance of counsel. We have reviewed the record with care. We conclude that the representation met applicable constitutional standards. See People v. Degraffenreid (1969), 19 Mich App 702; People v. Lawrence, 32 Mich App 780.
Affirmed.
All concurred. | [
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Per Curiam.
Accused of the shotgun slaying of two people the defendant was charged with second-degree murder contrary to MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). Over objection of the prosecutor, he was allowed to plead guilty to the charge of manslaughter contrary to MCLA § 750.321 (Stat Ann 1954 Rev § 28.553), and was sentenced to serve 14 to 15 years imprisonment. This appeal followed with the people moving to affirm.
Defendant first alleges that the trial court committed reversible error because he failed, by direct questioning, to elicit sufficient facts to support the crime and defendant’s participation therein. Specifically, it is alleged that there were insufficient facts to support all elements of the crime charged. We disagree. It is not required that before the court may accept a plea of guilty every element of the offense be directly established but rather, it is required that the court obtain a reasonable ascertainment of the truth of the plea. People v. Bartlett (1969), 17 Mich App 205; People v. Beverly Haywood (1970), 27 Mich App 365. In the ease at bar the crime and defendant’s participation therein was clearly established by defendant’s responses at the plea taking, a preliminary examination, and a lengthy trial transcript from defendant’s previous trial on this charge which had been reversed and remanded by the Michigan Supreme Court for failure to comply with People v. Cole (1969), 382 Mich 695. See 383 Mich 759.
In addition, defendant contends that the trial court committed reversible error in failing to specifically ask him whether he had been promised leniency. However, defendant does not allege that he was in fact promised leniency but only that the trial court failed to interrogate him on this point. Such technical noncompliance with the court rule is not grounds for reversal. People v. Winegar (1968), 380 Mich 719; People v. Newsom (1970), 25 Mich App 371, 375. We have reviewed the record and find that defendant’s plea was freely, understandingly, truthfully, knowingly, and voluntarily made.
The motion to affirm is granted. | [
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Holbrook, J.
In a trial commencing August 4, and completed August 18, 1970, defendant Douglas Rogers, jointly tried with one Mitchell Dunn, was convicted by court verdict of murder in the first degree while in the perpetration of an armed robbery contrary to MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).
The two defendants were tried at the same time, Dunn being tried by the jury and Rogers, at his request, by the court.
The people presented proofs indicating that on on December 7, 1968, defendant, accompanied by another male claimed to be Mitchell Dunn, and an unidentified female, were present at a “birthday party” at the home of Robert Parker at 1050 Jos. Campau in the City of Detroit; and in the course of the evening defendant and his companions effectuated an armed robbery during which Wash Grayson was murdered.
Mr. Jimmie Lee White postively identified defendant Rogers as the one who shot the victim. Mr. Robert Parker, Joyce Whitfield, and Mr. Howard Grayson testified it was defendant Dunn who shot Mr. Grayson. All the witnesses testified defendant Rogers was armed and took part in the robbery.
Mr. Parker testified he had been acquainted with defendant Rogers for some time and knew him as “Doug”, and recognized him the night of December 7, 1968, as one of the three who took part in the armed robbery. Mr. Parker had failed to recognize defendant Dunn in a lineup.
Neither defendant Rogers nor defendant Dunn presented any evidence at their trial. At the end of the trial the trial judge entered his decision in a sealed envelope to be opened upon the jury’s verdict as to defendant Dunn. Upon being advised that the jury had decided upon a verdict, the court ordered the clerk to read the sealed verdict, which stated “I find the defendant Douglas Rogers guilty of murder in the first degree”. Mitchell Dunn was found not guilty by the jury.
The defendant Rogers raises three issues on appeal which we restate and deal with in our order.
I.
Was defendant denied a speedy trial resulting in prejudice to him?
In this case the complaint was filed January 2, 1969, and warrant issued the same date.
The preliminary examination was held January 13, 1969; information was filed January 15, 1969; arraignment on information held May 21, 1969, with defendant and his attorney present; notices of trial were issued September 5, 1969, and December 3, 1969; present counsel filed a praecipe for appearance June 16, 1970; waiver of trial by jury was filed August 4, 1970; and a motion to quash the information was filed August 10, 1970. It appears that defendant Rogers had two charges pending against him, and his codefendant Dunn had four charges pending against him during the interim. Dunn had two trials and had pled guilty to another charge. Defendant was convicted in one other trial and sentenced to prison in May, 1970.
At the hearing of the motion to quash the information based on the denial of a speedy trial the trial court stated:
“The motion to dismiss based upon the claim that these defendants were denied their constitutional right to a speedy trial will be denied. First, because there is no showing that there was a denial in the constitutional sense, and that on the contrary it would appear that the court has been so busy trying to accord trials to these defendants in other cases that that accounts for the delay in reaching the trial in this case. And secondly, because had the defendants desired an earlier trial in this case, they should have requested trial in this particular case. And the court is not aware of any such request having been presented.”
In order to properly preserve his right to a speedy trial, a defendant must make a formal demand on the record that he be brought to trial. People v. Miklovich (1965), 375 Mich 536; People v. Nawrocki (1967), 6 Mich App 46; and People v. Frazier (1969), 16 Mich App 38. The record fails to disclose such a demand. Defendant’s attorney at the motion hearing represented that Rogers had sent letters demanding the early trial of the case; however, no proofs were received as to the accuracy of the allegations. Such a statement with nothing else is insufficient to show a demand on the record.
Defendant asserts that there are four factors to be considered in determining whether denial of a speedy trial assumes constitutional proportions:
(1) The length of the delay, though this alone is not determinative;
(2) Reasons for the delay;
(3) Necessary prejudice to defendant resulting from the delay; and
(4) Defendant’s demand for trial or objections to the delay.
In the instant case there were several cases pending against the defendants Rogers and Dunn. Trial of defendant Dunn in one case required two trials because of a hung jury. Defendant Rogers had three attorneys represent him during the period of delay and at no time was there a request on the record for an early trial in this case. The appellant has failed to show actual prejudice resulting to him except the length of the delay itself. This is insufficient. Smith v. United States (1969), 158 App DC 284 (418 F2d 1120); Carroll v. United States (CA1, 1968), 392 F2d 185; Fouts v. United States (CA6, 1958), 253 F2d 215.
Appellant also refers to the concurring opinion of Mr. Justice Brennan in Dickey v. Florida (1970), 398 US 30 (90 S Ct 1564, 26 L Ed 2d 26). In this concurrence Mr. Justice Brennan indicated that the Court may at some time want to re-evaluate the position it has taken as to whether a defendant must demand an early trial in order to preserve his right to a speedy trial and whether actual prejudice must be shown. Mr. Justice Marshall joined with Mr. Justice Brennan. The majority opinion of the Court still requires a showing of demand and actual prejudice in order to prevail on a claim of constitutional failure to afford a defendant a speedy trial. No error was committed here.
II.
Did the trial court commit reversible error in failing to order separate trials?
On the day of the trial defendant’s counsel stated he had asked the trial judge for a severance. No written motion or request appears in the files. At that late date the trial court in effect denied the request because the trial proceeded as planned. This Court held in the case of People v. Lombardi (1968), 13 Mich App 602, that the grant or denial of a motion for separate trial is discretionary. MCLA § 768.5 (Stat Ann 1954 Rev §28.1028).
Under the facts in the instant case we cannot say that the trial court abused its discretion in denying defendant’s request for a separate trial.
III.
Did the trial court commit reversible error in determining the issue of guilt after ruling on a pretrial motion for dismissal of the action based on the claim of denial of a speedy trial?
Defendant argues that during the pretrial argument on the motion it came to the attention of the court that defendant had two other criminal cases pending during the delay of the instant trial and was given their status. Defendant claims that the trial judge considered these facts in coming to the decision of finding defendant guilty.
Defendant cites three cases which he claims require reversal on this ground. These cases are not applicable herein because:
(1) In People v. Eglar (1969), 19 Mich App 563, the trial judge visited the scene of the crime without the presence of parties and attorneys. The trial judge considered this private view in determining his verdict.
(2) In People v. Harvey (1968), 13 Mich App 211, the trial judge viewed a police report of the arresting officer which had not been received in evidence.
(3) And in People v. Segal (1970), 22 Mich App 26, the trial judge in finding the defendant guilty referred to claimed facts not in the record.
The trial judge in the instant case made no reference to facts not in the record in making his determination. The pretrial inquiry as to pending cases against the defendant was not evidence in the case but came to him for decision on the motion to quash the information. Absent a showing that the trial judge relied on claimed facts outside the record in finding defendant guilty, we are constrained to rule that reversible error has not been shown.
Affirmed.
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Per Curiam.
Plaintiffs sought injunctive relief and damages in the trial court. They alleged that the defendants constructed a series of artificial drainage ditches which reversed the natural flow of water from the south and east to the north and west. They contended defendants’ action diverted large quantities of water to their land, causing flooding and depriving them of the use of the land.
The case was tried before the judge without a jury. The trial judge found that the natural flow of water on the lands in question was to the north and west from defendants’ land to plaintiffs’ land and that the flooded condition of plaintiffs’ land was not due to defendants’ ditching. He therefore dismissed plaintiffs’ complaint.
The trial court correctly stated the law. The owner of lowlands must accept surface water which naturally drains onto his land. Village of Sand Lake v. Allen (1915), 185 Mich 1; O’Connor v. Hogan (1905), 140 Mich 613; and Boyd v. Conklin (1884), 54 Mich 583. The owner of the dominant estate has a right to fill up sag-holes and avoid the accumulation of water in the course of improving his land in good faith even if such water finds its way onto the land of the servient estate; but the owner of the dominant estate has no right to cast additional waters upon the servient estate in such a way as to cause damage. Gregory v. Bush (1887), 64 Mich 37, 42; Village of Sand Lake v. Allen, supra; Bennett v. County of Eaton (1954), 340 Mich 330; and Allen v. Morris Building Company (1960), 360 Mich 214.
On appeal plaintiffs contend that the trial court’s finding that the defendants’ ditching did not cause damage to the plaintiffs was erroneous. Findings of fact of a trial judge will not he reversed unless this Court finds that they are “clearly erroneous”. OCR 1963, 517.1. The trial court in this case viewed the scene of the alleged damage to plaintiffs’ property. In such circumstances his finding is entitled to special weight. Alderton v. City of Saginaw (1962), 367 Mich 28; and Bennett v. County of Eaton (1954), 340 Mich 330. A review of the record convinces us that there is ample evidence in support of the findings of the trial judge.
Affirmed. Costs to defendants. | [
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O’Hara, J.
This is an appeal of right from two jury verdicts of no cause of action. Plaintiff is the personal representative of the estate of his deceased wife. The action was brought under the wrongful death act, MCLA § 600.2922 (Stat Ann 1971 Cum Supp §27A.2922). As to defendant Eickhorst, an M.D., the action is what is commonly called malpractice. As to defendant hospital, it sounds in tort for the negligent performance of those duties owing a patient from a hospital.
The deceased, 26 years old, was a patient of defendant doctor. He did a biopsy of a lump on her breast. It was determined to be malignant. The doctor immediately performed a radical mastectomy. The operation was completed at 4:07 p.m. The decedent was taken directly to an operative recovery room. At 4:45 p.m., the operating surgeon examined her. It is disputed whether he came to the recovery room in response to a call to his home from the attending nurse, or whether he, in fact, came back on his own. In any event, the patient, who according to the record was, prior to the surgery, an otherwise healthy young woman, died at 3:03 a.m. the next morning without regaining consciousness.
On the day of the surgery, the doctor again came to the recovery room about 7:30 p.m. in the company of another physician. Again at about 9 p.m., he was back in the recovery room and left. About an hour later the patient’s blood pressure dropped dramatically. An intern was called, Dr. Eickhorst not being immediately locatable. By 11:20 or so, it became apparent that the patient’s condition was rapidly deteriorating. A resident physician was summoned. As best we can determine from the record, Dr. Eickhorst was located soon thereafter and from midnight on he was with another physician at his patient’s side until her death. A postmortem examination was conducted by a pathologist, who wrote up a report which became part of the hospital records. It was thereafter offered as an exhibit on trial. The judge, while permitting plaintiff’s counsel to cross-examine the authoring pathologist concerning the report, refused to admit it as an exhibit. We set it forth as offered:
“Final Aanatomic Diagnoses
“1. Recent left radical mastectomy with sutured incision for carcinoma of left breast with left axillary lymph node metastasis (McLaren Hospital Surgical Pathology #S-67-5389).
“2. Cerebral edema and early changes of cerebral hypoxia.
“3. Acute pulmonary edema and hyperemia, marked.
“4. Struma lymphomatosa and small follicular adenoma (2 cm.) of thyroid.
“EGM/pc.
“Cause of Death:
“See above anatomic diagnoses.
“E. G. Murphy, M.D.
“Pathologist
* * #
“Microscopic Examination
* # #
“Brain: Sections of the brain show early histologic changes, most notable in the cerebral cortex. Grossly, there was slight to moderate edema and microscopically there would appear to be slightly decreased density of the finely fibrillar background of the cerebral cortex. It is noted that there is slight swelling of cytoplasm of some astrocytes.
# * #
“The early changes noted in the cerebral cortex are consistent with changes due to hypoxia of whatever etiology.
“Comment: Although the histologic alterations present in the cerebral cortex are consistent with early changes due to hypoxia, there is nothing specific present to indicate the etiology of the apparent hypoxic changes. Possibly only a careful review of the clinical events and course of the patient can afford an adequate explanation.
“EGM/pc.
“E. G. Murphy, M.D.
“Pathologist”
Before we discuss the issue of the admissibility of the foregoing, and the effect of the ruling barring its admissibility, we deem it advisable to dispose of certain other issues.
In all, plaintiff specified 16 assignments of error. Some are identical as to both defendants. Some are limited to one or the other. Some do not specify as to which defendant the claimed error applies. We have examined them with extreme care. The fact that we do not write separately as to each one should not suggest that we have not considered them.
We dispose of the assignments of error as to defendant Eickhorst as follows: he is what may be designated as a general surgeon. He does not fall within the category which must be judged by the standard of specialists in specific areas of the practice of medicine. Rather, his liability must be determined on the basis of any deviation from the standard of professional competence, and the exer cise thereof, in his community or communities sufficiently similar thereto to constitute a proper basis for the expression of qualified expert opinion testimony as to that standard. The Supreme Court spoke to this question in Lince v. Monson (1961), 363 Mich 135. In this case, as in Monson, “There was no medical testimony that defendants’ treatment and handling of the case was not in accord with the standard and usual practice of skilled doctors in the community”. (Monson, supra, p 139.)
A number of the claims of error relate to asserted liability of the doctor for acts which were in fact performed by the hospital through its employees. We decline to accept plaintiff’s proffered premise of the doctor’s vicarious liability growing out of a sort of agency concept between the doctor and the hospital.
Plaintiff requested an instruction as to contributory negligence. We do not agree with his contention that he was entitled to the requested instruction “to remove from your deliberations any consideration of any fault, negligence, or contributory negligence on the part of either Milton Abbe or his wife Margaret Abbe * * *
Part of the basis for the instruction as briefed by plaintiff rested upon his apprehension that the jury, and we quote the brief, “might have thought that it was awfully dumb” that neither of them knew the difference between a nurse anesthetist and an anesthesiologist. In support of the request, plaintiff relies on Podvin v. Eickhorst (1964), 373 Mich 175. The reliance is misplaced. In that case two defense counsel, in their opening statements, “referred to plaintiff’s automobile accident in terms which openly invited the jury to find that his (plain tiff’s) injuries were attributable solely to his own fault”. (Podvin, supra, p 181, emphasis supplied.) It seems obvious to us that that case is clearly distinguishable from this case, in which no reference to, or claim of, contributory negligence was made. There was no issue as to contributory negligence in the case at bar.
We also reject the claim that the doctor was negligent in failing to explain the difference between a nurse anesthetist and an anesthesiologist. This claim was unsupported by testimony as to the prevailing practice by which defendant was to be judged.
In sum total, the case against the doctor was ably and vigorously presented. It was likewise ably and vigorously defended. The issues were properly submitted to the jury. We find no basis upon which to disturb that verdict.
We noAv consider the case against the defendant hospital. We find one claim of error to be well-founded and deeisionally pivotal. Earlier herein we set forth the contents of the pathologist’s findings. It contained evidentiary support of plaintiff’s pleaded assertion that death was due to a lack of oxygen. The furnishing of the requisite amount of oxygen was the burden of the hospital. There was competent testimony elicited upon cross-examination that the pathological findings of cerebral edema, hypoxia, hyperemia, and acute pulmonary edema are all causable by a shortage of oxygen and that they could produce death. There was a basis for fair jury inference from the report that all other vital organs were healthy and normal, and ergo that other causes of death were excluded, or were at least excludable.
When the report was offered as an exhibit, the trial judge refused to admit it. Plaintiff’s counsel objected and strenuously. He properly preserved the claimed error. His theory of prejudice by the refusal is that as an admitted exhibit, it could have been available to the jury during its deliberations. He argues further that, because of the length of the jury’s deliberations, serious questions of liability were of necessity considered, and that the availability of the report for discussion and evaluation might well have produced a different result. We agree.
The exhibit was admissible under the business entry act. If its admissibility was denied by reason of alleged hearsay (and we cannot determine precisely the ground on which it was excluded), the objection is unmeritorious because its author was present and available for cross-examination. The record shows that early in its deliberations, the jury asked for all the admitted exhibits. The exclusion of this crucial item of evidence as an exhibit was reversibly erroneous.
We advert next to the exclusion of a report of an insurance adjustor presumptively representing the hospital’s liability insurance carrier. On oral argument all counsel stated openly, and upon our recorded transcript of argument, that the witness was an agent of the hospital. Examination of the report disclosed it to have included possible admissions against interest. Unfortunately, the cross-examination of the witness concerning this exhibit did wander into a field of conclusionary questions which entailed medical conclusionary answers which were properly excluded. We note the foregoing because of the likelihood of the issue arising again in the event of a new trial.
For the reasons herein set forth, we affirm the jury verdict of no cause of action as to defendant Eickhorst.
We vacate the verdict and judgment of no cause of action as to defendant hospital, and reverse and remand as to it for a new trial.
Proportionate costs may he taxed against the appellee hospital. If need he, that proportioning, absent agreement, may be made by the trial judge.
All concurred.
In the unlikely event that the Bar and Bench do not know, we note that an anesthesiologist is an M.D. specializing in anesthetics.
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] |
O’Hara, J.
This is an appeal of right from a verdict and judgment in the amount of $114,343 in favor of plaintiff school district awarded by the trial judge sitting without a jury.
Defendant contractor assigns as his first claim of error the award of damages against him in any amount on the ground that his bid offer was not accepted before he discovered a very substantial error in his bid — $80,464. He immediately apprised the board of this error. It is, we think, important to note that the mistake was not one of computation or of estimate, but rather a clerical error in the failure of a typist to include in the final typewritten form of bid figures on four recapitulation sheets which contained the additional $80,000 amount.
While there is some minor conflict as to the sequence of events after the error was discovered, it is not disputed, and it was so found by the trial judge, that at a special session of the board of education of plaintiff district, at which the bids were to be accepted, defendant’s chief estimator appeared and explained that after he had consulted with the architect the error was discoveréd. He offered on behalf of defendant contractor to perform the omitted work for $69,665, as opposed to the original bid computation of $80,000 for the same work.
Significantly, the board at the July 10 meeting accepted the lowest bid for the architectural trades and the lowest bid for the mechanical trades, but deferred any action on the alternative request of defendant to withdraw his original bid, or stand on his modified bid with the allowance of the addition of the offered increase of $69,000.
It seems to us that at that moment the contractual agreements, if any, between the parties were extinguished. The bid as originally made was withdrawn, without acceptance. A new offer was made and was never accepted. Thereafter, this litigation ensued.
We do no violence to the settled principle that the findings of fact of a trial judge, sitting as trier of the facts, will not be set aside unless clearly erroneous, because we reverse for an error of law. We believe the learned trial judge misapplied the applicable law to his found facts.
He found that on July 22, twelve days after defendant’s appearance at the special session of the board, that:
“plaintiff accepted the base bid of the defendant * * * and notified the defendant accordingly.”
The error was that there was no longer in law any “base” bid to be accepted. Defendant, when manifestly, legally entitled to, withdrew that bid and made another offer. The situation here is not the same in law, or in fact, as existed in the case relied upon by the trial judge. Kutsche v. Ford (1923), 222 Mich 442.
Kutsche is a deceptive case to read and apply to the facts of the case at bar. In Kutsche it was the contractor who brought the action. Here the situation is the exact converse. The school board is seeking damages from the contractor. The head-notes of that case are also deceptive in that they recite settled law adverse to the plaintiff contractor, but the case holds them inápplicable to his suit for the return of his bid deposit since he withdrew his bid before acceptance.
Kutsche and the cases that follow it are dispositive, but contrary to the result reached herein. We refer particularly to the successor opinion, Union & People’s National Bank v. Anderson-Campbell Co. (1932), 256 Mich 674. In National Bank, supra, the City of Lansing advertised for sealed bids for the construction of a sewer in that city. The defendant company submitted a bid totaling $46,325.75. It was accompanied by a certified check in the amount of $2,300, representing security for the contractor’s promise to enter into the contract within 10 days after receiving notice of acceptance.
At the first regular meeting of the city council, following opening of the bids, the council was advised by written communication from the defendant that an error totalling $2,873 had been made. Nonetheless, the council promptly accepted the bid. Defendant thereupon refused to complete the contractual formalities and directed the bank on which the bid deposit check was drawn to stop payment. Thereafter, an action was brought in which the contractor was a named defendant. A decree for defendant contractor was entered and affirmed following appeal to the Supreme Court. The Court quoted liberally from Kutsche observing that:
“Where a mistake is of so fundamental a character that the minds of the parties have never, in fact, met, or where an unconscionable advantage has been gained by mere mistake or misapprehension, and there was no gross negligence on the part of the plaintiff, either in falling into the error or in not sooner claiming redress, and no intervening rights have accrued, and the parties may still be placed in statu quo, equity will interfere in its discretion, to prevent intolerable injustice.” (p 678.) (Emphasis supplied.)
The above distinction is also discussed in 52 ALR2d 792, 794:
“The term ‘negligence’, or its equivalent, in this connection generally means ordinary negligence, which will not necessarily bar granting equitable relief. Otherwise qualified, it generally means carelessness or lack of good faith in calculation which violates a positive duty in making up a bid, so as to amount to gross negligence, or wilful negligence, when it takes on a sinister meaning and will furnish cause, if established, for holding a mistake of the offending bidder to be one not remediable in equity. It is thus distinguished from a clerical or inadvertent error in handling items of a bid, either through setting them down or transcription.” (Emphasis supplied.)
As in National Bank, supra, no intervening rights accrued. The bids were not cancelled and readvertised. The board accepted the second lowest bid. To award the school district the difference between the erroneous bid and that which was accepted would seem to us to be unconscionable.
As to the claim against the surety on the bid bond the condition of the obligation is that “ # * '* if the obligee [board of education] shall accept the bid of the principal [contractor] # * * or in the event of the failure of the principal to enter such contract * # * ” then certain liability arises on the part of the surety.
Neither of the conditions under which the surety would be liable eventuated. Here there could be no liability upon the part of the surety.
We reverse as to the judgment against the surety as a matter of law.
All concurred. | [
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Lesinski, C. J.
Defendant pleaded guilty to murder in the second degree, MCLA § 750.317 (Stat Anri 1962 Rev § 28.549). Defendant appeals as of right. Defendant assigns as error two questions, each of which will be considered in turn.
After defendant entered his guilty plea to the second-degree murder charge, the plea was accepted by the trial court and a day was set for sentencing. On that date, defendant appeared before the court and stated that his reasons for pleading guilty were that he was unable to obtain a fair trial or adequate representation from his retained attorneys. After listening to this statement, the court then asked defendant whether he wished to withdraw his plea. At three different points in the proceedings, defendant expressed his desire to stand with his original plea of guilty.
It is our opinion that the trial court exhibited scrupulous fairness in this cause. After hearing defendant’s complaints about his inability to obtain a fair trial and adequate representation by his attorneys, the trial court extended an opportunity to defendant to withdraw his plea and to proceed to trial. Defendant declined to do so. We find no error on this score.
Next, defendant maintains that his plea was induced by promises made to him by the police and the prosecution. However, on five occasions prior to acceptance of the plea, the court inquired of defendant whether his plea was being made without promises of any kind, without threats, without undue influence, and free from any pressure. At each time, defendant indicated that his plea was being made voluntarily. When defendant unequivocally states on the record that no promises, inducements, coercion, or other undue influences have been offered to him or brought to bear upon him, he may be held to his on-the-record denial of such improper pressures, notwithstanding his later allegations. People v. Gant (1966), 4 Mich App 671; People v. Pledger (1969), 20 Mich App 314; People v. Drain (1970), 24 Mich App 249; People v. Peterson (1971), 30 Mich App 215. Indeed, where the defendant is advised of the maximum penalty and that the court may impose a penalty within the statutory maximum, as in the situation at bar, defendant’s allegations of promises of leniency are without merit. People v. Shaffer (1966), 4 Mich App 192; People v. Washington (1970), 23 Mich App 638.
A perusal of the record below reveals an exemplary taking of the guilty plea by the trial court. GCE 1963, 785.3 and Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274), were followed in every detail. On the day of sentencing, the trial court afforded defendant an opportunity to withdraw his plea of guilty. We see no reason whatsoever for the disturbance of this valid plea on appeal.
Affirmed.
All concurred.
Defendant contends that the police and prosecutor promised to be lenient in their handling of defendant, that he would receive psychiatric help, that an illegal confession was extorted from defendant, and that police officers forceably removed scrapings from underneath his fingernails and samples of his pubic hair. These facts were presented in defendant’s attorney’s motion to vacate the plea and to proceed to trial. The facts alleged were not presented by sworn affidavit but merely as a litany of. grievances cited by defendant’s attorney. We treat the allegations as having the weight of unsworn assertions of fact and not as characterized by defendant, i.e., “an uncontroverted offer of proof”. | [
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R. B. Burns, P. J.
The City of East Grand Rapids’ Zoning Board of Appeals granted a vari anee to the defendants Michael Dodgson, the Sibley Corporation, Edwin A. Dalroot, Eva Dalroot, Gerald W. Dekker, and Arleyn Dekker to permit the construction of a medical office building on their properties in the City of East Grand Rapids.
The property involves three parcels of land. The Sibley property is occupied by the Burleson Hospital and an office building, while the other two properties (the Dalroot and Dekker properties) are residences. All three parcels are zoned “A-3 residence”.
The Burleson Hospital operated for many years as a nonconforming use but lost such status due to the lapse of use for over a one-year period.
The trial court adopted the findings of fact made by the appeal board as its own, and the record substantiates such findings of fact.
The Sibley property consists of two lots valued for residential purposes between $5,000 and $6,000 each. The cost of demolishing the hospital and the office building is estimated at $8,500. It is not feasible to remodel or repair the hospital for any present use.
Because of the unique situation there are practical difficulties and unnecessary hardships amounting practically to confiscation of the Sibley property if it is required to be used as presently zoned.
Neither the board nor the trial court found that the Dalroot and Dekker properties suffered any hardships and they are presently being used as single family residences. However, due to the parking requirements, it is economically unfeasible to construct the medical building without utilizing the Dalroot and Dekker properties for parking.
MCLA 1971 Cum Supp § 125.585(d) (Stat Ann 1969 Rev § 5.2935[d]) reads in part:
“Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of appeals shall have power in passing upon appeals to vary or modify any of its rules, regulations or provisions relating to the construction, structural changes in, equipment, or alteration of bpildings or structures, or the use of land, buildings or structures, so that the spirit of the ordinance shall be observed, public safety secured and substantial justice done.”
The East Grand Rapids zoning ordinance § 5.122 (c) reads almost identically:
“Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this Chapter relating to the construction, structural changes in equipment, or alterations of building or structures, or the use of land, building or structures so that the spirit of this chapter shall be observed, public safety secured, and substantial justice done.”
The zoning board of appeals and the trial court utilized this language in granting the variance.
The trial court in its opinion stated in part:
“The board’s fact finding in this respect was as follows:
“‘(e) Although the Dekker and Dalroot lots are presently used for residential purposes, the testimony establishes that it will not be possible to make reasonable use of the Burleson property without the inclusion of the Dekker arid Dalroot lots. Mr. Gray, an architect, testified that it was not feasible to confine the proposed medical building project to the Burleson property because of the shape and topography of the site, and further testified that this conclusion was supported by a study of three or four alternate architectural schemes. Mr. Dodgson, one of the developers, testified that it would not be economically feasible to build only on the Burleson property and provide the required parking, because there would not be enough income from the project to support it. Mr. Childs, Secretary of the East Grand Rapids Planning Commission, testified that the commission had unanimously voted that it would not be advisable to confine the project to the Burleson property.’
T? IP
“It will be noted that both the enabling statute and the applicable ordinance grant the zoning board of appeals a broad area of discretion in fashioning variances. Neither places any limitation on the board which could be construed as requiring that variances be limited by platted lot lines. Nor have there been any such restrictions developed by the common law in this state. Although not always willing to do so in result, the appellate courts of Michigan have repeatedly advised trial courts to leave local zoning authorities a broad area of discretion. Brae Burn, Inc., v. Bloomfield Hills (1957), 350 Mich 425; Schlitz v. Huckabee (1970), 23 Mich App 36.
“It is of some persuasive significance to observe that the defendants do not seek to add the Dekker and Dalroot lots to their variance by mere whim. They must in order to satisfy the off-street parking standard governmentally-imposed by the East Giand Rapids Zoning Ordinance. That government cannot recognize a hardship and at the same time withhold by its parking regulations the means of alleviating the hardship.
* * #
“Further, in the words of 74 Harv L Rev [1396 (1961) Note, ‘Zoning Variances’], at page 1396, the original purpose of variances was to protect zoning ordinances from constitutional attack, ‘ * * * but today the prime purpose of the variance is to benefit the community and the individual property owner by assuring that property capable of being put to commercial, industrial, or residential use will not lie idle.’ The East Grand Rapids Zoning Board of Appeals properly satisfied that prime purpose when it included all three parcels in this variance.”
There were sufficient facts before the zoning* board of appeals for it to find that the Sibley parcel could not be utilized in the manner consistent with the existing* zoning ordinance for the board to grant the variance.
We affirm the grant of the variance as to the Sibley property.
The remaining two parcels owned by the Dalroots and the Dekkers present a different problem. It is agreed that no evidence was presented to support the finding that these parcels suffered an unnecessary hardship. In fact both parcels are presently being used in a manner consistent with the zoning ordinance.
In Puritan-Greenfield Improvement Association v. Leo (1967), 7 Mich App 659, this Court stated (pp 669, 670, 675, 676):
“It has been said that the function of a board of zoning appeals is to protect the community against usable land remaining idle and it is that purpose which gives definition to ‘unnecessary hardship.’
“ ‘Since the main purpose of allowing variances is to prevent land from being rendered useless, “unnecessary hardship” can best be defined as a situation where in the absence of a variance no feasible use can be made of the land.’ 74 Harv L Rev 1396, 1401 (1961); quoted in State, ex rel. Markdale Corp., v. Milwaukee Board of Appeals (1965), 27 Wis 2d 154, 163 (133 NW2d 795, 799).
“Whatever the rationale may be, it has been held that a variance should not be granted until it appears the property cannot be put reasonably to a conforming use (Brackett v. Board of Appeal of Building Department of City of Boston [1942], 311 Mass 52 [39 NE2d 956, 961]; Stolz v. Ellenstein [1951], 7 NJ 291 [81 A2d 476, 478]); or the application of the ordinance is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property (Stole v. Ellenstein, supra); or that the property cannot be used for a conforming purpose (Brown v. Beuc [ (Mo App, 1964), 384 SW2d 845] at p 852; similarly C. & C., Incorporated, v. Semple [1966], 207 Va 438 [150 SE2d 536, 539]; Searles v. Darling [1951], 46 Del 263 [83 A2d 96,100]).
# ^ ^
“It can readily be seen that unless the power of the board of zoning appeals to grant a use variance is defined by objective standards, the appeal board could (and we do not in any sense mean to suggest this would be deliberate) rezone an entire neighborhood — a lot or two lots at a time. The variance granted in response to one ‘hardship’ may well beget or validate another claim of hardship and justify still another variance. If it is a hardship to be next to a gasoline station, it could be a hardship to be across from one, to be behind one, or diagonally across from one. If heavy traffic is a valid basis, variances might become the rule rather than the sparingly granted exception.”
In our opinion the granting of a variance as to the Dalroot and Dekker properties was in effect rezoning the parcels.
The decision of the trial court is affirmed in its approval of a grant of a variance as to the Sibley parcel and it is reversed in its grant of a variance as to the Dalroot and Dekker property.
No costs, a public question being involved.
All concurred.
Defendant Michael J. Dodgson holds an option to purchase property from codefendants, Sibley Corp., Edwin A. and Eva Dalroot, and Gerald W. and Arleyn Dekker; on behalf of himself and the title owners of the property he filed an application with the East Grand Rapids Zoning Board of Appeals for grant of a variance as to all three parcels. | [
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] |
McGregor, J.
On December 17, 1968, plaintiffs sued defendants for breach of contract and specific performance, on a contract for the purchase of a home. The case was tried on June 18, 1970, in the circuit court; judgment was entered in favor of the plaintiffs.
The Bradley Building Company, one of the defendants, is a Michigan corporation, actively engaged in the building business in the City of Warren. The codefendant, Burton Freedman, was an employee of that corporation. During December, 1965, the plaintiffs and the defendant corporation entered into a contractual agreement whereby the plaintiffs were to purchase a home to be built by the defendant corporation, for a price of $16,940, with a down payment of $640. Subsequently, on November 23, 1968, the plaintiffs, in the presence of their attorney, executed a new contract for the purchase of the same home which, in effect, superseded the first agreement, the latter contract being in the amount of $16,- 740 with, the same down payment. The new home was completed in late 1968; the reason for the delay is not pertinent to the issue before us.
The purchase contract provided for the buyers to apply for an FHA mortgage in the amount of $16,-100. It was defendant Freedman who actually forwarded the required data to Capitol Mortgage Corporation, an FHA-approved lending institution, on November 25, 1968. The Capitol Mortgage Corporation rejected the application, apparently because of the lack of an FHA inspection and insufficient down payment. On November 27, 1968, defendant Freedman received a letter from Capitol, confirming the rejection. Freedman testified that he attempted without success to call plaintiffs and their attorney. Freedman then sent the letter aforementioned, by certified mail, in a plain envelope, return receipt requested, with a cashier’s check, returning to plaintiffs their deposit of the down payment funds. Plaintiffs acknowledged receipt of this letter. On December 17, 1968, plaintiffs commenced this action for breach of contract and specific performance. On December 21, 1968, defendants sold the property for allegedly $22,900, although the deed of conveyance showed $24,700, and the purchaser took possession subsequently.
On July 6, 1970, after a circuit court trial, judgment was entered in favor of plaintiffs for $6,705.71 including interest at six percent and costs. The trial judge made his findings of fact, in part, as follows:
“The court finds in this case that the parties entered into a contract for the purchase of and the sale of property; that in the contract there was a provision whereby the plaintiff purchasers were to seek a mortgage through the FHA.
“It further appears that the sellers, which is not unusual in these cases, apparently having contacts with the lending institutions, made the application for the loan and was turned down; that is the plaintiffs were turned down.
“The plaintiffs did everything that was asked of them. They furnished the credit statements, the employment records, and apparently were in position to meet the closing costs.
“The letter of rejection is very brief, and was simply enclosed in a plain envelope together with the down payment check to the plaintiffs without any explanation whatsoever.
“From then on there seems to be no communication at all.” (Emphasis supplied.)
On appeal, defendants contend that the contractual duty of plaintiffs to apply for an FHA mortgage under the contract was a condition precedent to the defendants’ tender of the property, and that the plaintiffs, not having fulfilled this condition, were not entitled to seek or claim a breach of contract.
It is sometimes said that a condition precedent is a fact or event which the parties intend to exist or take place before there is a right to performance, citing MacDonald v. Perry (1955), 342 Mich 578; Knox v. Knox (1953), 337 Mich 109. Courts are disinclined to construe the stipulations of a contract as conditions precedent, unless compelled by the language of the contract plainly expressed. In the instant case, it cannot be said that defendants demonstrated that a condition precedent was intended by the parties, nor does the language indicate that this was intended.
There was testimony that defendant Freedman agreed to process the application for an FHA mortgage and the plaintiffs relied upon the sellers to make the application for the FHA mortgage. The plaintiffs executed the papers necessary for such an application, which papers were forwarded to the FHA-approved lending institution by the defend ants. After the plaintiffs had furnished the credit statement and required records to the sellers for purposes of preparing the application for the FHA commitment, the next communication they received from the defendants was a copy of the mortgage rejection letter and the cashier’s check refunding their down payment.
We find it somewhat anomalous that the defendants, who actually submitted the mortgage application papers to the lender, now claim that it was a condition precedent for the buyers to do this. The trial court found that the plaintiffs had done everything that was asked of them. We agree.
Since the findings of the trial court are not clearly erroneous, its judgment is affirmed. Costs to plaintiffs.
All concurred. | [
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Per Curiam.
The plaintiffs, Charles Edward Jackson and his wife, Maxine Wright Jackson, commenced this action against the defendants, City of Detroit, John Doe, and John Boe. The unidentified individuals are police officers of the City of Detroit. The plaintiffs claim that the unidentified officers committed an assault and battery upon Charles Edward Jackson, damaged his automobile, and made derogatory remarks concerning his race.
Defendant City of Detroit moved for partial summary judgment in its favor on the ground that the operation of a police department is a governmental function and it is therefore immune from liability under the provisions of § 7 of PA 1964, No 170 which provides: “Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said government agency is engaged in the exercise and discharge of a governmental function.” MCLA § 691.1407 (Stat Ann 1969 Bev § 3.996 [107]).
The plaintiffs opposed the motion claiming that § 7 is unconstitutional because it violates the one-object-expressed-in-its-title provision of Michigan’s Constitution (Const 1963, art 4, § 24) in that the title of PA 1964, No 170, states that it is an act to make uniform the liability of municipal corporations and other governmental agencies “when engaged in a governmental function, for injuries to property and persons caused by negligence” which is narrower in scope than the language of § 7 which purports to make governmental agencies “immune from tort liability” when engaged in the exercise and discharge of a governmental function. (Emphasis supplied.)
The trial judge declined to hold that § 7 was unconstitutional, and ruled that the words “tort liability” in § 7 should be construed, in light of the title, to mean “negligent tort liability”; and, since so construed § 7 would not bar an action for an intentional tort, he denied the city’s motion for partial summary judgment. The city appeals by leave granted.
In Maki v. East Tawas (1971), 385 Mich 151, the Michigan Supreme Court held that § 7 was unconstitutional, and declined to preserve the constitutionality of § 7 by reducing “the scope of the government’s § 7 immunity from immunity for all ‘torts’ to immunity from ‘torts caused by negligence’ ”. (Emphasis by the Court.)
On the authority of the Supreme Court’s decision in Maki, we affirm the trial judge’s order denying the motion for partial summary judgment.
Affirmed and remanded for further proceedings consistent with this opinion. Costs to the plaintiffs. | [
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Per Curiam.
The defendant pled guilty to assault with intent to rob while armed, a violation of MOLA § 750.89 (Stat Ann 1962 Bev § 28.284). He was sentenced to a term of life imprisonment.
The defendant makes two allegations of error on appeal. The first is that the trial judge did not make a sufficient inquiry into the facts to support his acceptance of the guilty plea. The other is that his plea was not freely and voluntarily made.
On appeal, this Court may review the transcript of the preliminary examination in order to determine whether there was a sufficient factual basis for a defendant’s plea. People v. Hinton (1970), 27 Mich App 186; People v. Medley (1970), 27 Mich App 195; and People v. Bradshaw (1970), 28 Mich App 354. A review of the preliminary examination in this matter reveals a sufficient factual basis to support the defendant’s plea of guilty, and we find there was no error on that count.
We may reverse a guilty plea as not being freely and voluntarily made if there are unfulfilled promises on the part of the prosecutor. People v. Bartlett (1969), 17 Mich App 205. This defendant alleges no unfulfilled promises on the part of the prosecutor, and a review of the transcript of the guilty plea proceeding indicates that it was indeed freely and voluntarily made.
We find no reversible error in the proceedings below. The defendant’s conviction is hereby affirmed. | [
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Hooker, J.
In August, 1888, the claimant owned a farm, which he had previously bought subject to a mortgage held by one Dakin, since deceased, and which was in August, 1888, in process of foreclosure in chancery, the sale being advertised for September 15. At this time, i. e., August, 1888, the claimant owned an undivided half of the crops upon the premises; the other half being owned by one Palmer, who put them in upon shares. The land was bought by Dakin upon the sale, and he thereafter sold Dayton’s share of the crop, including some corn which is claimed to have been cut and shocked before the sale. After Dakin’s death the claimant filed a claim against the estate, which was disallowed; and an appeal was taken to the circuit court, where he recovered a verdict for $326.70, from which the administrators appealed. The claim which appears to have been relied upon in the circuit court was that the portion of the crop that was severed before September 15 belonged to the claimant, and, further, that an agreement was made, under which Dakin was allowed to enter and take possession for certain purposes on September 1, in consideration of a promise to allow the claimant to take his share of the growing crops.
The -first question to be noticed arises over an amendment to the claim permitted by the circuit judge. The return of the commissioners showed the names of claimants, the amount claimed, and the amounts allowed. Opposite claimant’s name, under the word “ Claimed,” was placed the sum of $432.56, followed in the column for “ Amount Disallowed ” by the same sum. The printed record (and presumably the original) contains an exemplification of the record of two claims, one of wbicb is for •1432.56, over the certificate of the probate court. They have no place in the record, unless they are parts of the proceeding, although there is nothing upon them to show that they were filed separately in the circuit court; but "they appear under the same certificate of the probate .judge, as a part of the exemplification, and we think that they should be so considered.
It is further contended that the amendment enlarged the claim as heard by the commissioners. If it did, the amendment is improper, under repeated decisions, of which the case of Patrick v. Howard, 47 Mich. 40, cited by counsel, only need be mentioned. We may profitably •eliminate one of the claims mentioned, as the commissioners appear not to have passed upon it. The other'was as follows:
“Estate of John B. Dakin, Deceased, in account with George M. Dayton, Dr.
To 900 bushels of corn, one-half grown on 47 acres,
25 cents per bushel..............................$225 00
To 20 bushels potatoes at 35 cents per bushel_____ 7 00
To 17-J barrels of apples at $2 per barrel.......... 35 00
To interest for three years........................ 48 06
$315 06
To one-half of the corn fodder grown on the 47 acres above named, at $5 per acre, and interest at the legal rate upon the item of $117.50 for three years......................................$117 50
$432 56”
The claim, as amended, was as follows:
“Now comes said claimant, and by leave of court, first ■obtained, amends his claim so that the same shall read as follows: •
To 1,000 bushels of corn grown in several parcels, aggregating about 47 acres, in the year and cropping season of A. D. 1888, upon the farm then occupied by one George Palmer, described as all of the south-west quarter1 of section No. 24, and the north-west quarter of the north-west quarter of section 25, except five acres off from the south-west corner, and also the north 46 acres of east half of south-west quarter of section 25, all in town 4 north, of range 2 east,
Ingham county, Michigan, at 35 cts. per bushel.- $350 00
To 20 bushels of potatoes grown on said farm during said season, at .35 per bushel............ 7 00
To 17£ barrels of apples grown on said farm during said season, at $2.00 per barrel............. 35 00'
To one-half of the cornstalks and fodder from which said corn above mentioned was husked and gathered, at $5.00 per acre; that is, one-half of $235..................................... 117 50
Total principal................................$509 50
To interest on said total at 7 per cent, per annum since September 15, 1888 (from September 16, 1888, to March 16, 1893)........................ 160 50
Total principal and interest................... $670 00”
If these claims are to be measured by dollars and cents-only, it must be conceded that the amendment enlarged the amount of the original claim. The 900 bushels of corn was increased to 1,000, and its value from $225 to $350. To this also was added the sum of $160.50 for interest from the date of the conversion. The claim was stated in various ways, in addition, viz.: A claim was made for the money received by Dakin upon a sale of claimant’s half of the property, and for interest thereon. He charged for rental of the farm from September 1 to September 16 the crops alleged to have been promised to claimant, and interest. He made a claim for the rental value of the farm for a year, from September 1, 1888, to September 1, 1889, with interest. Our attention is not called to anything in the evidence or charge tending to show that the last three forms of stating claimant’s demand were considered by the jury, or cut any figure upon the trial. They may, therefore, be disregarded, as, at most, they were error without injury.
Turning our attention1 to the first amended claim, we' may pass the interest question with the remark that the: claimant would have been entitled to interest upon his/ claim, if allowed, though it had not been specifically mentioned in the claim, upon the principle that interest may be allowed on money illegally withheld, or property converted, without proof of special damage. Edwards v. Sanborn, 6 Mich. 348; McCreery v. Green, 38 Id. 172; Davis v. Strobridge, 44 Id. 157; McGuire v. Galligan, 53 Id. 453; Ripley v. Davis, 15 Id. 75; Northrup v. McGill, 27 Id. 234, 238; Burk v. Webb, 32 Id. 173; Winchester v. Craig, 33 Id. 205; Allen v. Kinyon, 41 Id. 281; Symes v. Oliver, 13 Id. 9; Chapman v. Dease, 39 Id. 333. It is the common practice, in actions for breach of contract, to allow interest without a special averment. Whether it be said that Dakin was liable for an unlawful conversion or for breach of contract, the same is true.
This brings us to the corn. In the original claim the amount was mentioned at 900 bushels; in the amended account, at 1,000 bushels. In the former, however, it was alleged to be one-half of the product of 47 acres of land. Doubtless this would have justified an allowance of one-half of the corn grown upon the 47 acres, which is all that was claimed upon the trial, as the evidence and charge disclose. It can therefore be truly said that in this respect the identical claims were tried on both occasions, and that all that was tried upon the amended claim might have been allowed by the commissioners under the claim as first filed.
The next question of importance is the proof of the alleged contract. Dakin was dead, and the claimant under the statutory disability. Counsel attempted to prove the contract by shoeing negotiations between counsel for the respective parties by letter, and possibly otherwise, and by the conduct of the parties. These letters were:
1. A letter dated August 30, 1888, from Mr. Smith to his client, Dakin, containing an offer of an arrangement such as is now claimed.
2. A letter of August 29, 1888, from Mr. Montgomery to his client, Dayton, stating that he had had an interview ivith Mr. Smith, and asking him to come in and talk it over.
3. A letter from Mr. Montgomery to Dakin, claiming Dayton’s right to the crop under such arrangement.
4. A letter from Mr. Smith to Mr. Dakin upon the same subject, apparently in answer to a letter inclosing the letter from Mr. Montgomery to him, and asking information in regard to the facts.
This was followed by testimony tending to show that Mr. Dakin came upon the farm September 1, and arranged with the tenant to put in wheat, stating that he and Dayton had made arrangements about putting in the wheat crop on the farm, and that wheat was put in accordingly. Subsequently, on September 15, Mr. Dakin again came on the farm, and wanted to sell Dayton’s share of the crops •.to the tenant, and finally did so.
Objection was made to the admission of these letters. They tended to prove that negotiations were had, of the character claimed, between counsel; that at the time Dayton was informed of that fact; that later Dayton’s counsel brought home the claim that such contract was made to Mr. Dakin, who communicated with Mr. Smith about it, asking for his version of the talk with Mr. Montgomery. All of these were pertinent facts, and would have been admissible had Dakin been defending in person. They are by no means conclusive, however. They are consistent with and corroborative of such a contract, though they fall short of establishing it. They were therefore admissible.
It is said, however, that there was no further evidence to support the claim of a contract; that nothing shows that Dayton and Dakin ever met, or agreed upon anything. But this overlooks the statement made by Palmer, that Dakin said that hé and Dayton had arranged about putting in the wheat. Unless there were witnesses present, that is the only kind of evidence admissible of such meeting and talk, as Dakin was dead and Dayton could not testify. It was clearly competent, and there is room for an inference that the talk alluded to the matters referred to in the letters.
Defendant’s next contention is that such agreement would not have been effectual to prevent the crops passing to Dakin upon his becoming the purchaser at the foreclosure sale two weeks later. A number of cases are cited in support of this claim. All of them support the proposition that a sale under a decree of foreclosure carries unharvested crops, which is undisputable. But annual crops may be sold 'and conveyed by parol contract. Vanderkarr v. Thompson, 19 Mich. 86; Tripp v. Hasceig, 20 Id. 261; Crapo v. Seybold, 35 Id. 169, 36 Id. 444; Austin v. Sawyer, 9 Cow. 39; 3 Pars. Cont. 31, and cases cited. Had Dakin been the absolute owner of such crops at the time, he could have sold them to Dayton, and yielding possession to the premises, and permission to sow wheat, two weeks before Dayton’s exclusive < right to the premises could be divested, would have been sufficient consideration to support the sale. It was no less a consideration for an executory agreement that Dayton should have and might take off the crop, if indeed such agreement did not at the time amount to a sale of his interest in the crop, whatever it was. We think of no reason why Dakin could not make an executory contract to sell these crops, though he did not at the time have any title to or interest in them; and we find nothing in the cases cited to the contrary. If it should be admitted, in accordance with the case of Ledyard v. Phillips, 47 Mich. 305, that any other purchaser at the foreclosure sale would have taken the crop, and further that Dakin, in case of a purchase by him, would take the same, and did so, his executory contract, made upon a distinct consideration at a different time, would be binding upon him. It cannot be said that he was paying for the property twice. Assuming that he bought and paid for it at the sale, and obtained the title to the crops thereby, the consideration for parting with them was already received.
Error is assigned upon the testimony of Palmer, showing that he did work for Dakin, and its value, as a consideration for Dayton's share of the crop. Had he said he bargained for these crops, and paid Dakin a given sum of money for them, it would have been proper, as showing the conversion. But, as he did not pay money, he stated what he did pay, which we think competent.
The other questions raised by the record present no_ legal questions of interest, and are therefore not discussed, further than to say that we find no error in them.
The judgment will be affirmed.
The other Justices concurred. | [
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] |
Grant, J.
On March 11, 1893, the plaintiff and defendant made a written contract, by which the plaintiff agreed to sell to the defendant, for its own consumption only, all the slabs, edgings, and pieces trimmed from the lumber which his mill might cut during the season of 1893; to deliver them, properly piled, on scows alongside its mill dock, at the point designated by it; and the defendant agreed to pay for the same 80 cents per cord. It was understood that they were to be measured upon the scows, and were to be piled thereon by the plaintiff in reasonable condition for measurement. Payments were to be made the first of each month for the materials delivered during the previous month. Delivery was commenced April 24. Previous to May 5 the defendant made complaints to plaintiff that the scows were not properly loaded. Plaintiff then made a change for the better in loading, and no complaint was afterwards made until the close of the season. Each party made measurements as the material was delivered; the plaintiff’s measurements making 8,702 L03-120 cords, the defendant’s measurements making 7,591 1-6 cords. The defendant paid each month according to its measurements. -This suit is instituted to recover the balance claimed to be due. The defendant, with its plea •of the general issue, filed notice of recoupment for failure •on the part of the plaintiff to perform his contract. Plaintiff’s claim was $1,274.95, which included two small items about which there is no dispute. He recovered a verdict and judgment for $1,151.53.
1. The first assignment of error is that the court erred in refusing to permit the defendant to show, upon cross-examination of plaintiff’s agent, how much of the entire quantity of slabs, edgings, and lumber trimmings was four feet long. The contract contained no specification as to the length of the material. It is, however, claimed that the parties placed a practical construction upon the contract, and the defendant’s counsel, when the question was ■asked, stated that the material, according to his version of the contract, was to be four feet long. The defendant received and used the entire material furnished. Its notice •of recoupment' is very full and explicit, containing five •counts. In this notice no claim is made for damages on account of the material being in excess of four feet for any other reason than that it could not, for that reason, be correctly piled, and could not be unloaded without great loss of time, and that by reason thereof the carriers became choked and clogged, and the carrier chains broken. The defendant is bound by this notice, and cannot enlarge its scope by claiming damages not specified therein. Delaware & Hudson Canal Co. v. Roberts, 72 Mich. 49. The testimony sought to be élicited was not essential to a •determination of the question of piling and measuring. The defendant gave no evidence to show that its carriers were 'clogged or the chains broken. There was no error, therefore, in its exclusion.
2. The same reasoning applies to the exclusion of a letter written by the defendant to the plaintiff July 10. It reads as follows: '
“We have just ordered for the stave machine an attachment for making 2-inch staves. We will therefore require all of the edgings cut to 31 inches. The writer has on several occasions requested this, thinking you would decide that it was only our due that you should make the change in your trimmer to cut to 31 inches, as our claim under the contract is that we are not to take anything but four feet. While you are cutting the slabs 31 inches, as requested by us, we are perfectly willing to take the slab trimmings; but if you do not see fit to make the change to cut the edgings 31 inches, we will have to request you to keep the shorter pieces out, as we will not pay for them. We request your immediate decision in this matter, as, on the commencing of your mill, we will .positively refuse to accept of anything shorter than four feet in the edgings.”
As already noted, the contract did not specify the lengths. They were undoubtedly to be of the length known to be produced by the plaintiff at his mill. The defendant could not by notice change the contract. The court, at the request of the defendant, charged the jury that it was not bound to receive or pay for any part of the slabs, edgings, and lumber trimmings that were too' short to pay for handling, and that were not regarded by' the parties as coming under the terms of the contract. We are unable to see that this letter would have afforded the jury any light upon the question in controversy.
3. It is next insisted that the court erred in instructing the jury that the defendant’s claim for damages, for extra expense in unloading the scows on account of bad piling, could not be allowed, because (1) under the contract the privilege was given to the defendant to do this piling, ■provided the cost was not increased to the plaintiff; and (2) because, after May 5, — about 10 days after work commenced, — no protest whatever was made by defendant as to the manner of piling, and no mention was made of any ■such claim until after this suit was brought. The precise claim of the defendant is that it was compelled to employ extra hands in unloading the scows in consequence of the bad piling. We hold the instruction correct. The mills •of both parties were in close proximity. This provision of the contract must be held to have been inserted for some purpose. We conceive none, unless it be to give the defendant the right to pile if it should be dissatisfied with the manner in which the work was done by the plaintiff. The law will not permit it to ignore this provision, to make no objection to the manner of doing the work while it was being done, and then seek damages for piling in a manner not contemplated by the contract. The learned circuit judge, at the request of the defendant, instructed the jury that it was the duty of the plaintiff to do the piling in a reasonably careful and workmanlike manner, so that measurement could be reasonably made, and under a very careful and fair charge left to them the determination of the amount delivered. •
4. It is alleged that the court erred in refusing the following requests of the defendant:
“If in this case you find that the defendant furnished monthly statements showing the measurement of the slabs, •edgings, and lumber trimmings received by it, accompanied . with checks covering the amount of such monthly statements to plaintiff, which were received by him without •objection for a time, he would be estopped by his silence from questioning such measurements.
“The furnishing of statements by the plaintiff, showing .a contrary amount of slabs, edgings, and lumber trimmings delivered, will not be considered by you as an objection on his part to the measurement of defendant until after such statements were actually furnished, which, under the evidence, was not actually done until the 28th of July.”
Upon this subject the court instructed the jury that if they found that the defendant rendered monthly statements, showing its measurements, and accompanied each statement with a check for the amount shown to be due by it, that plaintiff received these Avithout objection, and remained for any considerable time silent, appropriating the' proceeds without objection to the measurements, he would be estopped by such silence from afterwards questioning them, in the absence of fraud or mutual mistake. There was conflict of evidence upon this subject, and it was recognized as a proper question to be submitted to the jury. The charge of the court was a correct statement of the law.
Judgment affirmed.
The other Justices concurred. | [
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Montgomery, J.
This is an action of trover. The facts in the case are not much in dispute. The plaintiff had contracted, through a trustee, M. W. O’Brien, to sell to one Ed. E. Ayer, of Chicago, a quantity of cedar ties. The defendant, Widner, was the agent of Ayer. In the spring of 1890 the defendant loaded, from plaintiff’s dock in Alpena, two vessels with ties to be taken under the contract. The plaintiff was not at the time present, but was represented by his foreman, Charles Shank, who, plaintiff says in his testimony, had charge of the men in loading the boats. There was some claim by plaintiff that he notified defendant not to send boats until later, as the ties were covered with ice. He testifies that he went from home for about a week, and, when he came back, heard that they had been shipping ties. He says: “I think Widner told me. I supposed, if he had, it was all right.” The contract between the parties provided that the ties should be “made of sound timber, and conform to and be subject in all respects to Chicago inspection, to be made at any port to which said ties may be consigned by said second party, upon either of the Great Lakes.” It also provided that—
“Upon the inspection of said ties herein provided for, no rejected ties shall be paid for at all, and no claim for pay for such ties shall be made; but said second party, after deducting rejected ties, shall not claim, upon said inspection, more than 10 per cent, of said remainder to be culls.”
On receiving the ties aboard the vessels at Alpena, defendant, Widner, refused to receive the “ dead culls,” as they were called, which were ties of unsound timber, and, .as appears by all the testimony in the case, were worthless. It is the claim of the plaintiff, further, that Widner rejected ties which were sound and merchantable.
The alleged conversion consisted of allowing the ties to be thrown into the lake. The testimony shows that defendant marked the ties which he was unwilling to accept with a blue pencil, and they were for a time piled upon the dock, but afterwards, by direction of the plaintiff’s foreman, Shank, were allowed to run into the lake. The defendant was in no way responsible for this, unless the fact of his refusing to accept the ties under his contract, coupled with the act of plaintiff’s own agent in throwing the rejected ties into the lake, makes him guilty of a conversion. We do not think that such legal responsibility attaches to him. The fact that it was the intention of the parties that the ties should be inspected at the port of destination does not establish plaintiff’s right to maintain trover for the ties rejected. Whether the defendant was right in insisting upon making an inspection or not, the fact that he did make an inspection does not amount to a conversion. The court charged the jury that—
“If the defendant did not assume to direct and control what should be done with those ties, after he had marked them; if they were then under the control of Mr. Turn-bull's foreman and his men, whose duty it was to load the vessel, to put them upon the rail; if they were under their control after Mr. Widner had marked them, and they had the control of them, either to send them into the lake or put them upon the dock, — Mr. Widner would not be liable in this action, whether he marked good ties or poor ties. But if you should find from the evidence in this case that he did actually mark good ties, and directed them to go into the lake, or refused to take them aboard the vessel, and they went into the lake, then he would be liable for a conversion of the property.”
These instructions, we think, were sufficiently favorable to the plaintiff. Indeed, we are not able to discover any evidence in the case which would have justified a recovery by the plaintiff.
Judgment will be affirmed, with costs.
The other Justices concurred. | [
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McGrath, C. J.
Plaintiffs, having brought proceedings against defendant to recover possession of certain premises, resulting in a judgment of ouster, affirmed by this Court (94 Mich. 474), now bring trespass on the case, under How. Stat. § 8306, for damages. The jury brought in a general verdict of guilty, assessing plaintiffs’ damages at $1,669.62, and in answer to a question submitted found that defendant held possession because he in good faith believed that he had a lawful right so to do. Plaintiffs thereupon moved the court for a judgment for treble the* amount of the damages awarded. The court denied the-motion. This raises the principal question in the case.
Plaintiffs insist that they are entitled, under the statute,, as a matter of right, to treble damages, notwithstanding; the special finding as to defendant’s good faith. We have; a number of statutes conferring the right to double or treble damages. By the terms of certain of them, the act done must be willful; others, after giving the right in general terms, provide that if it appear that the act was casual cr involuntary, single damages only are recoverable; while others provide in general terms' for the recovery, and do not in express terms make such recovery dependent upon the willfulness of the act, or except instances of casual or involuntary conduct, The statute in question here belongs to the latter class, and is as follows:
“ The complainant obtaining restitution of any premises under the provisions of this chapter shall be entitled to an action of trespass or trespass on the case against the defendant, and may recover treble damages from the time of the forcible entry or forcible detainer, or of the notice to quit or demand of possession, as the case may be, and all other damages to which he may be entitled.”
A number of cases involving the construction of other statutory provisions relative to increased damages have been before this Court. Wallace v. Finch, 24 Mich. 255; Russell v. Myers, 32 Id. 522; Michigan Land & Iron Co. v. Deer Lake Co., 60 Id. 143; Elliott v. Herz, 29 Id. 202; Shepard v. Gates, 50 Id. 495; Kilgannon v. Jenkinson, 57 Id. 325. The first three cases arose under How. Stat. § 7957, relating to cutting or carrying away or injury to its timber. Section 7958 provides that if it shall appear upon the trial that the trespass was casual and involuntary, or that the trespasser had probable cause to believe that the land was his own, single damages only shall be awarded. Wallace v. Finch was a case where defendant was in correspondence with the owner of the land with reference to its purchase, and, supposing that his letter accepting a proposition of sale had been received, entered upon the land and cut the timber. The Court held that, taking the sections referred to together, the intention of the Legislature was clear that the penal application should only be made in cases marked by wantonness,. willfulness, or evil design; in other words, that the act done, if not within the letter of the exceptions, was within the spirit thereof. Similar statutory provisions to that last named have received like construction in other states. Batchelder v. Kelly, 10 N. H. 436; Cohn v. Neeves, 40 Wis. 393; Barnes v. Jones, 51 Cal. 303; Russell v. Irby, 13 Ala. 131; Lindell v. Railroad Co., 25 Mo. 550; Whitecraft v. Vanderver, 12 Ill. 235. In all of these cases the construction .given will be found to be predicated upon a consideration •of associated provisions of the statute. In Batchelder v. Kelly, which is the earliest case, and which is cited in nearly all of the other eases, the court held that the general tenor of the statute precluded the idea that it was designed to apply the provision in question to unintentional trespasses. In Gohn v. Neeves other provisions of the same chapter of the statute are referred to, which the court held gave character to the conversion mentioned in the section under consideration. In Barnes v. Jones the title to the act was “Actions for nuisance, waste, and willful trespass, in certain cases, on real property.” In Lindell v. Railroad, Co. the statute was evidently like our ■own, for the court say that under the circumstances it ■could not be said that the defendant had any reason to suppose that literally the land or timber belonged to it, but the spirit of the statute is to punish willful -trespasses. Whitecraft v. Vanderver is based upon the Batchelder case.
Our own case of Elliott v. Herz arose under How. Stat. § 2119, which provides that the owner of any dog which shall have killed any sheep shall be liable in double damages, and it was held that the statute did not apply to a case of damage done by a rabid dog. Shepard v. Gates was brought under How. Stat. § 1406, which provides that whoever shall injure any bridge or any public road shall be liable in treble damages to the township. The Court held that, if defendant made the cut in the road under the proper statutory authority, the cut was no trespass, and, if the bridge over the cut was remodeled to the satisfaction of the highway commissioner, such an act could not be regarded as a trespass. Both of these cases come within the well-established rule applied to such statutes, that whatever is within the mischief intended to be remedied is considered as within the statute, though not within the letter thereof, and whatever is not within the mischief is not considered within the statute though within the letter.
Kilgannon v. Jenkinson was brought under section 7959, which provides that if any person shall be ejected or put out of any lands in a forcible and unlawful manner, or, being put out, be afterwards kept out by force, he shall be entitled to recover treble damages. A dispute arose as to the boundary line. Plaintiff erected a fence, and defendant tore it down. The case was reversed on other grounds, and no point was made or discussed in the briefs as to plaintiff’s right to treble damages. What the Court evidently meant by the suggestion was that the act complained of was a mere naked trespass, and not such a forcible ouster as to bring the case within the statute, under the rule adopted in Shaw v. Hoffman, 25 Mich. 162.
It must be concéded that in all of these cases language is used which, considered in the abstract, tends to support the defendant’s contention; but the question here turns upon the meaning of this particular statute. There is no question as to the power of the Legislature in the premises. There is no invasion of any provision of the Constitution. The interpretation of statutes of this class is governed by the same rules applied to statutes generally. What may or may not have been assumed or presumed in other cases, after proper consideration of associated provisions which throw light upon the particular provisions there questioned, ought to have little weight in a case-like the present, where the language is plain, and is-unaffected by the other provisions of the same act. The-chapter in which the section in question occurs relates to-proceedings to recover the possession of land. It first treats of forcible entries and detainers, and next of the-recovery of possession where the relation of landlord and tenant exists or has existed, and then occurs the provision in question. The language of the section is clear, explicit, and unequivocal. It is neither doubtful nor ambiguous. It is susceptible of but one meaning. The act furnishes no suggestion which throws any doubt upon the meaning of the language employed, or warrants a. departure from the intention of the Legislature as expressed, or authorizes a modification of the language used. Courts-cannot speculate beyond the reasonable import of the words employed. As is said by Westbrook, J., in People v. Supervisors of Greene, 13 Abb. N. C. 424, any attempted construction of the act which departs from its language, and purports to be based on the intention of the legislature, in the absence of any key to the meaning of words afforded by other parts of the act, is mere speculation, and must vary with the convictions of the reasoner as to what the law should have been. See, also, Gardner v. Collins, 2 Pet. 58; U. S. v. Wiltberger, 5 Wheat. 76; U. S. v. Hartwell, 6 Wall. 395.
“We are not at liberty,” say the court in Alexander v. Worthington, 5 Md. 485, “to imagine an intent, and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting and remodeling with the view of making the letter express an intent which the statute in its native form does not evidence.”
It is only in cases where the language is capable of two meanings, or where, by giving it its literal interpretation, the statute will be inconsistent or ambiguous, that courts resort to the secondary rules of construction to aid in determining the real intention of the legislature. 23 Am. & Eng. Enc. Law, 305; Bidwell v. Whitaker, 1 Mich. 469. Courts cannot except special cases which fall within the mischief of such statutes, and are within the scope of the general terms used. The cases of forcible entry or detainer or of holding over in which no claim of right is made are exceptional, and to hold that the language of this section applies only to exceptional cases arising under the act would be to import something into the statute which is at variance with its evident meaning.
In the case of Hogsett v. Ellis, 17 Mich. 351, 370, this Court recognized the liability of a tenant holding over after notice to quit, or demand of possession, to treble damages under the statute in question. In Shaw v. Hoffman, 25 Mich. 170, the Court intimate that upon a judgment of guilty under section 7959 plaintiff would have been entitled to treble damages as a matter of right. In Howser v. Melcher, 40 Mich. 185, and Hitchcock v. Pratt, 51 Id. 263, the question before the Court was the proper measure of damages under the general term, “all other damages,” used in the section under consideration.
Robinson v. Kinne, 1 Thomp. & C. 60, was an action under a statute allowing treble damages for waste. • The court recognize the rule that prevails in actions for trespass to lands under statutes similar to ours, but say respecting plaintiff's right to increased damages under the statute in question:
CiWe do not see that it was at all material to the case that the defendant claimed to own by another title that portion of the lands on which certain of the trees were cut, and which cutting was found to be waste. The statute in regard to waste does not excuse the defendant from treble damages because he has good reason to believe the land to be his own. The question was whether the locus in quo was in point of fact a part of the dower lands, or whether the defendant was estopped from denying that they were such.”
The case was afterwards taken to the court of appeals, and the rule laid down in the supreme court was approved. 70 N. Y. 147.
The history of this chapter and of this provision fortifies us in the conclusion reached. Sections 1-5, inclusive, of the territorial act of 1828 entitled “ An act to prevent forcible entries and detainers,” authorized an arrest, a fine, a judgment of restitution, and the recovery of treble damages in an action of trespass. Section 6 of the same act provides that when any person shall willfully and with force hold over, or when any person wrongfully and without force by disseisin shall obtain and continue in possession of any lands, and after demand for possession shall refuse or neglect to quit possession, the owner may have restitution. Section 8 provides that the complainant shall be entitled to an action of trespass and to treble damages. 2 Terr. Laws, 660. In 1830 an amendment provided that when any person shall hold over after the time for which demised, or contrary to the conditions of the lease, or after any rent shall have become due and shall remain unpaid for 20 days, if demand for possession shall have been made, and the tenant shall neglect or refuse for the space of 20 days to quit the possession or pay the rent, upon complaint, etc. 3 Terr. Laws, 830. In the Revision of 1838 it was sought by section 6 to embrace the provisions of both section 6 of the law of 1828 and the amendment of 1830, and the words “ willfully and with force” were retained. Rev. Stat. 1838, pp. 490, 492. In the Revision of 1846, however, those words were omitted from the section relating to a tenant holding over. Section 5 of the act of 1828, giving to the “complainant of any forcible entry and detainer” the right to bring trespass and to treble damages, was omitted, and section 8 of the same act, which gave to the complainant under section 6 the right to bring trespass, and to treble damages “from the time of notice given to quit,” was changed so as to be applicable to cases of forcible entries or detainers as well, and incorporated as one of the general provisions of the chapter. Rev. Stat. 1846, pp. 542, 545.
The only other complaint relates to a question of interest. The jury assessed the plaintiffs5 damages at $1,669.62, and in answer to a special question as to what amount they found to be the damages of the plaintiffs for being deprived of, the revenues which might have accrued to them if said defendant had not retained possession, they fixed the sum at $156.54. The court entered judgment for single damages only, and struck out the item of interest. In this, we think, the court erred. eIt appears that the defendant, prior to the notice to quit, had been paying a rental of $780 per year in monthly installments, and that rate was agreed upon as the basis of recovery. There is no good reason why, in determining the damages to which plaintiffs are entitled, the element of interest upon installments of rent from the time they became due and payable under the terms of the agreement, which is taken as the basis of recovery here, should not be considered by the jury. Clearly, any computation which would put
nothing in the place of interest would not give full compensation, and the jury had the undoubted right, under the circumstances, to adopt the legal rate of interest as the measure of damages.
The judgment will be reversed, and a judgment entered here for treble damages, with interest from the date of the verdict below.
Long, Montgomery, and Hooker, JJ., concurred. Grant, J., did not sit. | [
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] |
Grant, J.
Tbe following facts were found by tbe court:
“Tbe plaintiff resides in the city of Grand Eapids, Michigan, and tbe defendant resides in Sioux City, Iowa. February 3, 1893, tbe plaintiff received the following letter from tbe defendant, viz.:
“ ‘Friend, George:
‘“As I am disposing of all my property outside of Sioux City, Iowa, if you can net me $1,000 for my two lots and two and one-half acres, let them go, as I want to get rid of them, and clean up; you to get your commission above that amount. George, you ought to make $500 out of this deal. If not sold within 60 days, I will take it out of the market. Let me hear from you.
“‘Yours respectfully,
“•Frank Hunt.’
“ In response to said letter, on February 4, 1893, plaintiff wrote and mailed a letter to said defendant, stating that he had received his (defendant’s) letter of February 1, and ‘that he had made a mistake of the amount of land he had in the city; that the two lots he spoke about, on the West side, I had been selling for him a year before to Mr. Pressburg, and that all the land he had here was two and one-half acres on Fulton street. If he meant that at $500, I thought I could strike a bargain with him, because I wanted to make a shift for myself; and that I would like to hear from him.’ In response to this letter, plaintiff received the following:
“ ‘ Sioux City, Iowa, February 17, 1893.
“ ‘ George De Jonge,
“ ‘ Grand Rapids, Mich.
“ ‘Dear Sir: In regard to yours of recent date, I forgot that I had sold the two lots you referred to. I believe all I have left now is the two and one-half acres. I will take $500 in cash for it, net.
“‘Yours respectfully,
‘“Frank Hunt,’
“February 21, 1893, plaintiff wrote and mailed a letter in reply to the defendant’s letter of the 17th, stating that he accepted his offer, and inclosed a deed of the property to be made out to him, and suggested that to facilitate matters he send the deed back to the Michigan Trust Company, and that he would pay for it there, as they had been doing business that way before, and asking him ‘if it was the same for him to do so; if he had any objections, he could do different.’ Plaintiff had bought property of the defendant before this, and they had transacted their business through the Michigan Trust Company. Defendant did not answer the said last-mentioned letter, nor did he convey said land to plaintiff, nor did he write that he •wanted the money. Plaintiff was ready and willing to pay the consideration, and called at the office of the Michigan Trust Company for that purpose, within three or four days after he had mailed the said last-mentioned letter, but he did not make an actual tender of the consideration to the defendant. Defendant on the 23d day of February, 1893, sold and conveyed the said property to one Sybrant Wesselius, of Grand Eapids, Michigan, by warranty deed, for $600, which land is described in said deed as follows [here follows the description], which is the same property referred to in defendant’s letters, and which said deed was recorded in the office of the register of deeds for Kent county, Michigan, on the 2d day of March, 1893, in Liber 232 of Deeds, on page 145. Defendant owned no other land in the city of Grand Eapids. If the said defendant had conveyed the said land to the plaintiff, he could have disposed of said land, and made a profit of $1,000. The value of the said property on February 21, 1893, was $1,500.”
Upon these facts, the court found, as the conclusion of law, that the plaintiff was not entitled to recover, and entered judgment for the defendant.
Two questions are presented:
1. Is the contract void, within the statute of frauds, for lack of a description of the land?
2. Did the two letters constitute a valid and binding contract for the sale of the property?
We deem it unnecessary to determine the first question, since the answer to the second is conclusive of the case.
In order to complete the contract, it was necessary that the plaintiff should write an unqualified acceptance of the defendant’s offer. The offer was to sell for $500 cash, net. This meant payment to the defendant at his residence in Iowa. The acceptance requested that defendant send the deed to a party in Grand Eapids, with whom the plaintiff would deposit the money on receipt of the deed. It became, therefore, necessary for the defendant to write another letter in order to close the transaction. It was to be a cash transaction, and plaintiff’s duty was to remit the money, and pay or tender it to him, within a reasonable time after an unqualified acceptance. A response necessitating delay and further correspondence is not an unqualified acceptance. If it had taken weeks instead of days for letters to pass, certainly the defendant would not have been bound to wait, and notify the pro posed purchaser that he must send the money to him at his place of residence, — a statement already in the offer. It does not appear when plaintiff’s letter was received by defendant. We may, however, assume that, in due course of mail, it was received before the sale to Wesselins.
The only authority cited by plaintiff to sustain his position is Matteson v. Scofield, 27 Wis. 671. In that case the plaintiff, residing at Hudson, Wis., wrote a letter to defendant, in Connecticut, accepting his offer for the sale of land; suggesting that he make out a deed and send it to the bank, with instructions, and saying that he suggested this method of making the transfer, as it would save time and expense. The defendant replied that he would come out to Hudson, and attend to the business himself. The court held that it was the undoubted right of the defendant to insist upon payment at his residence in Connecticut; and to have the business personally transacted there, but as he did not so insist, but replied that he would come out to Hudson, the contract was complete. Had the defendant ignored the letter, as was done in this case, a different question would have been presented to the court.
The following authorities appear to sustain this ruling: Sawyer v. Brossart, 67 Iowa, 678; Gilbert v. Baxter, 71 Id. 327; Eggleston v. Wagner, 46 Mich. 620; Whiteford v. Hitchcock, 74 Id. 209; Sands & Maxwell Lumber Co. v, Crosby, 74 Id. 313; Iron Co. v. Meade, 21 Wis. 474; Eliason v. Henshaw, 4 Wheat. 225; Johnson v. Stephenson, 26 Mich. 63.
Judgment affirmed.
The other Justices concurred. | [
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McGrath, 0. J.
Upon rehearing, after the fullest consideration, we find no reason to change the former opinion. 96 Mich. 619. The principal question in the ease is whether a naked, pre-existing debt,is such a consideration or payment for the transfer of a stock of goods as will defeat replevin by the original vendor, who sets up fraud in the purchase from him.
The rule, as laid down in 16 Amer. & Eng. Enc. Law, 837, is that a pre-existing debt is not such a consideration as will sustain the plea of “ Iona fide purchaser for value,” except in the case of negotiable paper. The cases cited will be found to fully support the text. Other cases will be found collected in Tied. Sales, § 329; Hil. Sales, p. 332; and Benj. Sales (6th ed.), p. 448. Mr. Tiedman says:
“ Although there are a few cases which maintain that a pre-existing debt is a sufficient consideration, the better opinion is that it is not sufficient, because there is no parting with value in reliance upon the title to the goods thus acquired, and that an attaching or other creditor is not a bona fide purchaser.”
Some of the cases would seem to make a distinction between a receipt of property in payment of a pre-existing indebtedness, and a receipt in satisfaction or discharge of such debt, — that a satisfaction can only result from an agreement to that effect; but payment operates as a discharge or satisfaction of the debt, and in either case the failure of title revives the debt.
The case of Dickerson v. Tillinghast, 4 Paige, 215, was a bill to foreclose a mortgage given by Catharine Tilling-hast. Defendant Charles T. was the son of the mortgagor, who received a conveyance of the premises from his mother, subsequent to the mortgage,. the consideration for which was a debt due the son from his mother. Baze v. Arper, 6 Minn. 220, was a case of where the only consideration for a deed of land was a precedent debt. Root v. French, 13 Wend. 570, was a case of where a grocer had assigned his stock of goods to indemnify the assignee against liability as indorser for the assignor.
No distinction is made between a conveyance in payment of a debt and one given as security therefor. This Court has, in a number of cases, recognized the rule as applicable to conveyances as security for a pre-existing debt. Boxheimer v. Gunn, 24 Mich. 372; Kohl v. Lynn, 34 Id. 360; McGraw v. Solomon, 83 Id. 442; Edson v. Hudson, 83 Id. 450. But it is insisted that under our authorities this is the limit of the rule, and Bostwick v. Dodge (decided in 1844), 1 Doug. 413; Outhwite v. Porter (1865), 13 Mich. 533; and Hanold v. Kays (1887), 64 Id. 439, — are cited to support that contention.
In Bostwick v. Dodge, Bostwick gave his note to one Hooper, who indorsed it over to Dodge in payment of a debt due from Hooper to Dodge. The Court in that case say:
“ It has been long and uniformly held that the ex-tinguishment of a pre-existing debt was as valid and sufficient a consideration for the transfer of a negotiable instrument as the payment of money, or the delivery of any species of property whatever. That the rule is one of great convenience and necessity, even, to a commercial community, is too obvious to require illustration, and its adoption in no way contravenes the principles of natural justice.”
In Outhwite v. Porter, Porter held notes made by one Can tine. Outhwite bought out Can tine’s business, and Porter surrendered Cantine’s notes, taking from Outhwite the latter’s notes. Although Bostwick v. Dodge is cited, the Court held that Cantine had been released; that it was a case of novation by the substitution of one debtor for another, by the assent of the three parties.
In Hanold v. Kays, K. was indorser upon certain outstanding notes made by one 0. In consideration of K.’s agreement to take up and pay said notes, 0. conveyed certain land to K, The Court say that K. had paid the notes before notice, and that such payment formed a sufficient consideration for the deed. It had been repeatedly held by this Court that an . agreement to pay — a mere executory contract — was not a sufficient consideration, but that payment actually and in good faith made before notice entitled the' vendee to protection, and such is the universal rule. In that case, however, the Court use language unnecessary for the determination of that case, and regard Bostwick v. Dodge as authority for saying that one who takes a deed of land in absolute payment of a debt due him is a Iona Me holder for value. From an examination of the authorities, however, it will clearly appear that the rule laid down in Bostwick v. Dodge is an exception to the general rule, and the difficulty with the Hanold case is that it substitutes a recognized exception for the rule.
In Currie v. Misa, L. R. 10 Exch. 153, Lord Coleridge, in a dissenting opinion, — his contention being that the exception did not apply to a mere check in the hands of a holder for value, — says:
“It is too late to dispute that a pre-existing debt, due to the transferee of a bill, entitles him to all the rights of a holder for value. But it seems equally clear that this is an exception to general rules,- — an extraordinary-protection given to such a holder on grounds of commercial policy only, and in order to favor the unrestricted use, as currency, of negotiable,instruments.”
In Whistler v. Forster, 14 C. B. (N. S.) 248, it is saidr
“ The general rule of law is undoubted that no one-can transfer a better title than he himself possesses. To this there are some exceptions, one of which arises out of the rule of the law merchant as to negotiable instruments. These, being part of the currency, are subject to the same rule as money; and if such an instrument be transferred in good faith, for value, before it is overdue, it becomes available in the hands of the holder, notwithstanding fraud which would have rendered it unavailable in the hands of a previous holder.”
In Bay v. Coddington, 5 Johns. Ch. 54, the exception is recognized, but the court refused to apply the principle to that case as made. In Dickerson v. Tillinghast, supra, the case of Bay v. Coddington was referred to as sustaining the rule adopted; but, although Bay v. Coddington has been overruled, the rule of Dickerson v. Tillinghast remains the law of that state. The cases in support of the rule excepting commercial paper are collected in 2 Rand. Com. Paper, §§ 461-465, and the subject is referred to in 2 Amer. & Eng. Enc. Law, 392.
There are authorities which refuse to recognize either rule or exception, but the rule is supported by the great weight of authority. The serious conflict is as to the recognition of the exception in favor of commercial paper. Our own Court, in Bostwick v. Dodge, has determined that question; and the rule there laid down must be regarded as an exception to the general rule of law, and cannot be carried beyond the necessity that gave rise to it. The doctrine of that case has no application to the transfer of a non-negotiable instrument. In Whistler v. Forster, supra, the court refused to apply it, for the reason that the paper was not indorsed until after notice.
The term “ bona fide purchaser” is borrowed, from equity jurisprudence, and must be interpreted accordingly. Mr. Pomeroy, in his Equity Jurisprudence, says:
“ There must be actual payment before any notice, or what in law is tantamount to actual payment, — a transfer of property or things in action, or an absolute change of the purchaser’s legal position for the worse, or the assumption by him of some new, irrevocable, legal obligation.” Sections 747, 749-751.
It is well settled by our own Court that one must pay as well as purchase. Thomas v. Stone (1843), Walk. Ch. 117; Dixon v. Hill (1858), 5 Mich. 404; Warner v. Whittaker, 6 Id. 133; Blanchard v. Tyler, 12 Id. 339; Stone v. Welling, 14 Id. 514; Matson v. Melchor, 42 Id. 477.
In Blanchard v. Tyler, one Hearse claimed to be a Iona fide purchaser. He paid nothing to Tyler. Tyler was ■owing him about $7.50, which was to apply on the purchase, and he gave a non-negotiable note for $600, less $7.50. The note was' to be paid by turning out other notes, and this was not done until some time afterwards. The Court held that H‘. was not a Iona fide purchaser; that whatever he paid was after notice, and such payment was made in his own wrong.
In Stone v. Welling, Stone filed a bill to foreclose a mortgage given by Hart, making Welling (a subsequent purchaser) a party defendant. The consideration for the deed from Hart to Welling was an agreement by the latter to give up to the former certain judgments and notes held by Welling against Hart, and to release the latter from an existing indebtedness. Mr. Justice Cooley, for the Court, says:
“ But the question in this case is whether there was an actual payment of value for the land by Welling before notice of complainant’s mortgage; and, to make the agreement amount to such a payment, jt must at least have been one which Hart, at the time, could have enforced as a discharge against Welling & Root. The evidence shows that the agreement was wanting in the consideration agreed upon, since the land covered by the deed had previously been incumbered by the mortgage to complainant. There was no impediment, therefore, to Welling & Root proceeding in the collection of their demands against Hart & Williams, if the facts had all been made kno'wn to them.”
In Chadwick v. Broadwell (1873), 27 Mich. 6, the logs had been transferred to Chadwick in payment of the balance due on the stumpage contract between Chadwick and Lester; but the Court intimated that Chadwick had paid nothing, and that, should the purchase fail by reason of the fact that Mrs. Broadwell insisted upon her legal rights, the debt against Lester would remain.
In Battershall v. Stephens (1876), 34 Mich. 68, 74, Mr. Justice Grates refers approvingly to the rule that, in case the consideration is merely a past indebtedness, the purchaser is not entitled to be regarded as a Iona fide purchaser.
In Boxheimer v. Gunn, 24 Mich. 372, Chief Justice ■Ohristiancy uses this language:
“The defendant’s answer, as we have already seen, alleges the conveyance to Sutton to have been made to him merely as security for a precedent debt, and does not claim that any other consideration was paid or agreed to be paid; or that any time was to be given or had been given; or that the form of the debt was changed; or that he had relinquished any remedy in consideration of the •conveyance; or, finally, that his own position would not be equally as good to-day, if the conveyance should turn cut to be utterly valueless, as it was before the conveyance. He has not, therefore, by his answer, placed himself in •the position of a bona fide purchaser or incumbrancer for value, with equities superior to those of the complainant, though it should be admitted that he acted in good faith, and without notice;” citing Stone v. Welling, 14 Mich. 514.
It certainly could not have been contended, in view of the authorities referred to, that an unexecuted agreement to pay would constitute one a bona fide purchaser.
I do not desire to be understood as saying that an agreement to extend the time of payment may not be such a consideration as will support a mortgage given for a preexisting debt, nor that the release of security, or perhaps the surrender of evidences of indebtedness, may not be a sufficient present consideration to uphold a conveyance made in payment of a pre-existing debt. In the present case there was no change in the form of the debt.
It is urged that the vendor had other property out of which the purchaser might have made his debt. It is not necessary to pass upon that question. The transfer was made September 29, and on the 4th of October the vendee was notified of plaintiffs’ claim. There is no evidence of any change in the debtor’s circumstances respecting such other property, if he had any, between those dates. Under the rule laid down in Stone v. Welling, the creditor could then have avoided the discharge or release of the debt, to the extent of the failure of title. As to the rule that the purchaser is entitled to protection only to the extent of payments actually made at the time of the notice, see, also, Dickinson v. Wright, 56 Mich. 42, and Sheldon v. Holmes, 58 Id. 138.
We did not deem it necessary in the former opinion to discuss other questions raised by the record, and do not now.
The judgment must be -reversed, and a new trial ordered.
Long and Grant, JJ., concurred with McGrath, C. J.
See Mayer v. Heidelbach, 123 N. Y. 339, and cases there cited. | [
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] |
Long, J.
On August 28, 1893, the common council of the city of Niles passed the following resolution;
“ Resolved, that a meeting of the freeholders of the city ■of Niles be called to meet at the common council rooms on September 18, 1893, polls to open at 3 p. m. and close at 8 p. m., to vote upon the following proposition: 'That the city council be authorized to borrow, on the faith and credit of the city of Niles, a sum not exceeding $32,-■000, to be used and expended for the purpose of constructing a new system of waterworks, to be owned and controlled by the city, for the extinguishment of fires and for ■other purposes.”
This resolution was voted upon at the meeting so called, and was by the mayor, who presided, declared carried by •a vote of 200 in favor, and 42 against.
This bill is filed for the purpose of enjoining and restraining the city of Niles, its officers, agents, servants, and attorneys, from issuing, signing, negotiating, or selling any of such bonds of said city in the sum of $32,000, or any part thereof. The complainant is a resident freeholder and tax-payer of the city, and sets out in his bill that such proceedings are void, and that the amount authorized to be raised is in excess of the amount authorized under the ■charter of the city, but that the common council is now about to issue said bonds and sell them to third parties. It is further alleged that the assessed valuation of the property in the city, as shown by the last preceding tax roll, — that is, the tax roll for the year 1893, — is the sum of $1,697,855; that at a meeting of the common Council held on the 19th day of June, 1893, it voted to raise, levy, and collect, by taxation of the property in said city, the amount of 1 per cent, of such valuation, and in pursuance of such vote the common council did thereafter, and before the said 28th day of August, cause such amount of 1 per cent, of said assessed valuation to be duly assessed and levied against such property in said city, and is now collecting such amount of taxes of said property; and that the vote of the -freeholders authorizing the borrowing of said $32,000 is void, as being in excess of the power of such freeholders. Many other reasons are set up in the 'bill why the action of the council and of the freeholders \is void, and why the council should be restrained, but which it will not be necessary to notice, from the view we "take of the principal question. The city answered the >bill, proofs were taken, and the case fully submitted to the court below on pleadings and proofs. The bill was ■dismissed. Complainant appeals.
No questions of fact are raised in reference to this main ■issue; but it is contended that under the charter the coun•cil, by the vote of the freeholders, had power and authority to raise 2 per cent, over and above the amount of the 1 per cent, already voted and raised for other purposes. The only provisions of the charter which, it is claimed, -confer the power, are as follows:
“Sec. 30. The common council shall have power and ■ authority to levy and collect such amount of taxes on all real and personal property within the limits of said city as they may deem necessary to defray the expenses thereof, not to exceed one and one-half per cent, on the valuation 'thereof, exclusive of the cost of collecting the same, in ■ any one year, and shall have power and authority, at any time previous to the collection of the city tax for any one year, to borrow a sum not exceeding one-third of the amount •of taxes levied for city purposes that year, and to pledge the faith and credit of the city therefor; but they shall have no power and authority to levy, assess, or collect any additional tax the same year, nor to contract debts, incur -liabilities, or make expenditures in any one year which shall exceed the revenue for the same year, unless first authorized so to do by a majority vote of the freeholders of said •city at a public meeting thereof, called and conducted as hereinafter provided. Such meeting may be called by the ■common council by a resolution appointing a time and place in said city for holding the same, and setting forth the purpose of the proposed expenditure, the amount proposed. to be raised, and whether by tax or loan. Such resolution shall be passed, and published in one of the newspapers of the city, and copies thereof posted in five -of the most public places in each ward of the city, at least .14 days before the meeting at which the vote is to be taken. The .mayor of the city, or, in his absence, the recorder, shall preside at such meeting, and none but freeholders of' the city shall be allowed to vote. Whenever authorized by a majority vote of a freeholders’ meeting called and conducted as aforesaid, it shall be lawful for the common council to levy, assess, and collect such additional tax, or-to borrow on the faith and credit of said city such sums-of money, as may be determined at such meeting, and for-that purpose to issue the bonds of the city, signed by the mayor and countersigned by the recorder, in such form as • the common council may direct, and payable at such time, and. bearing such interest, not exceeding the rate of seven per cent, per annum, as the common council may determine. Such ■ bonds, when authorized and executed as aforesaid, may be-sold by direction of the common council, but not below their par value: Provided, that not more than two such, meetings may be called in any one year, the second of which shall be called only by a vote of three-fourths of' the members-elect of the common council. The amount, that may be voted or raised in any year under the provisions of this section shall not exceed two per cent, of the ■ assessed valuation of the property in the city, as shown by the last preceding tax roll made therein.”
“Sec. 36. All moneys and taxes raised, loaned, or appropriated for the purposes of any particular fund shall be-paid in and credited to such fund, and shall be applied to-the purposes for which such moneys were raised and received, and to none other; nor shall the moneys belonging; to one fund be transferred to another fund, or be applied to any purpose for which such other fund is constituted,, except when there shall be a surplus in any general fund, at the close of any fiscal year. In such case, the surplus-may be transferred to the sinking fund-, should there be a deficiency in that fund; otherwise the council may apply such surplus as they shall deem proper.”
The classification of the general funds is in section 31 of the charter, the seventh fund being “water fund, for-defraying the expenses of the public water service,” and the eleventh fund being “interest and sinking fund, for-the payment of the public debt of the city and the interest thereon.” The learned court below filed a written, opinion, in which he said:
“A question which, to the mind of the court, presents greater difficulty in its solution than any of those which have so far been discussed, arises from the peculiar phraseology of the concluding portion of section 30 of the city charter,” — quoting from section 30, as above.
The court then continues:
“It appears by the proofs taken in the case that the city council had already voted to raise an amount equal to 1 per cent, of the assessed valuation of the property in the city for defraying the ordinary city expenses, and, if this sum of $32,000 were to be added to the sum raised by taxation, these two sums would amount to considerably more than 2 per cent, of the valuation of the property in the city. The city attorney, who drafted the section of the charter under, consideration, contends that by this language it was intended that there should not be voted or raised by a vote of the freeholders of the city a sum equal to more than 2 per cent, of the taxable property in the city in any one year. I was, however, very strongly impressed cn the argument of this case with the view that the legislative intent must be held to be that no amount which should exceed 2 per cent, of the valuation of the property in the city should be raised by tax or loan in any one year, but on further examination and reflection I am led to doubt the correctness of this view. The fact that the city council could, without a vote of the freeholders, levy a tax equal to one and one-half per cent, of the assessed valuation of the property in the city, certainly lends some support to the theory of counsel for defendant, and after a careful examination of this section I am led to the conclusion that the word ‘or5 in the phrase ‘voted or raised5 should be read as though it were ‘and,5 and that this prohibition was intended to apply only to such sums as should be voted by the freeholders at a public meeting, as provided in those parts of the section immediately preceding the part under consideration.”
If we concede the rule of interpretation of this statute to be 'as liberal as claimed by the trial court, yet we must hold that it is not open to the construction placed upon it. It is plain that there could not be borrowed a greater sum than could be raised in any one year by taxation.' Unless this be so, there can be found no limitation in the charter upon the power of the freeholders. It is evident that it w.as the legislative intent to place a limit upon the amount that the freeholders could vote, as well as upon the amount that the council could vote. The limitation is placed upon the council of one and one-half per cent.,, and in the same section it is provided that “the amount that may be voted or raised in any year under the provisions of this section shall not exceed 2 per cpnt. of the assessed valuation of the property in the city, as shown by the last preceding tax roll made therein.” If, as contended by the court below, the word “or” should be construed as “and,” the evident meaning would then be that the aggregate of all debt and tax to be put on the roll in any year should not exceed the 2 per cent., as it is provided that that must be the limit “under the provisions of this section.” The word “ raised ” means raised by taxation. Board of Supervisors v. Warren, 98 Mich. 146. It seems clear to us that no amount of authorities could make the meaning clearer than the language of the section itself makes it. 3
We are satisfied that the council has no power to issue the bonds provided for, and the decree of the court below must be reversed, and a decree entered here in favor of complainant, as prayed in the bill.
The other Justices concurred. | [
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Grant, J".
May 1, 1889, the defendant and his brother George executed a lease of the first floor and basement of that portion of the McMillan brick building known as “No. 7 Port street,” in the city of Detroit, to E. J. Roos .& Co., “for the purpose of a restaurant and eating house, and, if desired, a first-class and at all times well-regulated bar,” for the period of five years. All improvements and alterations which the lessees desired and the lessors assented to were to be made at the expense of the lessees. No assignment, releasing, or subletting was permitted without the written consent of the lessors indorsed on the lease. Roos & Co. made extensive alterations, and put in expensive fixtures. Roos & Co. subsequently transferred all their rights in the improvements and leasehold to Roth-well & Co., who transferred them to the plaintiff. No such assent as the lease provided for was obtained for these transfers. There was evidence of a verbal assent. The business, it appears, was not prosperous; the rent was largely in arrears; and in July, 1893, the lessors commenced summary proceedings to recover against Boos & Co., the plaintiff, and her husband, and recovered judgment, which was appealed to the circuit and to this Court. 100 Mich. 341. The lessors commenced new proceedings in December, 1893, to recover possession, in which they again recovered judgment, under which a writ of restitution became issuable January 5, 1894. Mrs. Felcher then voluntarily surrendered possession to the lessors. Meanwhile Mrs. Felch'er and her husband threatened to remove the fixtures, whereupon the lessors filed a bill in chancery, alleging that these fixtures were permanent, and constituted a part of the freehold, and prayed for a temporary and permanent injunction against their removal. A temporary injunction'was granted, and was in full force when the Felchers surrendered possession. No answer was filed in that suit, and, after possession was surrendered, the suit was discontinued. On Friday, January 26, demand was made by the plaintiff for the possession of the fixtures. Defendant referred plaintiff’s attorney, who made the demand, to his attorney, Mr. Gray, saying that whatever he said would be all right. Mr. Gray asked for a list of the articles demanded, which was furnished. The evidence on the part of the plaintiff was to the effect that Gray promised an answer by 2 o’clock that afternoon. Mr. Gray testified that he promised to do his best to give an answer by that time. The next forenoon plaintiff commenced this action of trover for the conversion of the property. On the same day (whether before or after the writ was served does not appear) Mr. Gray wrote a letter to plaintiff’s attorney, giving reason for delay in sending an answer, and promising an answer on the following Monday. Monday Mr. Gray replied, stating that Mr. McMillan had no-objection to the removal of the articles enumerated in the list except the sewers, the basement flooring, and all pipes and wires under the flooring, the iron post's supporting the weight of the building, and the partition, door, and entrance leading out to Fort street; also that she might remove the partition, door, and entrance if she would deposit with one Gordon W. Lloyd, architect, $75 as a guaranty to close the entrance, and replace the foundation, etc., in the same condition that it was when the store was ¡eased to Roos & Co.; also that she might remove the flooring, sewer pipes, and all matter excepted above, except the partition and entrance to Fort street, if she would deposit $350 with Mr. Lloyd as a guaranty to replace the sewers, floors, etc., in proper condition as when the same was leased to Roos & Co.; and also that she might remove the two refrigerators on the ground floor, which formed the front windows on either side of the door, if she would deposit with Mr. Lloyd $100 as a guaranty to replace the spaces with French plate glass, similar to the ones removed. The letter further stated that the offer was made without any concession of her right to remove the articles designated.
The situation of the premises before and after the lease and improvements were made is described by Mr. Lloyd, who was familiar with them, as follows:
. “ There had been a cement floor, in good condition, with planks laid over. The new flooring was made as follows: The front two-thirds of the cellar was excavated about a foot, the old cement flooring being removed. A bed of concrete was first laid; then a bed of cement; and then into the cement were laid the so-called ‘marble flooring/ which consisted of square blocks of tile made of baked cement. The concrete and cement made a homogeneous mass. The so-called ‘tiling* might be removed, but would be so broken in the removal as to be of no value. Originally, there was no entrance to the cellar from the street. The improvement consisted in making such entrance, by building a series of stone steps leading about six feet out upon the walk. This stairway was protected from the street by brass railing. The sides and ceiling of the entrance, the lower part of which was called the 'vestibule/ was constructed thus: Small tablets of tiling, two inches square, were laid in cement. The tablets could not be removed without removing part of the cement. The tablets, if unbroken and cleaned of cement, would have some value, but probably would be broken in removal. There were two partitions across the basement, besides the partition forming part of the vestibule. The latter was constructed of wood and art glass, fastened at the bottom into the concrete, and above to the main joists of the building. If this were removed, the basement would be exposed to the street. The other partitions consisted of studding, laid in the concrete, and fastened to the joists above. The studding was covered by so-called ' marble slabs/ which consisted of blocks of cement marbleized. The upper part was covered by art glass. All the partitions were built in the same way as ordinary partitions between rooms. The so-called ' marble slabs' were fastened in place by screws, and probably would be greatly broken in removal. They would be valueless unless unbroken and to be used in a place of like size. The sewers were all constructed below the concrete flooring, and it would cost more than they were worth to dig them up. The urinals, closets, and wash basins were constructed and connected in the usual manner. The three nickel-plated columns were iron columns, supporting the ground floor, and were put in place of wooden columns, previously there. The bar and counters were imbedded in cement, and firmly fastened in place. The refrigerators in the basement were built into the cement, and those on the ground floor were placed in the front windows. The lower plate glass was removed, :and the refrigerators moved into place, the front glass of the refrigerator forming the window. If they'were removed, the ground floor was open to the street. The ceiling consisted of plastering of the usual kind. The gas pipes were inclosed in the walls and ceiling, and chandeliers were attached in the usual way.”
The evidence on the part of the plaintiff tended to show that these fixtures could be removed without injury to the building. The court directed a verdict for the defendant.
The defendant has three good defenses to the action:
1. Nearly all the articles were permanently attached to the freehold, and became fixtures, under the rule in O’Brien v. Kusterer, 27 Mich. (2d ed.) 289, and authorities •cited in the note. There is nothing in the lease nor in the subsequent transactions to show that the parties intended to treat these fixtures as personal property. The verbal or written assent by the lessors to the transfer of the lease indicates no such intention. The lessees chose to remove the pillars, the partitions, the sewers, the cement floor, ■and to replace them by others which they considered better suited to their business. If they chose to replace wooden pillars with iron ones, plate-glass fronts and partitions with .refrigerators and mirrors solidly built in the partition walls, and to take up the sewers and floors, and replace them with others better and more expensive, the new ones did not thereby become trade fixtures, subject to removal by the tenant. The law does not permit tenants to remove ■fixtures which are built into the building and become a part of it. This case is nearly identical in its facts with "those in O’Brien v. Kusterer, and further comment cannot make it plainer. This might not apply to the chan■deliers and such articles as are temporarily attached, and can be removed by unscrewing, the removal of which would not mar or injure the walls or partitions; and by the letter of Mr. Gray full permission was given to remove :these.
2. Defendant was not guilty of conversion. Mr. Felcher -testified that in December, when he was attempting to remove the property, Mr. McMillan and his attorney notified him that Mr. McMillan claimed it as part of -the realty, and that, should he persist in the attempt to remove it, McMillan would cause his arrest. The chancery suit was immediately instituted, and the court granted a preliminary injunction. The Felchers neither answered nor moved for a dissolution, and this suit was still pending when the demand was made and this action com menced. Mrs. Felcher continued in the absolute possession and control of the property, except that she could not tear it out and remove it. The institution of the chancery suit was not an act of conversion. There can be no conversion while the party is in the actual possession of and using the property for the purpose and in the place in which it was intended. Lacey v. Beaudry, 53 Cal. 693; England v. Cowley, L. R. 8 Exch. 126. The reason of this is more apparent from the fact that Mrs. Felcher had it in her power to put an end to both the chancery suit and the suit to recover possession, by paying the amount of rent due. She was entitled by the statute to five days after final judgment within which to make this payment, which time did not expire until January 5. It is certain, therefore, that there could be no conversion until after the demand was made. Demand and refusal, however, do not constitute conversion, but are only evidence thereof. Daggett v. Davis, 53 Mich. 35. At this time there was no-refusal, and the chancery suit was still pending, in which the rights of the parties might have been determined. The defendant had done nothing to change the status of the property, and his acceptance of the keys of the building and possession did not affect the status of the suit, or constitute a conversion of the property.
3. We need not discuss the rights of the parties if the-plaintiff had been ejected under a writ of restitution. She voluntarily surrendered possession, and the defendant was. entitled to a reasonable time to make reply to such demand. Flannery v. Brewer, 66 Mich. 509. The reply was made within 24 hours, Sunday excepted, after the demand was made. This must be held a reasonable time, unless the promise to reply in the afternoon takes it out of the rule. We think it unreasonable to hold that the failure to reply at the precise time amounted to a refusal. The reason given for not replying within so short a time was valid. The attorney was entitled to reasonable time to see and consult his client, and determine what answer ■to give. The answer secured to the plaintiff property to which she was not entitled, as well as to which she might be entitled. Defendant was rightfully in possession of the property by the voluntary act of the plaintiff, and the conditions he required for its removal were reasonable and legal. The injunction suit having been discontinued, the plaintiff, after demand, will still be entitled to remove the ■chandeliers and other articles of personal property, and, if •defendant refuse, he will be liable in trover.
This disposal of the case renders it unnecessary to discuss the other questions raised.
The judgment is affirmed.
McGrath, C. J., Long and Montgomery, JJ., concurred. Hooker, J., did not sit. | [
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Beasley, J.
Plaintiff-appellant sued defendant Vance for damages arising out of an automobile collision on January 18, 1974. Plaintiff obtained personal service on defendant and an attorney, retained by garnishee-defendant Travelers Insurance Company (Travelers), filed an appearance and answer on defendant’s behalf. Plaintiff submitted interrogatories to defendant and, receiving no answers, filed a motion to compel answers. Counsel for defendant then filed a motion to withdraw, on the basis that defendant was not cooperating, which motion was granted on September 18, 1975.
Then, plaintiff, Cloud, and garnishee-defendant, Travelers Insurance Company, went their separate ways for a time. Travelers filed a declaratory judgment action against defendant Vance, seeking a ruling that it had no further obligation under the insurance policy it had issued to Vance. On March 15, 1977, Travelers obtained a declaratory judgment relieving it of any liability under the insurance policy heretofore issued to defendant Vance. Plaintiff was not a party to the declaratory judgment action and claims no notice was given to him until after the declaratory judgment had been entered.
On April 26, 1977, plaintiff obtained a default judgment against defendant Vance in the sum of $25,000. Plaintiff sought collection from Travelers, by way of a writ of garnishment, on the liability insurance policy. Travelers filed disclosure denying liability to defendant Vance and moved for summary judgment on the garnishment.
Although unclear from the record, it appears that this motion was founded on GCR 1963, 117.2(1) and (3), that plaintiff failed to state a claim upon which relief could be granted, and that there was no material question of fact, therefore, defendant was entitled to judgment as a matter of law. On June 13, 1978, the trial court granted defendant’s motion, noting that, based on defendant Travelers’ declaratory judgment against Vance, Vance was uninsured at the time of the accident in question. Plaintiff now appeals as of right.
The question is whether plaintiff is precluded from a hearing on the merits regarding any obligations owed by garnishee-defendant, Travelers Insurance Company, to plaintiff under the insurance policy issued to defendant Vance. We do not believe that plaintiff is precluded from such a hearing. We hold that summary judgment was improvidently granted, and must be set aside.
Defendant Travelers argues that the declaratory judgment which it obtained against defendant Vance relieved it from any and all obligations on the insurance policy issued to Vance, and that plaintiff cannot now raise this issue. We do not agree.
Initially, we note that the plaintiff in this case had a substantial interest in the proceeds of the insurance policy between defendant Travelers and defendant Vance. When plaintiff obtained judgment against defendant Vance, plaintiff succeeded to Vance’s right against defendant insurance company, and was entitled to proceed by way of writ of garnishment.
In Flanagan v Harder, the Supreme Court indicated the scope of an injured plaintiffs interest in a defendant’s insurance policy, by stating that the plaintiff had a "substantial interest in the policy” and by allowing plaintiff to have the policy reformed rather than simply determining liability on the policy as it stood:
"The injured person, after judgment and the return of an unsatisfied execution, has a substantial interest in the insolvent’s policy, and should be able to have the policy reformed if necessary, especially where the insurer attempts to deprive the injured party of legal rights by means of a fraudulent release.”
In the recent case of Security Ins Co of Hartford v Daniels, this Court held:
"We believe that Daniels also has an interest in the coverage issue. Although Daniels was barred from joining the insurance companies in the original action, if he were to succeed in that action, he would be entitled to litigate the coverage issue in a subsequent action against the insurance companies. See Meirthew v Last, 376 Mich 33; 135 NW2d 353 (1965). Thus, he has an interest in resolution of that issue.”
Also instructive in this case is Allen v Cheatum, which is another unforgettable Justice Voelker opinion involving a coverage issue where noncooperation by the insured was claimed._
We hold that these cases show that plaintiff had a legitimate interest in litigating the coverage issue with the insurer. Such interest is not limited to situations where the insured is bankrupt or insolvent, as indicated in MCL 500.3006; MSA 24.13006.
Of course, garnishee-defendant argues that if plaintiff is placed in the shoes of the insured, then, under strict logic, his claim is subject to all valid defenses which could be asserted against the insured at the time of the garnishment action. Garnishee-defendant would reason that plaintiff is bound by the default judgment on the coverage issue and that it is res judicata, and further, that plaintiff is collaterally estopped from attacking that judgment.
Defendant Travelers would argue that the prerequisites for res judicata, as indicated in Bousson v Mitchell, are met:
"There are three prerequisites to the application of this doctrine. First, the former action must have been decided on the merits. Second, the same matter raised in the second action must have been decided in the first. Third, the two actions must be between the same parties or their privies.”
We do not so hold. While we would doubt that Travelers’ default judgment against its own insured on the coverage issue can fairly be described as a decision on the merits, we need not decide that issue here because we find that the third requirement for res judicata has not been met.
In this case, plaintiff had an independent interest in the insurance policy from the time of the accident, contingent upon his recovery against the defendant. As we have indicated, we also find that under the circumstances of this case, plaintiff was entitled to notice of the declaratory judgment action brought by defendant insurance company. Similarly, we reject application of the doctrine of collateral estoppel as set forth in City of Mason v Mason State Bank.
Thus, while the declaratory judgment would be a valid defense against defendant Vance, it is not a valid defense against plaintiff. To hold otherwise would give an insurance company an easy out to escape liability to plaintiffs who successfully assert claims against the insured. All such an insurance company would have to do would be to obtain a default declaratory judgment against its own insured in order to escape such responsibility.
We note that defendant insurance company had every right to litigate the coverage issue between it and its insured in the declaratory judgment action. However, under the circumstances of this case, we do not permit defendant insurance company to defeat a possible, known claim against it by plaintiff in a declaratory judgment action processed without either notice to plaintiff or an opportunity to plaintiff to intervene and be heard.
In setting aside the grant of summary judgment in this case, we are merely affording plaintiff a trial on the merits regarding whether or not defendant insurance company is obligated under the terms of the insurance policy with respect to the judgment of this plaintiff against the insured.
Reversed and remanded for proceedings not inconsistent with this opinion.
Meirthew v Last, 376 Mich 33; 135 NW2d 353 (1965).
270 Mich 288; 258 NW 633 (1935).
Id. at 292.
70 Mich App 100, 105; 245 NW2d 418 (1976).
351 Mich 585; 88 NW2d 306 (1958).
84 Mich App 98, 101; 269 NW2d 317 (1978).
63 Mich App 288; 234 NW2d 489 (1975). | [
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"Wiest, J.
Three circuit judges, designated by the presiding circuit judge of the State and sitting en banc in the Kent circuit to hear evidence upon charges preferred by the attorney general, listened to the proofs in open court, adjudged defendant guilty of subornation of perjury and disbarred him from the practice of law.
Defendant reviews by appeal, claiming the finding is without support of credible evidence, and the court was in error in not granting the first motion for a rehearing and in not passing upon his second motion for a rehearing.
The question of defendant’s right to have his second motion for a rehearing determined commands attention and disposition as hereinafter stated.
The second motion for a rehearing set up subsequent statements made by a witness and claimed to disclose error on the part of the judges in weighing the testimony of such witness. This motion was made after the term of office of one of the three judges had expired and the other two declined to pass upon the motion.
The attorney general contends that:
“The two trial judges did not have power to make an order either granting or denying the second motion for rehearing.
“The disbarment statute is 2 Comp. Laws 1929,
§ 13585, as amended by Act No. 171, Pub. Acts 1931. It provides that no disbarment proceedings are held in circuit court. The presiding judge of the State shall appoint three outside circuit judges to ‘hear the evidence in such proceedings and determine the rights. ’
“This is the only statute on the procedure of disbarment cases and it places the jurisdiction of the trial of the case in three circuit judges.”
We do not find any such idea in the statute and cannot join in the misconception of its plain provisions. The mentioned amendment from which the attorney general makes quotation expressly provides :
“Attorneys and counselors may be removed or suspended by the supreme or circuit courts in which they shall be authorized to practice. Proceedings to remove or suspend instituted in any circuit court shall be in the circuit where the accused resides or where he maintains an office for the transaction of legal business or where the misconduct so complained of was committed. Disbarment proceedings are hereby declared to be civil in nature. ’ ’
Charges must be verified and filed with the attorney general who, upon investigation, may file such charges in the proper court. Thereupon the court issues an order for the accused to show cause.
That same act provides:
“When the proceedings brought under this act are held in any circuit court of this State, on the request of the attorney general, it shall be the duty of the presiding judge of said State to appoint three circuit judges of said State to sit and hear the evidence in said proceedings and determine the rights of the parties so complained of. * * * Petitions for reinstatement shall he filed with the court which ordered the disbarment or suspension. * # i<: During the pendency of an appeal the order of the circuit court disbarring or suspending the defendant shall remain in full force and effect unless otherwise ordered by the Supreme Court. ’ ’
The proceedings at bar were had in accordance with the mentioned provisions and an order of disbarment entered at a session of the circuit court for the county of Kent, with the three judges sitting en banc. The proceeding’s were in a court.
Defendant moved the court, upon a showing, to grant a rehearing. The motion was denied by an opinion signed by the three circuit judges and filed in the court.
Defendant made a second motion for rehearing upon an additional showing. At that time the term of office of one of the former sitting judges had expired, and the two other judges refused to pass on the motion, stating in a letter to defendant:
“By the order of disbarment made October 10, 1935, by the disbarment court, that court ceased to exist. It, therefore, has not the power now to make an order either granting or denying your motion. ’ ’
Defendant contends for the right to have the second motion heard and decided. The motion had bearing upon the former testimony of a witness, essential to support the order of disbarment, and it deserves consideration and judicial determination. The court in which the proceedings were had has not ceased to exist. That court is still functioning as the circuit court for the county of Kent.
Aot No. 171, Pub. Acts 1931, provides that, should defendant apply for reinstatement the presiding judge of the State shall, in all cases, if possible, appoint the same judges who sat in the original proceedings.
It would be strange, indeed, to leave the condemned without remedy, otherwise open, because the term of one of the three judges had expired, or even if the terms of all three had expired. Judges may pass from the bench but the court of which they were officers continues with full power to function, and this is true in the instance at bar.
The presiding circuit judge may designate another circuit judge to sit with the two remaining circuit judges.
Defendant has a right to have his motion passed on in circuit court and the proceedings thereon are remanded to the circuit court for consideration and determination, with right of appeal by defendant, in case of denial of the motion, with the record now here supplemented by a record of disposition of the motion for rehearing.
North, C. J., and Fead, Butzel, Bushnell, and Sharpe, JJ., concurred. Potter and Toy, JJ., did not sit. | [
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] |
D. C. Riley, P.J.
On June 13, 1973, an action was commenced by plaintiffs, Woodrow Ingram and his wife Lottie, for injuries each had sustained when their automobile collided with a vehicle owned by defendant W. J. Hightower and operated by defendant Danny McCastle, both uninsured. The Secretary of State intervened as a party-defen dant under MCL 257.1108; MSA 9.2808, on the individual defendants’ behalf.
While the matter was pending, plaintiff Lottie Ingram died, apparently from causes unrelated to the automobile accident. The cause of action was continued by plaintiff Woodrow Ingram on his own behalf and as administrator of his wife’s estate.
On June 3, 1977, a consent judgment was entered in favor of the estate of Lottie Ingram and against the individual defendants in the amount of $40,000, of which $20,000 was paid by the Secretary of State out of the Motor Vehicle Accident Claims Fund.
On June 7, 1977, a judgment of $24,749.75 was entered for plaintiff (hereinafter the term plaintiff shall refer to Woodrow Ingram in his individual capacity only), of which all but $950 was for costs related to his wife’s injuries. Plaintiff moved to compel payment of the judgment on August 22, 1977. This motion was granted because the intervening defendant had failed to comply with the requirement of MCL 257.1107(2); MSA 9.2807(2), that objections to payment must be made within 30 days of receipt of an application for payment. The intervening defendant appeals as of right from this decision.
Intervening defendant first asserts that it has a valid defense to payment since it has already paid the full amount of damages required by law.
The pertinent statute provides:
"(1) In respect to applications under this act for payment of damages arising out of motor vehicle accidents occurring in this state on or after January 1, 1966, the secretary shall not pay out of the fund, (a) more than $20,000.00, exclusive of costs, on account of injury to or the death of 1 person, and, subject to such limit for any one person so injured or killed, not more than $40,000.00, exclusive of costs, on account of injury to or the death of 2 or more persons in any one accident; and (b) more than $10,000.00, exclusive of costs, for loss of or damage to property resulting from any one accident.” MCL 257.1123(1); MSA 9.2823(1).
Thus, the Motor Vehicle Accident Claims Fund is not liable for more than $20,000 for the injury or death of any one person. The damages attributable to physical injury may include medical expenses, loss of consortium, etc. See Dillon v Secretary of State, 61 Mich App 588; 233 NW2d 96 (1975). However, once the statutory limit is met with regard to one person, no other person may recover separately from the Fund. Dillon, supra, 591.
In the instant case, a consent judgment awarded $40,000 to the estate of Lottie Ingram for her mental anguish, pain and suffering and loss of earning capacity, $20,000 of which was paid by intervening defendant out of the Fund. Twenty thousand dollars is the compensation limit under existing law for injuries attributable to a single person. Therefore, plaintiff may not recover the $23,799.75 of the damages awarded him individually for his wife’s injuries.
Intervening defendant also claims that it is not liable for the remaining $950 of the total $24,749.75 damages awarded to plaintiff for his own injuries.
Under MCL 257.1122; MSA 9.2822, the Secre tary of State may set off against a judgment any amounts received by a party under uninsured. motorist coverage. Plaintiff acknowledges that he has received payment from Allstate Insurance Company in the amount of $1,900. Once this amount is applied against plaintiffs award of $950, the intervening defendant has no further obligation to pay plaintiff.
Of course, the proceeding discussion is superfluous if intervening defendant is barred from asserting its claim based on noncompliance with the objection procedures, for, although the lower court found intervening defendant’s claim meritorious, it held that its protest was precluded by its laxity under MCL 257.1107(2); MSA 9.2807(2).
That statute provides a time limit for the filing of objections to payment.
"(2) Where an application is made under this section, the secretary, at any time within 30 days of the receipt of the application, may give written notice to the applicant of any objection to payment of such judgment or any part of it. Where the secretary gives the notice the applicant may apply to the court entering judgment for a finding or determination in respect of any matter in connection with the application for payment out of the fund.” MCL 257.1107(2); MSA 9.2807(2).
However, MCL 257.1123(2); MSA 9.2823(2), states that the Secretary of State may recover any amount paid from the fund in excess of the autho rized amount — here $20,000. This right is not subject to any time limit.
When there are two acts, as here, one general and one specific, the specific statute must be viewed as an exception to the general rule. Flint Board of Education v Williams, 88 Mich App 8, 15-16; 276 NW2d 499 (1979). We hold, therefore, that where an issue of excess payment exists, the Secretary of State is not bound by the 30-day rule but may assert the defense of the Fund’s limited obligation to pay at any time.
Under MCL 257.1123(1); MSA 9.2823(1), the intervening defendant was not obligated to pay anything on the June 7, 1977, judgment in favor of plaintiff, because the intervening defendant had already paid the $20,000 maximum for injuries suffered by any one person. Since this amount is the absolute statutory limit, it did not waive this defense by failing to notify plaintiff of it within 30 days of plaintiff’s application for payment of the judgment. The lower court’s order recognizing a waiver and compelling payment must be reversed.
Reversed and remanded for proceedings consistent with this opinion.
No costs, a public issue being involved.
"(2) No payment shall be made out of the fund in respect to a claim or judgment for damages or in respect to a judgment against the secretary, of any amount paid or payable by an insurer by reason of the existence of a policy of insurance or of any amount paid or payable by any other person by reason of the existence of any policy, contract, agreement or arrangement, providing for the payment of compensation, indemnity or other benefits.
"(3) No amount sought to be paid out of the fund shall be sought in lieu of making a claim or receiving a payment that is payable by reason of the existence of a policy of insurance, or in lieu of making a claim or receiving a payment that is payable by reason of the existence of any policy, contract, agreement or arrangement, providing for the payment of compensation, indemnity or other benefits, to which the claimant would be entitled in the absence of this act.” MCL 257.1122; MSA 9.2822.
"Any amount paid out of the fund in excess of the amount authorized by this section may be recovered by action brought by the secretary.” MCL 257.1123(2); MSA 9.2823(2). | [
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Per Curiam.
Pursuant to a judgment of divorce, entered on February 20, 1976, plaintiff was awarded custody of the parties’ minor child, born November 24, 1970. Thereafter, on December 16, 1977, defendant petitioned the trial court to modify the judgment of divorce to award him custody of the minor child. Hearings were held on October 2, 3, and 27, and November 21, 1978, following which defendant was awarded custody of the minor child. This appeal followed as of right.
The trial court’s authority to modify previous custody orders stems from MCL 722.27; MSA 25.312(7):
"If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from other actions therein or orders or judgments thereof, for the best interests of the child the court may:
"(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches the age of 18 years or in exceptional circumstances, until the child reaches majority. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in such environment for guidance, discipline, the necessities of life and parental comfort. The age of the child, the physical environment and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”
"Best interests of the child” is defined in MCL 722.23; MSA 25.312(3), which enumerates ten factors to be considered.
This Court’s review of child custody cases is controlled by MCL 722.28; MSA 25.312(8):
"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”
Child custody cases are considered de novo and the evidence is appraised apart from the trial judge’s findings of fact. Outcalt v Outcalt, 40 Mich App 392, 394; 198 NW2d 779 (1972), Bahr v Bahr, 60 Mich App 354, 360; 230 NW2d 430 (1975), lv den 394 Mich 794 (1975).
This Court’s duty is to enforce the "clear and convincing evidence” standard of MCL 722.27(c); MSA 25.312(7)(c), where modification of previous child custody orders is at issue. In Outcalt, supra, the trial court had ordered a change of custody on evidence this Court found was at best evenly balanced. The Court held that because clear and convincing evidence was lacking, the trial court’s findings were against the great weight of the evidence and the trial court’s order was an abuse of discretion.
The trial judge in this case recognized the applicability of the "clear and convincing evidence” standard and made extensive findings of fact, with explicit reference to the factors contained in MCL 722.23; MSA 25.312(3). Our review of his findings persuades us that he did not abuse his discretion in determining that there was clear and convincing evidence warranting a change in custody.
Affirmed. | [
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North, C. J.
Plaintiffs are contract purchasers of lots in the Log Cabin subdivision located in Oakland township, Oakland county, Michigan. Defendants are the proprietors of this subdivision and hold the vendors’ interest in plaintiffs’ contracts. Plaintiffs allege failure of the defendants to make certain promised improvements in the streets and parks of the subdivision; and seek to have defendants enjoined from enforcing either payment or cancellation of the contracts until the improvements are made or, in the alternative, that plaintiffs be decreed cancellation of their contracts and have an accounting for and repayment of all sums paid thereon. Prom a decree dismissing their bill of complaint plaintiffs have appealed. Because it concisely states what occurred in court and the reason for the decree of dismissal, we quote the opinion of the circuit judge:
“This bill was filed by a number of purchasers of lots on the Log Cabin subdivision, property that was owned and platted by the defendants in Oakland township. It is the claim of the plaintiffs in the bill that at the time they purchased the lots certain representations were made to them by the owners or their agents that various driveways in the subdivision would be graded and improved with gravel; that the parks would be made beautiful so that the entire subdivision would have an appearance of a well laid out and improved subdivision with beautiful parks, and further that the plaintiffs were shown a prospectus showing private drives having a width from 60 to 100 feet and seven private parks. The matter came before the court on a number of occasions on miscel laneous motions in connection with an injunction and payments on the land contracts. Afterwards, it came on for hearing on September 13,1934. At that time the parties, at the suggestion of the court, entered into a stipulation in open court by which they agreed that the court appoint a qualified engineer to make an examination and draw specifications of the work necessary to be done on the Log Cabin subdivision. The stipulation is part of the records in the case and in accordance with the agreement, this court appointed one A. M. Comb, a registered civil engineer, who had formerly been employed by the county road commission and who had a great deal of experience in road work. On October 1st, Mr. Comb filed his report. Upon an examination it is apparent to the court that it was based, to a large degree at least, upon conversations which Mr. Comb has had with lot owners and an independent investigation which he had made of the conditions, statements and representations at the time the property was platted and when the lots were sold; there was little definite information in the report except the recommendation which the engineer made for the improvement of the roads in which he stated as follows:
“ ‘I am, therefore, making the following recommendations, which I believe will restore them to a condition which might reasonably be expected by a property owner or assumed by a prospective purchaser after reading the prospectus which was evidently used in the promotion of sales on this property.’
“Subsequent to the filing of the engineer’s report plaintiff noticed a decree and settlement based upon the engineer’s report in which the court was asked to decree that defendants should do a number of things in connection with improving of the subdivision and the roads which were set forth in five numbered paragraphs. Upon the hearing for the settlement of the decree it appeared to the court that it was impossible, in view of the general stipulation and the hearsay statements upon which the en gineer’s report was based, for the court to make a decree which, would be binding upon these parties. In the judgment of the court there was no way in which a decree could be based upon the report and upon the case as it stood at that time. Signing of the decree was withheld, statement was made to counsel that the case might be set down in the regular way for hearing at which time all of the witnesses who had knowledge of the conditions under which the property had been platted and lots sold could be produced in court and a complete record could be made so that the court would have something before it upon which to base a final decree. The matter came on before the court today and no additional testimony has been produced. By stipulation of counsel so much of the engineer’s report as he could testify to if presented here in court, has been received in evidence. There is nothing* else before the court, there is nothing upon which a decree could be based. There is no other course except to grant the motion to dismiss the bill of complaint, with costs.”
The record fully sustains the opinion of the circuit judge; and the decree entered in accordance therewith is affirmed. Costs to appellees.
Fead, Wiest, Butzel, Bushnell, Sharpe, and Toy, JJ., concurred. Potter. J., did not sit. | [
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Per Curiam.
Defendant appeals by leave from a denial of its change of venue motion by the Ma-comb County Circuit Court.
Defendant’s registered office and principal place of business are in Isabella County. This action arose out of defendant’s sale and delivery in Ma-comb County of a chiparvestor, a machine for making wood chips. When plaintiff became dissatisfied with the machine and negotiations with defendant proved unproductive, plaintiff filed a complaint in Macomb County Circuit Court seeking damages and rescission of the sales contract. Defendant moved for a change of venue to Isabella County under GCR 1963, 403, alleging that it had no place of business, no buildings, no property or personnel in Macomb County, and that its only contact with Macomb occurred with the single sale of the chiparvestor to plaintiff.
The Macomb County Circuit Court identified the sole issue as whether or not defendant "conducts business” in Macomb County under MCL 600.1621; MSA 27A.1621. It concluded that defendant had continuing business contacts in Macomb County between 1974 and 1977 and denied defendant’s motion. We are now called upon to review this determination.
The venue statute pertinent hereto is MCL 600.1621; MSA 27A.1621:
"Except for the actions listed in sections 1605, 1611, and 1615, venue shall be determined as follows: ¶ (a) The county in which a defendant resides, or has a place of business, or conducts business, or in which the registered office of a defendant corporation is located, is a proper county in which to commence and try an action.”
Thus, the trial court accurately assessed the issue as whether or not defendant conducted business in Macomb County.
We review a trial court’s resolution of venue questions under an abuse of discretion standard. As stated in Hunter v Doe, 61 Mich App 465, 467; 233 NW2d 39 (1975):
"The grant or denial of a motion to change venue rests in the sound discretion of the trial court and will be reversed on appeal only in cases where there is a plain abuse of that discretion.”
See also Three Lakes Ass’n v Whiting, 75 Mich App 564; 255 NW2d 686 (1977). The discretion of the trial court must be exercised with regard to the facts as they existed on the date the action is begun, DesJardin v Lynn, 6 Mich App 439; 149 NW2d 228 (1967), Kubiak v Steen, 51 Mich App 408; 215 NW2d 195 (1974).
The trial court found, from affidavits submitted by the parties, that defendant had continuing business contacts in Macomb County from 1974 through 1977. Specifically, the court noted that defendant authorized salesmen to solicit business from the plaintiff and other local enterprises. Defendant entered into purchase agreements in Ma-comb County, both with plaintiff and with another local business. Defendant delivered machines to Macomb County and periodically serviced them there. From these contacts, the court found sufficient business activity to justify venue. Our independent review of the record and the respective affidavits of the parties leads us to conclude that the trial court did not abuse its discretion by this determination.
Defendant stresses that its sole contact with Macomb County was its contractual relationship with plaintiff, an insubstantial and isolated contact which should not rise to the level of a continuous and systematic contact with the county. We find this argument unpersuasive.
First, defendant’s sales people contacted plaintiff in Macomb County. Defendant then delivered a chiparvestor to plaintiff at plaintiff’s business. This delivery was followed by a series of mailings of literature and promotional material by defendant to plaintiff in Macomb County. When the chiparvestor did not operate to plaintiff’s pleasing, defendant sent service personnel to plaintiff to attempt to correct deficiencies.
Second, the record indicates that another Ma-comb County business owns one of defendant’s chiparvestors. That machine was sold f.o.b. Isabella County. The Macomb County business’s personnel came to Winn, Michigan, and picked up the machine. When the chiparvestor required servicing, said personnel again delivered the machine to Winn, Michigan, and after repairs, picked it up at defendant’s place of business. For venue purposes, then, it can be seen that all of defendant’s contacts with Macomb County seem to be in connection with the sale of its chiparvestors. Thus, the transaction defendant undertook with plaintiff was material and significant to the conduct of defendant’s business. Defendant’s contacts with plaintiff eventually produced a suit based on breach of contract of sale. In light of these circumstances, defendant is hard pressed to rely upon the isolated nature of his contacts in support of his change of venue plea. It would be inequitable indeed for a seller to actively solicit and generate sales in one county then seek to change venue when suits arising from these sales contracts are brought in that county by emphasizing the isolated nature of the contacts.
In view of the foregoing, we find the trial court did not abuse its discretion in denying defendant’s motion.
Affirmed. | [
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North, C. J.
Plaintiff by bill in equity seeks cancellation of a mortgage and of a sheriff’s deed given on foreclosure of such mortgage. The circuit judge after a hearing on the merits dismissed the bill of complaint. Plaintiff has appealed.
The mortgage covered a 40-acre farm in Troy township, Oakland county, which farm at the time the mortgage was given (January 30, 1930) was occupied as a homestead by the mortgagor, William John Dodds, and his wife, Sarah Dodds. On that date title was in William John Dodds; but on the following day by conveyance to a third party and reconveyance to Mr. and Mrs. Dodds they purported to take title as joint tenants. The mortgage in the principal sum of $2,600 was given to the. First State Savings Bank of Birmingham for money then and theretofore loaned to Mr. Dodds. Some of the borrowed ' money, the record does not disclose how much, was used to pay taxes on the Dodds’ farm. Plaintiff’s bill alleges his father borrowed money from the bank with which to pay the 1928 and 1929 taxes. At the time of giving the mortgage both Mr. and Mrs. Dodds were well advanced in years. Mrs. Dodds had suffered two or three paralytic strokes and her right side was paralyzed. She was assisted in signing the mortgage by placing* “her mark” thereon. The death of Mr. Dodds occurred prior to that of his wife. She died June 14, 1934. Prior to her death the mortgagee, then in the hands of a receiver, instituted statutory foreclosure of the mortgage which resulted in a foreclosure sale on January 18, 1932. The year of redemption expired approximately a year and five months prior to the death of Mrs. Dodds. While there was no redemption of the mortgaged property, by the payment of rental at the rate of $100 per year Mrs. Dodds and. her son, the plaintiff in this case, were permitted to remain in possession of the farm after the expiration of the period of redemption. While plaintiff recites in his bill of complaint that he was appointed and qualified as the administrator of the estate of Sarah Dodds, deceased (and this fact is admitted), still the bill of complaint is clearly one by Samuel J. Dodds in his own right, and not in any other capacity. His pleadings are signed in his individual name and in the verification under oath he states “that he is the plaintiff in the within suit. ’ ’
The ground upon which plaintiff seeks cancellation of the mortgage and the sheriff’s deed is alleged in his bill of complaint as follows:
“That said mortgage is invalid, void and of no effect, the signature of Sarah Dodds thereto having been obtained by fraud and duress, and further that Sarah Dodds was not competent to execute said instrument at the time same was presented to her, nor was the said Sarah Dodds mentally competent at any time thereafter up to and including the day of her death.”
It is further alleged in plaintiff’s bill of complaint :
££ That the plaintiff is willing and hereby offers to do equity in the premises, fully realizing that plaintiff’s parents borrowed certain moneys from the First State Savings Bank of Birmingham.”
The mortgage and mortgage notes evidence the fact that they were given to secure repayment to the bank of a valid indebtedness in the principal sum of $2,600. There is nothing in the record of probative force indicating that there was not an actual indebtedness in the amount of $2,600 for money loaned. The record convincingly discloses that the fair value of this farm does not exceed $50 per acre, or a total of $2,000. After the period of redemption expired and title had become absolute in the bank, it sold this property to the defendant Elmer R. Wentworth for $1,200, a $600 down payment being made on the contract. We think it quite conclusively appears from this record that the mortgage indebtedness, which plaintiff must repay if he is to do equity, is substantially in excess of the fair value of the mortgaged property.
For the purpose of decision herein we may assume, as plaintiff asserts, that Mrs. Dodds at the time the mortgage was executed was mentally incompetent. The circuit judge so found. If plaintiff is to have any relief at all, it must be on this ground, because the evidence in the record does not sustain plaintiff’s allegation of fraud or duress.
At the time the mortgage was given there were no minor children and Mrs. Dodds’ interest in the land at most was then only that of a homestead right or an inchoate right of dower. So far as her homestead right is concerned, it was terminated by reason of her death prior to the filing of the bill of complaint herein. Drake v. Kinsell, 38 Mich. 232; Matson v. Melchor, 42 Mich. 477. Even if it be as sumed that upon her husband’s death her inchoate right of dower became vested or that she inherited an interest in the land (3 Comp. Laws 1929, § 13440) still as to such interest her mortgage conveyance for a valuable consideration was not void, but only voidable, notwithstanding she may have been mentally incompetent at the time the mortgage was given. Moran v. Moran, 106 Mich. 8 (58 Am. St. Rep. 462); Wolcott v. Connecticut General Life Ins. Co., 137 Mich. 309; King v. Sipley, 166 Mich. 258 (34 L. R. A. [N. S.] 1058, Ann. Cas. 1912 D, 702); Cochran Timber Co. v. Fisher, 190 Mich. 478 (4 A. L. R. 9). Under the circumstances plaintiff in equity would be bound to do equity; and as noted above, he has offered in his bill of complaint to do equity. But, under the facts of this case, we are unable to find that any wrong or injustice has resulted to plaintiff, or that there is any practical relief that can be given him because of the fact that it quite conclusively appears the mortgage indebtedness, which in equity he would have to pay the defendant bank, is decidedly in excess of the actual value of the mortgaged property. In other words plaintiff has not made a case from which it appears he is entitled to any equitable relief. Therefore, we conclude that the trial judge arrived at the right result in dismissing the bill of complaint.
In view of the foregoing- we refrain from commenting upon the fact that under the bill of complaint as drawn whatever rights plaintiff asserts must be so asserted on the theory that a deed executed by Mr. and Mrs. Dodds the day after they executed the mortgage was a valid deed; in other words, that Mrs. Dodds was mentally competent to make a valid deed of this same farm the day after she executed the mortgage, which plaintiff claims was invalid because of Mrs. Dodds’ mental incompetency.
Also, because it does not seem to have been urged in the court below nor is it stressed in the briefs filed in this court, we do not rest decision upon the question of plaintiff’s right to bring this suit in bis own name. It does not appear whether Mrs. Dodds died testate or intestate. It does appear from the record that plaintiff is not the only one of Mrs. Dodds’ children who survived her. If the suit is prosecuted by plaintiff as an heir at law, obviously the other heirs are necessary parties. If, as counsel seems to assume, plaintiff filed this bill as the administrator of Mrs. Dodds’ estate, the bill fails to allege the necessary facts to enable the administrator as. such to prosecute this suit, which is an attempt to restore to the estate of Mrs. Dodds or to her heirs title to real property. Pratt v. Millard, 154 Mich. 112; In re Chipman’s Estate, 235 Mich. 130; In re Thompson’s Estate, 241 Mich. 583.
The decree entered in the circuit court is affirmed, with costs to appellees.
Fead, Wiest, Butzel, Bushnell and Toy, JJ., concurred with North, C. J. | [
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North, C. J.
In this suit, originally started as a suit at law but later transferred, by stipulation, to equity, plaintiff seeks reimbursement from defendants for upwards of $16,000 paid by him in satisfaction of a judgment obtained against him by the Commercial National Bank & Trust Company. This judgment was obtained upon plaintiff’s note given to the defendant Union Banking- Company and as signed by it to the Commercial National Bank & Trust Company. It is plaintiff’s claim that the note was merely an accommodation note given without consideration. Decree was entered in the circuit court dismissing plaintiff’s bill of complaint and he has appealed.
In 1929 the Union Banking Company, a Michigan banking corporation, doing business in St. Joseph, Michigan, accepted for discount three promissory notes, each in the sum of $5,000, signed by R. C. Crawford. As collateral there accompanied these notes 200 shares of the Irving* Trust Company of New York in the form of "street certificates.” The individual defendants Merrill, Benning* and Burk-hard each purchased from the bank one of these notes. But later the bank repurchased each of the notes. In the meantime the bank had retained possession of the Crawford notes and the collateral stock.
In February, 1930, the bank officials were anticipating* an examination of the bank. The Crawford notes were past due and the collateral stock had depreciated in market value so that it Avas at least $2,500 below the aggregate of the notes. It is alleged in plaintiff’s bill of complaint that there was some question as to the collectibility of the Crawford notes "and that for the best interest and the good of the Union Banking Company it Avas necessary that someone take up the past due paper and give to said bank a neAV note for the said indebtedness.” Plaintiff Avas a director of the bank, secretary of the board of directors, and a member of the discount and auditing committees. The president and some of the directors of the bank prevailed upon plaintiff to give his nonnegotiable note to the bank for $15,350 for six months in lieu of the Crawford notes or, as appellees assert, as payment for the purchase by plaintiff of the stock deposited as collateral to the Crawford notes. Plaintiff’s note was approved by the discount committee; but plaintiff asserts it was then understood to be only an accommodation note and that shortly after plaintiff gave his note the bank president was to go to Chicago and endeavor to secure further collateral for the Crawford notes or a reduction of the indebtedness by partial payment. This appears not to have been accomplished. In March, 1930, the bank examiner criticized plaintiff’s $15,350 note as an overloan and required the bank directors to extend to plaintiff an additional line of credit if the bank was to continue to hold plaintiff’s note. At the May meeting of the board, attended by plaintiff, such action was taken. Prior to this the bank cashier, with authority from the bank president, wrote to plaintiff the letter quoted below. But appellees claim, and the record seems to support this claim, that the other directors did not authorize and wore not aware of the writing of this letter.
“February 19, 1930.
“Arthur Carlton,
‘‘ City.
“Dear Sir:
“This will acknowledge receipt of your note of $15,350 and which this bank accepts Avithout any liability on your part and inasmuch as it is an accommodation in taking up three' $5,000 notes of R. C. Crawford against Avhich we hold 200 shares of Irving Trust Company of New York as collateral.
“Youry truly,
“Harry A. Johnson,
‘ ‘ Cashier. ’ ’
It appears from plaintiff’s testimony that when he was about to advise the others present at a directors’ meeting of the character of his note the bank president shook his head at plaintiff and the latter was deterred from making his statement to the other directors.
On May 23, 1930, the Union Banking Company sold and assigned certain of its commercial papers to the Commercial National Bank & Trust Company and received therefor $51,000. This sale and assignment included plaintiff’s note, and the assignment contained the following:
‘ ‘ The Arthur Carlton note has collateral attached consisting of 200 shares Irving Trust Company. Certificates Nos. 24,840-24,839.”
Plaintiff’s note was not paid at maturity and thereupon the assignee brought suit and recovered judgment against plaintiff on June 4, 1931. Plaintiff satisfied the judgment rendered against him by paying part in cash and giving his note for the balance. When suit was brought by the Commercial bank ag’ainst Mr. Carlton he notified the Union Banking Company and authorized it to appear and defend, but the bank did not do so. In his defense Mr. Carlton pleaded and unsuccessfully urged that the note on which suit was brought was a nonnegotiable accommodation note, given without consideration, and that the Commercial National Bank & Trust Company was not a holder in due course. Prior to the suit by the assignee on plaintiff’s note, and on February 9, 1931, the following entry was made in the minutes of a meeting of the directors of the Union Banking Company:
"The matter of the accommodation n'ote given by Mr. Carlton to the Union Bank was discussed, and it was the sense of the meeting that any deficiency between the value of the security and the face of his accommodation note should be charged to the liquidating fund of the Union bank.”
These minutes were signed by five of the bank’s directors, including plaintiff, and defendants Merrill and Benning. This belated action really amounted only to expressing a desire that the bank, rather than plaintiff, should bear the apparent loss incident to the Crawford transaction. The recital in the minutes constituted competent evidence as an admission, but it could not change the nature of the prior transaction in connection with which plaintiff had given his note to the Union bank.
Plaintiff contends that he had no knowledge of his note having been sold by the Union bank to the Commercial bank until after its maturity when he was notified and demand of payment was made by the Commercial bank. Because of this circumstance, as well as its general bearing upon the case, the further statement of facts is material. Shortly following the assignment of plaintiff’s note (May 23,1930) to the Commercial bank, and on June 21, 1930, the Union bank entered into a liquidating contract with the Commercial bank whereby all of the assets of the former were transferred to the latter which undertook to pay the scheduled liabilities of the Union bank. Plaintiff, both as a director and as a stockholder of the Union bank, actively participated in this transfer of its assets; and this transaction occurred prior to the maturity of his note. Plaintiff must have known that his note had passed with other assets of the Union bank. On the 24th day of September 1931, the Commercial National Bank & Trust Company suspended operation and defendant W. R. Payne was appointed receiver. In plaintiff’s brief it is stated: “Mr. Payne is joined as a defendant because he has custody and control of all the assets of the Union Banking Company.”
As stated above, it is plaintiff’s claim that his note was purely an accommodation note without consideration and, therefore, he is entitled at least to a judgment ag'ainst the Union Banking Company. On the other hand, defendants contend that at the time plaintiff’s note was given the Union Banking Company in fact sold to plaintiff the Irving Trust Company stock which it held as collateral with the Crawford notes, that thereupon the Crawford notes were considered paid although they were still held in the possession of the bank, and that this sale of the Irving Trust Company stock to plaintiff constituted a valid consideration for his note. It is also asserted by defendants that there was a further consideration for plaintiff’s note in that it improved the condition of the assets of the Union Banking Company and thereby protected and increased the value of plaintiff’s stock holdings in the bank. The circuit judge found there was consideration for the note in accordance with the first of the defendants’ two contentions above noted. If this finding is sustained by the testimony, decree entered in the circuit must be affirmed.
There are many conflicting circumstances disclosed by this record, some of which tend rather convincingly to sustain plaintiff’s contention that his note was simply given for the accommodation of the Union Banking Company; but on the other hand the record discloses other facts and circumstances which it is quite impossible to reconcile with any other theory except that plaintiff knowingly purchased the Irving Trust Company stock, which was deposited as collateral with the Crawford paper, at the time plaintiff gave the note in question. "We cite some of these facts and circumstances: Plaintiff’s note to the Union bank provided that he deposit the Irving Trust Company stock as collateral with his note and the conditions under which such collateral might be sold in case of default. Shortly after he g’ave his note the Union Banking Company surrendered the certificates for the Irving Trust Company stock, which certificates, were in street form, and secured therefor new registered certificates issued in plaintiff’s name. These certificates in turn were indorsed in blank by plaintiff and left in the possession of the Union Banking" Company as collateral to his note. Subsequently dividends were declared by the Irving Trust Company payable to plaintiff, and by him turned over to the- bank to be applied on his note. Again when plaintiff later gave his note in partial settlement of the judgment which the Commercial bank secured against him, he put up the Irving Trust Company stock as collateral to this note. It is highly incredible that a man of plaintiff’s business experience would have pledged as collateral stock in which he had and claimed no right or ownership. Plaintiff’s note was payable six months from its date. This fact together with other details of the transaction do not harmonize with plaintiff’s claim that his note to the Union bank was given as an accommodation for only a few days during which the bank president was to go to Chicago and endeavor to straighten out the Crawford loan. Plaintiff admits he did not make inquiry of the bank president or otherwise concern himself with any subsequent developments relating to these Crawford' notes.
We are mindful that plaintiff points out as absurd the claim that he purchased this stock for the amount of his note at a time when he knew the market value of the stock was substantially less than the face of his note. But in this connection appellees stress in their brief that Mr. Tebbe, president of the Union Banking Company, at the time he was soliciting plaintiff’s note, and possibly other directors of the bank, asserted the possibility of a rise in the market value of this stock and a subsequent profit to the one who purchased it. Doubtless the fair inference from the record is that plaintiff was induced to give his note both because of his desire to improve the condition of the bank’s assets in advance of the visit of the bank examiner, and also because of his desire, under the circumstances, to take advantage of the possibility of reaping a profit incident to the purchase of the Irving Trust Company stock.
Careful consideration of this record brings the conclusion thiat the trial judge was right in holding that there was consideration for plaintiff’s note to the Union Banking Company. This being true, plaintiff is not entitled to recover against any of the defendants; and it becomes unnecessary to outline the theory of his claim against the individual defendants. It is also obvious that the judgment obtained against plaintiff in the former suit of the Commercial National Bank & Trust Company on the same note is res judicata of that issue as between plaintiff and the Commercial bank. Because of the conclusion reached we pass appellees’ contention that plaintiff is estopped by his course of conduct from obtaining a decree herein, and further that he is not in court with clean hands and therefore not entitled to equitable relief. Nor will we discuss the interesting academic question as to the possibility ofpising a nonnegotiable instrument as an accommodation note.
The decree entered in the circuit court is affirmed, with costs to appellees.
Fead, Wiest, Butzel, Bushnell, Sharpe, and Toy, JJ., concurred. Potter, J., did not sit. | [
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Wiest, J.
The bill herein was filed to obtain reformation of a quitclaim deed by the State of public domain land and to quiet title to oil, gas and mineral ownership thereon, restrain trespass and have an accounting for oil and gas removed from the premises.
Unoccupied and unimproved land in Ogemaw county was sold for unpaid taxes for several years and purchased in behalf of the State by the auditor general and, not having been redeemed within the period allowed by law and found abandoned, was removed from homestead entry and sale for homestead purposes, and deeded by the auditor general to the State in fee. It thereby became a part of the public domain.
April 6,1911, Lucinda Turner made application to purchase the land in suit and stated in her applica tion, in accordance with the provisions of Act No. 280, Pub. Acts 1909:
“It is expressly understood, that any deed or deeds issued upon the above application shall contain the following clause: ‘Saving and excepting out of this conveyance and always reserving unto the said State of Michigan, all mineral, coal, oil and gas, lying and being on, within or under the said lands hereby conveyed, with full and free liberty and power to the said State of Michigan, its duly authorized officers, representatives and assigns, and its or their lessees, agents and workmen, and all other persons by its or their authority or permission, whether already given or hereafter to be given, at any time and from time to time to enter upon said lands and take all usual, necessary or convenient means for exploring, mining,' working, piping, getting, laying up, storing, dressing, making merchantable, and tailing away the said mineral, coal, oil and gas, pursuant to the provisions of section eight of act two hundred eighty, public acts of 1909, ’ * and I do hereby agree to accept such deed and abide faithfully by said conditions as expressed therein.”
Such a deed was executed by the State, accepted and recorded by Lucinda Turner, and the terms mentioned complied with by her in her subsequent conveyance to George W. Everline on May 15,1911, and by Everline in his conveyance to plaintiff on March 9, 1933, with each deed containing verbatim the reservation mentioned.
The State, in January, 1934, leased its oil and gas rights in the premises under royalty to a corporation. Oil and gas were found and, in October, 1935, plaintiff filed the bill herein and, upon hearing in the circuit court, was granted full relief. Defendants prosecute review on grounds hereinafter stated.
We quote the questions presented by plaintiff:
“Plaintiff contends:
“1. That when Lucinda Turner, plaintiff’s predecessor in the record title, purchased from the State, she was entitled as a matter of law to a deed conveying an absolute title in fee of all the right, title or interest of the State to such tax lands acquired or accrued by virtue of the original sale to the State, free from reservations of oil, gas and mineral rights, in accordance with the general tax act, being Act No. 206, Pub. Acts 1893, as amended by Act No. 107, Pub. Acts 1899, and Act No. 341, Pub. Acts 1901, and plaintiff, through his chain of title, is therefore the owner of the lands and of all oil, gas and minerals found therein.
“2. That Act No. 280, Pub. Acts 1909, and its amendatory acts have no application to tax lands.
‘ ‘ 3. That Act No. 280, Pub. Acts 1909, as amended (2 Comp. Laws 1929, §§ 5838-5851), and Act No. 174, Pub. Acts 1929 (2 Comp. Laws 1929, § 5655), and Act No. 320, Pub. Acts 1929 (2 Comp. Laws 1929, § 5848), on which defendants rely are not listed as amendments or repeal of section 84 (1 Comp. Laws 1929, § 3477), or section 131 (1 Comp. Laws 1929, § 3527), of the tax acts, under the notes to the compiler’s references in the public acts or compiled laws, nor in Shepard’s Citator.
“4. That if Act No. 280, Pub. Acts 1909, and its amendatory acts were intended to apply to tax lands, said act and its amendatory acts are unconstitutional and void, because they violate State Constitution, art. 5, § 21, as hereinafter mentioned.
“5. That even if Act No. 280, Pub. Acts 1909, and its amendatory acts are constitutional, defendants had no right to enter plaintiff’s lands and remove oil therefrom, because such acts do not give a right of ingress and egress to his lands.
“6. That Acts Nos. 174 and 320, Pub. Acts 1929, under which defendants’ lease was executed, were enacted to stop the commission from assuming power over oils and minerals on tax lands, not owned by the State.
“7. That even if Act No. 280, Pub. Acts 1909, and its amendatory acts are constitutional, and, if applicable to tax lands, the lease executed by defendants is invalid because of the failure of defendants to comply with Act No. 320, §32, Pub. Acts 1929, in that they failed to obtain a waiver of the oil and gas rights from plaintiff or his predecessor, the record title owner of such lands, as required by said section.
“8. That the execution of the lease by officers of the State, and defendants’ entry and possession of plaintiff’s lands Avithout having obtained a Avaiver of his oil and gas rights, constitute a confiscation of his property, a deprivation of it Avithout due process of law, a denial of the equal protection of the laAvs, contrary to the provisions of the fourteenth amendment to the Federal Constitution.
‘ ‘ 9'. That all defendants, except the State of Michigan and P. J. Hoffmaster, are wilful trespassers and liable for the loss suffered by plaintiff.
‘ ‘ 10. That the State of Michigan does not have a sovereign right to mines and minerals in lands. # *
“13. That plaintiff is entitled to a decree quieting title in him to the lands involved and an accounting for the value of all oil extracted or removed therefrom and for all loss or damage sustained by him. ’ ’
Plaintiff contends that Act No. 280, Pub. Acts 1909, creating the public domain commission, and requiring that commission, in making sales of State owned land, to reserve oil, gas and mineral rights, is unconstitutional because the body of the act is broader than the title, and the act was given immediate effect. We quote the title:
“An act to create a commission to be known as a public domain commission; to provide for the appointment of such a commission and to fix their terms of office; to prescribe their powers and duties; to make an appropriation to carry out the provisions of this act; and to repeal all acts and parts of acts inconsistent herewith. ’ ’
The body of the act runs true to the title if its provisions apply to land owned by the State in fee.
The term “public domain,” in State legislation, means lands owned by the State. No more comprehensive purpose could possibly be declared than that mentioned in the title. The title need not serve as an index; it is sufficient if it fairly expresses the subject of the legislation and conveys comprehension of its germane provisions. Westgate v. Township of Adrian, 161 Mich. 333.
The land in suit was a part of the public domain and the act in all of its provisions is pertinent to the powers and duties to be exercised by the public domain commission with reference to acquisition and disposition of land owned by the State in fee. That act, in section 8 thereof, fixed the governing action relative to sales of State owned land as follows :
“When any sales are made by and under the direction of the commission the deeds by which said lauds are conveyed shall reserve all mineral, coal, oil and gas rights to the State and said rights shall be owned by the State; but said commission shall have power to make contracts with private individuals or corporations for taking ore, coal, gas or oil from said lands upon a royalty basis upon such terms as to said commission may be deemed just and equitable. ’ ’
This was the act with which Lucinda Turner complied in mailing the purchase and which plaintiff, whose chain of title was derived thereunder, now claims to be void.
The land in suit was neither homestead land nor land held open for homestead purposes but land withdrawn from such entry and sale and owned in fee by the State and, by such owner, placed on the market for sale by the commission and so sold. Plaintiff has all he ever purchased.
Plaintiff avers no equities but plants himself up on asserted rights in point of law, his main contention being that his predecessor in title was entitled to receive, in spite of the conveyance applied for and granted, and did obtain, an absolute title in fee simple by virtue of Act No. 206, § 131, Pub. Acts 1893, as amended by Act No. 141, Pub. Acts 1901.
The act of 1893 (Act No. 206), known as the general tax law, provided (title):
“For the collection of taxes heretofore and hereafter levied; making such taxes a lien on the lands taxed, establishing and continuing such lien, providing for the sale and conveyance of lands delinquent for taxes, and for the inspection and disposition of lands bid off to the State and not redeemed or purchased. ’ ’
Section 131 (Act No. 206, Pub. Acts 1893), as amended by the act of 1901 (Act No. 141), provides, so far as here material, that:
“All such lands shall be held by the commissioner of the State land office subject to entry as homestead lands unless withheld and reserved in the manner following: The commissioner of the State land office and the auditor general, acting jointly, may reserve and withhold from entry under the homestead right such portion of the lands deeded by the auditor gen eral to the State under section one hundred twenty-seven of act number two hundred six of the public acts of eighteen hundred ninety-three and acts amendatory thereto as, in their opinion, may not be advantageous to open for homestead, and they may withhold and reserve such land from entry for so long a time as in their opinion will best subserve the interests of the State. The said land commissioner and auditor general shall affix a minimum price upon all lands so reserved and withheld, or which may hereafter be reserved and withheld. All such lands withheld from homestead entry shall be offered for sale by said land commissioner at prices to be discretionary with him. ’ ’
The act then provided for certain rules and regulations relative to such sales and, in case of entry for homestead, the commissioner might issue a certificate upon receiving payment of the sum of ten cents per acre, conditioned that the purchaser should reside on the land for five years and improve the same and, at the expiration of the five years, upon proof of fulfillment of the contract, the purchaser should be entitled to a deed and “such deed shall convey an absolute title to the lands sold, and shall be conclusive evidence of title in fee in the grantee, and it shall be the duty of the State of Michigan to defend and prosecute all suits brought to protect such title, and the State shall pay all costs adjudged against the homesteader.”
The act further provided:
“That any person who, has purchased and entered into possession of any lands as a homestead, under and by virtue of the provisions of this section, as originally passed, or as amended when said lands had been bid off to the State and were held by the State for the taxes of one or more years, and said lands were delinquent for taxes for three or more years, shall, on performing the other conditions of said section, as amended, receive a deed therefor, as provided herein, and shall be deemed to have a good, sufficient fee simple title to said premises, to all intents and purposes the same as though said lands had been bid off to the State for a consecutive period of more than three years, as originally provided in section one hundred and twenty-seven of said act. And in all cases where the lands have been taken as a homestead as set forth in last foregoing proviso, all actions of ejectment or to recover possession of said lands or to set aside the title of such homesteader by any person, firm or corporation claiming the original or government title, shall be commenced within six months after this act shall take effect and not afterwards.”
And—
“In case written application shall be made to the commissioner of the State land office to purchase any description of ■ said lands so held by the State for more than three years, as herein stated, it shall then be the duty of the commissioner of the State land office to examine and appraise the value of the land so offered to be purchased as aforesaid. The commissioner of the State land office shall make a record of said appraisement in a book to be kept in his office for that purpose. After such examination and appraisement, if there has been no application to homestead said lands, it shall be competent and the commissioner of the State land office is hereby authorized to sell such description of land to any person so applying for the purchase thereof, but at not less than the appraised valuation, and he shall not be authorized to sell to any one person over two hundred and forty acres of said land. In case of the sale of said lands, the commissioner of the State land office shall execute and deliver to the purchaser a deed in such form as he may determine, which shall convey to the purchaser the same interest as is provided for a deed where said lands have been homesteaded as provided in this section.”
The State contends that the statutory provisions, relied on by plaintiff, do not apply to lands withheld by the State from homestead entry or sale for homestead purposes and that such was the property bargained for and conveyed to Lucinda Turner.
The State held title in fee simple. The original title had come to an end and a new chain of title originated with the State. The deed to Lucinda Turner was no part of any statutory proceedings instituted for the purpose of foreclosing the interest of an original owner who had become delinquent in the payment of taxes. This should be kept in mind for it notes the distinction between sales calculated to cut off former ownership and that of vested ownership in the State. In the one instance the statute divests title in one and vests it in another through tax foreclosure proceedings, while in the other a new title originates by deed from the State. The State, having title in fee, could, like any other owner in fee, deed with reservation of the oil, gas and minerals. It needed no amendment to an inapplicable statute to enable the State, by legislative enactment, to establish a policy with reference to land owned by the State in fee. The deed to Lucinda Turner was not a tax sale deed but one upon bargain, with sale by the State, the owner in fee of the land, and such owner could and did sever the divisible fees.
The act of 1909 (Act No. 280) was evidently the result of Act No. 188, Pub. Acts 1907, which provided for a commission to prepare and submit a report to the next legislature for the “protection, improvement, utilization, and settlement of, and for the bet ter and more economical administration of the affairs and business of the State connected with delinquent State tax lands, now owned or hereafter acquired.”
Lands acquired by the State through tax proceedings are placed in three classes by the act of 1893, and the amendments thereto:
1. Homestead entry for actual settlement and residence thereon for five years with purchase price at
10 cents per acre;
2. Homestead land held for three years without application for such purpose, examined and appraised and placed on sale;
3. Lands reserved from homestead entry and sale for homestead purposes and deeded to the State in fee.
The land purchased by Lucinda Turner was of the last class.
When the State restored land of class three to the market the disposition thereof was not within any tax act, such as sales under classes one and two. The title had become absolute in the State, and with the State a new chain of title started.
The State, as owner in fee of the land, could sever the estate in fee to the surface from that of fee in the 011 and gas underlying the surface.
The general tax law, Act No. 206, Pub. Acts 1893 (1 Comp. Laws 1929, § 3464), provided that on presentation of a certificate of sale by a purchaser at a tax sale after expiration of the period fixed for redemption—
“the auditor general or his deputy shall execute and deliver to the purchaser, his heirs or assigns, a deed of the land therein described, unless the sale thereof shall have been redeemed or annulled as by law provided, which deed shall be entitled to record in the office of the register of deeds of the proper county, in the same manner and with like effect as other deeds duly witnessed, acknowledged and certified. Such deeds shall convey an absolute title to the lands sold, and be conclusive evidence of title, in fee, in the grantee, subject, however, to all taxes assessed and levied on such lands subsequent to the taxes for which the same was bid off. ’ ’
Clearly this provision has no relation to the purchase made by Lucinda Turner. •
There is no merit in the claim that, even if the act of 1909 (Act No. 280) is constitutional, the State and its lessees had no right to enter plaintiff’s land and remove oil therefrom because the statute gives no right of ingress and egress. The very deed, under which plaintiff claims, as well as the deeds of his predecessors, gave such right to the State, its officers, assigns, lessees, agents and workmen, and plaintiff is bound thereby.
"Whether the act of 1909 (A.ct No. 280) should have been given immediate effect or not was for legislative determination and, in the absence of a showing of an abuse of the power, the legislative determination must stand.
Plaintiff contends that, under the express provisions of Act No. 320, Pub. Acts 1929 (2 Comp. Laws 1929, § 5848), the State’s lease to the Shell Petroleum Corporation was void.
The provision relied upon reads:
“Provided further, That the commission is also authorized to sell all reserved mineral, coal, oil and gas rights to such lands upon such terms and conditions as the commission may deem proper. The owner of such lands as shown by the records shall be given priority in case the commission shall authorize any sale of such lands and unless he shall waive such rights, the commission shall not sell such rights to any other person.”
There is a clear distincttion to be observed between the sale by an owner and a lease. In the one instance the title is disposed of and in the other the title is retained.
It would do violence to the language of the statute and the rights of the State to hold that leasing by the State was a sale within the meaning of the statute.
At the time of the lease in January, 1934, the record owner of the land was Mr. Everline, although plaintiff held an unrecorded deed.
When Lucinda Turner purchased from the State the land in suit was a part of the'public domain, removed from all tax law provisions in its retention or disposition. It had passed beyond tax law homestead provisions; it had ceased to be open to purchase as land bid for the State at tax sales, and the title thereto in fee had come to rest in the State to be dealt with as legislative public policy might be declared.
Act No. 280, Pub. Acts 1909, declared such public policy and Lucinda Turner complied therewith and she, and all others claiming under or through her grant of title, can now make no other claim.
Plaintiff made no case and the decree in the circuit court is reversed and the bill dismissed, with costs to defendants.
North, C. J., and Fead, Butzel, Bushnell, Sharpe, and Toy, JJ., concurred. Potter, J., did not sit.
Act No. 280, Pub. Acts 1909 was somewhat revised by Aet No. 194, Pub. Acts 1911, and as revised and thereafter amended appears as 2 Oomp. Laws 1929, § 5838 et seq. Matter formerly contained in section 8 appears, with additions, in section 12 (2 Comp. Laws 1929, § 5848). — Reporter. | [
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Per Curiam.
The principal issue raised by this appeal is whether GCR 1963, 111.6 allows for the recovery of reasonable attorney fees where an action has been dismissed prior to trial.
This matter resulted from a libel action initiated by plaintiff against defendants. Prior to trial, the parties filed a stipulation to dismiss "with costs to be taxed against the Plaintiff”. In accordance with the stipulation, the court issued an order of dismissal which incorporated the above-quoted language.
Defendants subsequently filed a motion to tax costs and actual attorney fees. Defendants based their request for actual attorney fees on GCR 111.6, in that plaintiff’s suit purportedly contained unwarranted allegations. The lower court ruled that defendants would be entitled to reasonable, as opposed to actual, attorney fees.
Plaintiff contends that the trial judge improperly awarded attorney fees under GCR 111.6.
GCR 111.6 provides as follows:
"Unwarranted Allegations and Denials. If it appears at the trial that any fact alleged or denied by a pleading ought not to have been so alleged or denied and such fact if alleged is not proved or if denied is proved or admitted, the court may, if the allegation or denial is unreasonable, require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees.” (Emphasis added.)
We find that the lower court’s reliance on the court rule was misplaced. GCR 111.6 does not apply to a case dismissed prior to trial. This conclusion is clear from the emphasized language above, particularly when read in conjunction with proposed Michigan Court Rule, MCR 2.111(G).
Proposed MCR 2.111(G) replaces the words "at the trial” with "at any time”. The reason for this change is explained by the Committee Comment to MCR 2.111(G), 402A Mich 117, as follows:
"COMMENT: This section expands the use of sanctions previously authorized in this rule and makes them applicable 'at any time’ in an action that the judge finds the spurious allegations or denials were pleaded. The old rule only permitted these sanctions to be assessed if trial of the action was had. If the case was settled or otherwise disposed of before trial, no sanctions were permitted. The committee felt the previous limitation was unwarranted, encouraged false or misleading pleadings, and perpetuated 'fraud’ on the court and the opposing party. See rule 2.114.” (Emphasis added.)
We conclude that present GCR 111.6 does not countenance an award of attorney fees where a case has been dismissed prior to trial.
Notwithstanding our interpretation of the court rule, defendants argue that Russell v Glantz, 57 Mich App 44; 225 NW2d 191 (1974), lv den 394 Mich 781 (1975), provides support for the pretrial awarding of attorney fees pursuant to GCR 111.6.
Glantz involved a dispute between an attorney and a court reporter regarding an alleged exorbitant stenographic fee. The attorney failed to appear at a hearing on his motion for reimbursement and the reporter was awarded attorney fees pursuant to GCR 111.6.
We believe that Glantz is distinguishable. The hearing, on the motion, in the instant case was the only type of "trial” which could have conceivably been held. In any event, to the extent that Glantz can be read to sanction the pretrial award of attorney fees under GCR 111.6, we decline to follow it.
Defendants next argue that the stipulation executed by the parties which contained the phrase "with costs to be taxed against Plaintiff’ allows for the recovery of actual attorney fees. We disagree.
The above language does not constitute a clearly discernible intention by plaintiff to pay defendants’ actual attorney fees.
The word "costs” as used in this state seldom includes actual attorney fees. See MLP, Costs, § 54. Since the use of the word in the stipulation and order of dismissal should be construed in its most normal and accepted meaning, it would be stretching the word to engraft into it the concept of actual attorney fees. If the parties had intended that meaning, then the language in the stipulation and order of dismissal would presumably have been phrased as "costs and reasonable attorney fees”, rather than simply "costs”.
We conclude that defendants’ argument lacks merit. Defendant is entitled only to those costs which are expressly authorized by statute or court rule.
Reversed. Costs to
In this respect, it is interesting to note that the motion by-defendant Abell and the Committee filed on August 18, 1978 was denominated "MOTION TO TAX COSTS AND ACTUAL ATTORNEY FEES”. Similarly, the bill filed by defendant Schmitt on August 18 was denominated "TAXED BILL OF COSTS OF DEFENDANT SCHMITT PUBLISHING CO., INC. ATTORNEY FEES”. | [
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D. E. Holbrook, Jr., J.
Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549, armed robbery, MCL 750.529; MSA 28.797, and assault with intent to kill and murder, MCL 750.83; MSA 28.278. Thereafter sentenced to concurrent prison terms of 25 to 40 years, life imprisonment, and 20 to 40 years, respectively, he appeals as of right.
Defendant and two friends went to a notorious "dope den”. Defendant entered the apartment alone with the intention of getting the occupant’s gun. After obtaining the gun, defendant opened the apartment door. His friends came in and there was shooting. Two men from the apartment were wounded and one was killed.
At trial defendant’s two friends obtained pleas to lesser charges in return for their testimony. There were conflicting stories as to whether defendant or his friends did the shooting.
Defendant claims that the trial court questioned him at length in such a way as to discredit his testimony in the jury’s minds. We agree. Where there is a jury, the judge should avoid any invasion of the prosecutor’s role and exercise caution so that his questions will not be intimidating, argumentative, prejudicial, unfair or partial. People v Cole, 349 Mich 175, 199; 84 NW2d 711 (1957).
The judge pursued an intimidating and argumentative line of questioning. By injecting into the trial his skepticism of defendant’s testimony, he exceeded the bounds of impartiality. For example, he challenged defendant’s testimony concerning defendant’s tricking the decedent out of his gun:
"THE COURT: Did you think that you could have gotten Mr. Jackson’s weapon from him voluntarily?
"THE WITNESS: Voluntarily?
"THE COURT: Yes.
"THE WITNESS: I did.
"THE COURT: You said you went there to borrow the weapon, right?
"THE WITNESS: Oh, yes, sir.
"THE COURT: Did you realistically think that he would loan you his weapon?
"THE WITNESS: Yes, sir.
"THE COURT: And was he running a dope pad?
"THE WITNESS: Yes.
"THE COURT: How long have you been familiar with dope pads?
"THE WITNESS: Oh, since I was 16.
"THE COURT: How old are you now?
"THE WITNESS: 24.
"THE COURT: You realistically thought Mr. Jackson would loan you his weapon which he was using to protect his dope pad?
"THE WITNESS: Yes, sir.”
Such judicial questioning did not serve the purpose of producing fuller testimony or of clarifying points as sanctioned under Simpson v Burton, 328 Mich 557, 564; 44 NW2d 178 (1950).
Defendant testified that one of the accomplices, Melvin Daniels, gave him a gun prior to entering the apartment. He stated that he went into the apartment for the sole purpose of borrowing decedent’s gun and that he had no prior knowledge) of the events which took place. He also said that he did not participate in the robberies or shootings. He obtained decedent’s gun and was leaving the apartment when he was surprised by Daniels and McKinney, the other accomplice. The trial judge questioned defendant regarding the alleged surprise:
"THE COURT: Mr. Jackson, how tall were you on January 3, 1977?
"THE WITNESS: I am about five ten, five eleven.
"THE COURT: And how much did you weigh then?
"THE WITNESS: Same as I do now.
"THE COURT: What is that?
"THE WITNESS: 180.1 am sure.
"THE COURT: Is Mr. Daniels as tall or as heavy as you?
"THE WITNESS: He is not as tall, but about as heavy as me.
"THE COURT: Is Mr. McKinney as tall or heavy as you?
"THE WITNESS: I am not sure. I don’t know Mr. McKinney.
"THE COURT: You don’t know him?
"THE WITNESS: The first I seen him was the day this happened.
"THE COURT: You saw him the other day, didn’t you?
"THE WITNESS: Yes, sir.
"THE COURT: And at the time you became frightened, either Mr. Daniels or Mr. McKinney or both, and you had two weapons, one of which was loaded?
"THE WITNESS: Yes, sir.
"THE COURT: You were armed and bigger than either of those individuals, is that right?
"THE WITNESS: I was armed and taller, but I would like to express myself.
"THE COURT: Feel free to.
"THE WITNESS: Okay. I have never been in places— placed in a position like that before, and opening the door and seeing them and the expression on their face was something that I can’t describe.
"THE COURT: Anything further, counsel?
"MR. HOGG: I have some further questions based on the Court’s examination.”
Such an interrogation indicates skepticism or incredulousness on the part of the judge. It could have influenced the jury to the detriment of defendant’s case. People v Roby, 38 Mich App 387, 392; 196 NW2d 346 (1972). Defendant’s version of the facts, that he was frightened and surprised, was impeached by the trial court’s suggestion that defendant had a physical advantage over both Daniels and McKinney.
A prosecution witness testified to seeing two men run to a car. He then heard more gun shots from within the building and saw a third man in a blue parka run from the building and enter the car. Defendant testified that he was one of the first two men to enter the car. The trial court questioned defendant:
"THE COURT: Were you wearing a blue parka similar to the one that is on evidence here?
"THE WITNESS: That’s correct.
"THE COURT: Were you the last person to get in the car?
"THE WITNESS: No, sir.
"THE COURT: Did you hear that young man testify and say he was on his porch and he heard shots?
"THE WITNESS: Yes, sir.
"THE COURT: That he saw two people come out with one wearing a tan coat or a beige coat and another one who he couldn’t describe, and they went and got straight into the car?
"THE WITNESS: Yes, I remember.
"THE COURT: And then after hearing the shots he saw somebody come out who hesitated, looked around and then got into the car?
"THE WITNESS: That’s what he said.
"THE COURT: Did you know him?
"THE WITNESS: No.
"THE COURT: Have you ever seen him before in your life?
"THE WITNESS: In the neighborhood.
"THE COURT: Had you ever done anything to him?
"THE WITNESS: No.”
The trial court improperly assumed a prosecutorial role. The above colloquy rejected defendant’s credibility and implied judicial support of the prosecution witness’s testimony. Such partiality quite possibly could have influenced the jury to the detriment of defendant’s case. People v Roby, supra.
In order to escape prejudicial error under People v Piscunere, 26 Mich App 52; 181 NW2d 782 (1970), the questioning and comments by the trial judge must be limited in scope, material to the issue, and must not communicate to the jury any opinion that the trial judge may have regarding these matters. We have no other recourse but to find that defendant was denied a fair and impartial trial despite the evidence presented. People v Smith, 363 Mich 157; 108 NW2d 751 (1961).
Defendant also contends that the trial judge committed reversible error in failing to give a cautionary instruction regarding accomplice testimony. No such instruction was requested, but it has been held in People v McCoy, 392 Mich 231, 240; 220 NW2d 456 (1974), that it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge when the issue is "closely drawn”. We find that the issue of guilt or innocence was closely drawn in the instant case. Since there were no eyewitnesses to the actual shooting, the question came down to whom to believe, the defendant or the accomplices. Moreover, the trial judge, through his questioning of defendant, cast a cloud of judicial skepticism over defendant’s testimony. Under these circumstances, the trial court should have sua sponte given the jury a cautionary instruction as to the weight and credibility which should be accorded to the testimony of the accomplices, particularly here where one of the accomplices, McKinney, admitted that he would like to help either himself or his friend, Daniels, the other accomplice. A cautionary instruction as to accomplice testimony would have acted as a safeguard for the defendant:
" 'Testimony of an accomplice has been held to be fraught with weakness due to the effect of fear, threats, hostility, motives, or hope of leniency. The consideration of the infirmities of this kind of testimony goes to the credibility of the evidence, and the law requires that such testimony be closely scrutinized and accepted with caution. * * * It has been said that a skeptical approach to accomplice testimony is a mark of the fair administration of justice.’ ” People v Love, 43 Mich App 608, 611; 204 NW2d 714 (1972).
Defendant also contends that the trial court never clearly told the jury that it could find defendant not guilty of second-degree murder. At the close of his final charge to the jury, the judge summarized the possible verdicts as to Count I, the first-degree felony murder count, as follows:
"Your possible verdicts are as to Count I, not guilty or guilty of murder in the first degree or guilty of murder in the second degree.”
While we wish that the trial judge had been clearer in his instruction, we find that the above ambiguity is resolved when the final charge is read as a whole. The jury was also instructed that, "If you find the defendant guilty of murder, it is your duty to state in your verdict whether he is guilty of murder in the first degree or guilty of the lesser offense of murder in the second degree.” This instruction indicated to the jury that they were to decide first whether defendant was guilty of murder; if they so found, then it was necessary to decide what degree. Moreover, general instructions as to the burden of proof and reasonable doubt underscored the option of a not guilty verdict. We do hope, however, that the trial court will be more clear in the future.
As to defendant’s remaining allegations of error, we find them to be without merit.
Reversed and remanded. | [
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D. C. Riley, P.J.
On October 3, 1977, defendant was plea-convicted of larceny in a building, contrary to MCL 750.110; MSA 28.305. He was subsequently sentenced to four years of probation, including six months in the Crawford County jail and was given credit for 30 days served prior to sentencing. On May 31, 1978, he was arrested for violating his probation. Defendant’s probation was revoked at a hearing held on July 10, 1978, at which time he was sentenced to 32 to 48 months in prison, with credit for time served between his second arrest and sentence. Defendant now appeals as of right, claiming that he was improperly denied credit, at this second sentencing, for time served prior to and during his first sentence.
The Michigan statute, MCL 769.11b; MSA 28.1083(2), provides for presentence credit under certain limited circumstances:
"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bonds for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”
Defendant first contends that this statute mandates credit against his second sentence for the 30-day period served prior to sentencing on the offense of larceny in a building. Although this period falls literally under the statute in that it was "prior to sentencing” (after the probation violation), we will not interpret the statute in this manner. Defendant has already received the 30-day credit against his original sentence. We believe that the statute only envisions a one-time issuance of credit rather than any multiple grant for the same period. Defendant’s contrary claim must therefore be rejected.
Defendant also asserts that he should receive credit for the six months served in jail pursuant to the initial sentence.
The probation statute provides that:
"In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.” MCL 771.4; MSA 28.1134.
It is clear that the statute’s legislative intent is to allow the imposition of full punishment following probation revocation regardless of any previous sentence. People v Stange, 91 Mich App 596, 599; 283 NW2d 806 (1979). The portion of probation served in jail need not be credited against any term imposed for violation of probation. Stange, supra, 589-599, People v Lacy, 54 Mich App 471, 473-474; 221 NW2d 199 (1974), People v Jaynes, 23 Mich App 360, 361-362; 178 NW2d 558 (1970). Thus, defendant is not entitled to credit against his present sentence for jail time served under the original sentence.
Affirmed.
R. B. Burns, J., concurred. | [
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] |
T. M. Burns, P.J.
Plaintiff, Robert Wines, appeals of right a May 3, 1978, decision of the Michigan Employment Relations Commission that affirmed a prior decision of an administrative law judge to dismiss plaintiff’s unfair labor practice complaint because plaintiff had failed to file this action within the time period of the appropriate statute of limitations. MCL 423.216(a); MSA 17.455(16)(a). We reverse.
In October, 1974, plaintiff, a police officer employed by the defendant City of Huntington Woods, took a competitive examination for promotion to the rank of police sergeant. The examination consisted of an oral and a written portion. After the scores on the written test had been tabulated but before the oral test had been given, plaintiff was advised of his written score and of the fact that this score placed him second highest among the persons who had taken the examina tion. Defendant did not divulge to plaintiff the names or the positions of those who had scored above and below him.
Subsequently, plaintiff completed the oral portion of the examination, and, in January, 1975, he was advised of the results of this portion of the test by the director of the Huntington Woods Police Department. However, plaintiff was informed only of his standing among those who had taken the test and was not told the identity of those who scored above or below him or the difference between his and other scores. Plaintiff also alleges that he was never advised of his compiled score but that the top three candidates for the sergeant position, based upon their total scores on the examination, were posted alphabetically. The director of the police department informed plaintiff that his competitive position was second among the three finalists.
Plaintiff requested the scores of the other persons who had taken the examination. On separate occasions, both the director of the police department and the city manager refused to divulge this information. After a conversation with his attorney in 1978, plaintiff discovered that a procedure was available by which he could compel delivery of the scores. Thereafter, plaintiff demanded and received the scores of the 1975 examination.
Upon inspecting the scores plaintiff discovered that they had been improperly totalled by the city manager. Plaintiff contends that, if they had been properly computed, he would have had the top score on the examination and would have been promoted to the rank of sergeant. Plaintiff alleges that his score and the score of another person who had taken the test were intentionally miscalculated because of their affiliation with a police officers’ union. Defendant denies these allegations. No proof was taken on them however, because defendant’s motion to dismiss for the failure of plaintiff to comply with the statute of limitations was granted.
In pertinent part, MCL 423.216(a); MSA 17.455(16)(a), which sets forth the period of limitations for actions alleging unfair labor practices, provides:
"Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the commission, or any agent designated by the commission for such purposes, may issue and cause to be served upon the person a complaint stating the charges in that respect, and containing a notice of hearing before the commission or a commissioner thereof, or before a designated agent, at a place therein fixed, not less than 5 days after the serving of the complaint. No complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the fling of the charge with the commission and the service of a copy thereof upon the person against whom the charge is made, unless the person aggrieved' thereby was prevented from filing the charge by reason of service in the armed forces, in which event the 6-month period shall be computed from the day of his discharge.” (Emphasis supplied).
Unquestionably, plaintiffs complaint with the MESC was not filed within six months of the date that his test scores allegedly were altered, or within six months of the date that he was refused access to the scores of all persons who had taken the examination. Plaintiff argues, however, that his claim was not stale for two reasons: first, the period of limitations set forth in this statute should be held to commence running only when the employee knows or should know of the alleged unfair labor practice and, second, the period of limitations should be deemed tolled during the time that an employer engages in fraudulent concealment of an unfair labor practice. We agree.
No Michigan appellate court has been called upon previously to address the limitations period contained in this statute. However, in cases where this Court has interpreted the limitations provisions in other statutes regulating public employment, it has inferred the existence of tolling periods even though the involved statute did not provide explicitly therefor.
In Solomon v Highland Park Civil Service Comm, 47 Mich App 536, 540; 209 NW2d 698 (1973), lv den 390 Mich 790 (1973), this Court considered essentially the same issue before us here, but in the context of the limitations provision of MCL 38.514; MSA 5.3364, which applies to the removal or suspension of police officers and firefighters. Although the Court disagreed with the trial judge’s application of the limitations period to the facts before it, it affirmed the judge’s ruling that the 90-day limitations period did not begin to run until the discharging authority had actual knowledge of an employment violation. Similarly, in Hunn v Madison Heights, 60 Mich App 326, 333; 230 NW2d 414 (1975), this Court reaffirmed the holding of Solomon and held that charges against a police officer were brought timely when they were filed with a municipal civil service commission within 90 days of the date of actual notice of the alleged wrongdoing, even though more than 90 days had expired since the date of the misconduct.
In Werner v Macomb County Civil Service Comm, 77 Mich App 533, 538; 258 NW2d 549 (1977), lv den 402 Mich 836 (1977), this Court found that the 90-day limitations period of MCL 51.362; MSA 5.1191(112), which concerns the discharge and suspension of civil service employees of county sheriff departments, "runs from the time the discharging authority has knowledge of the misconduct”. The Court held this to be true despite the plain language of the statute involved, which the Court conceded seemed to "indicate that if the discharging authority does not discover the misconduct or does not act within 90 days of the misconduct itself, no subsequent action is justified”. 77 Mich App 533, 537.
We see no valid reason to interpret the statute before us in a manner other than one consistent with the interpretations given the statutes involved in the above cases. To hold otherwise would allow unscrupulous employers to conceal unfair labor practices until expiration of the six-month limitations period and thus preclude relief for violations of their employees’ rights. We hold, therefore, that, where a plaintiff-employee has no actual knowledge or reason to know of an unfair labor practice, the limitations period of MCL 423.216(a) is tolled. In light of this disposition we find it unnecessary to address a second issue raised by plaintiff as to whether the statute of limitations would be tolled under the doctrine of fraudulent concealment. See, DeHaan v Winter, 258 Mich 293; 241 NW 923 (1932), MCL 600.5855; MSA 27A.5855.
Reversed and remanded for further proceedings consistent with this opinion. Costs to abide final outcome. We do not retain jurisdiction. | [
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Holbrook, Jr.,
P.J. Plaintiff appeals as of right from an order denying her motion for summary disposition and granting defendant summary disposition pursuant to MCR 2.116(I)(1). Plaintiff’s motion for summary disposition argued that Detroit Ordinances 2-91, ch 9, art 16 and 3-91, ch 9, art 16 were invalid because (1) they were not properly published and (2) they authorized searches without warrants in violation of the Fourth Amendment. In a written opinion, the trial court denied plaintiffs motion and found that defendant was entitled to judgment as a matter of law. We reverse and remand.
Plaintiff argues that the trial court erred in determining that defendant had legally adopted and published the ordinances. In Ordinance 2-91, defendant adopted the BOCA National Property Maintenance Code/1990 (hereinafter BOCA maintenance code) by reference without publishing it in its entirety. Ordinance 3-91 provided in part for inspections of buildings for compliance with the BOCA maintenance code. Whether the ordinances were properly adopted and published is a question of law that is reviewed de novo on appeal. Brucker v McKinlay Transport, Inc (On Remand), 225 Mich App 442, 448; 571 NW2d 548 (1997).
Defendant based the legality of its adoption by reference of the BOCA maintenance code on MCL 117.3(k); MSA 5.2073(k):
Section 117.3(k) of the Michigan Compiled Laws, as amended, provides that each city shall have power, whether so provided in its charter or not, to adopt by reference in an Ordinance any model code which has been promulgated by an organization or association which is organized and conducted for the purpose of developing any such code. [Ordinance 2-91, § 9-16-5 (emphasis added).]
We conclude that defendant’s reliance on MCL 117.3(k); MSA 5.2073(k) was based on an erroneous reading of the statute. MCL 117.3(k); MSA 5.2073(k) reads in pertinent part:
Whether or not provided in its charter, a city may adopt a ... code ... that [has] been promulgated and adopted by an authorized agency of the state pertaining to fire, fire hazards, fire prevention, or fire waste, and a fire prevention code, plumbing code, heating code, electrical code, building code, refrigeration machinery code, piping code, boiler code; boiler operation code, elevator machinery code, or a code pertaining to flammable liquids and gases, as well as to hazardous chemicals, that has been promulgated by this state, by a department, board, or other agency of this state or by an organization or association that is organized and conducted for the purpose of developing the code, by reference to the code in an adopting ordinance and without publishing the code in full.
“Statutory interpretation is a question of law reviewed de novo on appeal.” People v Williams, 226 Mich App 568, 570; 576 NW2d 390 (1997). “The overriding goal guiding judicial interpretation of statutes is to discover and give effect to legislative intent.” People v Parker, 230 Mich App 677, 685; 584 NW2d 753 (1998).
MCL 117.3(k); MSA 5.2073(k) includes two separate lists of specific code subjects that can be adopted by reference. The authorized sources for these codes are also clearly spelled out. The subjects included in the first list can be adopted by reference to a code that has “been promulgated and adopted by an authorized agency of the state.” The types of codes included are those “pertaining to fire, fire hazards, fire prevention, or fire waste.” The second list permits adoption by reference to certain specific types of codes “promulgated by this state, by a department, board, or other agency of this state or by an organization or association that is organized and conducted for the purpose of developing the code, by reference to the code in an adopting ordinance and without publishing the code in full. ” (Emphasis added.) The types of codes authorized in the second list are: “a fire prevention code, plumbing code, heating code, electrical code, building code, refrigeration machinery code, piping code, boiler code, boiler operation code, elevator machinery code, or a code pertaining to flammable liquids and gases, as well as to hazardous chemicals.”
The second list does not include any language indicating that the fist is not exhaustive. For example, the second list is not modified either by the phrase, “includes, but is not limited to,” or by a specific inclusive reference to “any other codes” that may have been promulgated by the listed entities. See MCL 66.4; MSA 5.1274 (“A village may adopt a plumbing code, electrical code, mechanical code, fire protection code, building code, or other code . . . .”). Accordingly, given that the second list does not include property maintenance codes, we conclude that defendant’s reliance on MCL 117.3(k); MSA 5.2073(k) was misplaced. See United States Fidelity & Guaranty Co v Amerisure Ins Co, 195 Mich App 1, 5-6; 489 NW2d 115 (1992) (observing “that the express mention of one thing in a statute implies the exclusion of other similar things”). See also OAG, 1977-1978, No 5280, p 394 (March 23, 1978).
We now turn to the question whether defendant’s adoption of the BOCA maintenance code by reference was nonetheless justified even though it was not sanctioned by MCL 117.3(k); MSA 5.2073(k). In L A Thompson Scenic R Co v McCabe, 211 Mich 133; 178 NW 662 (1920), our Supreme Court examined the legislative forerunner to Detroit Charter, § 4-114(1), ¶ 2. The question at issue was whether a building code that had been “ ‘ “approved by the commissioner of buildings and safety engineering” ’ ” and deposited “ ‘ “in the custody of the city clerk,” ’ ” could be adopted by reference in an ordinance passed by the Detroit common council. Id. at 136 (quoting the circuit court, which in turn was quoting from the ordinance at issue). The Thompson Court indicated that adoption of such a code by reference was a legitimate procedure provided that the code was already a public record. Id. at 138. The Thompson Court concluded that the building code at issue could not be characterized as a public record because it had not been “enacted into legislation or ordained by the common council, nor had it received the approval of the mayor or become operative without such approval.” Id. Mere filing of the code with the city clerk did not by itself make it a matter of public record. Id.
The legitimacy of adoption by reference to a public record was also approved in Village of Durand v Love, 254 Mich 538, 540; 236 NW 855 (1931): “An ordinance sometimes may refer to a public record already established by lawful authority and become effective without publication of such record as part of the ordinance.” However, the Durand Court specifically observed that “[a]n ordinance cannot at the same time establish a paper as a public record and also incorporate it by reference as a previously established public record.” Id. at 540-541.
Here, there is no evidence that the BOCA maintenance code was made a part of the public record before it was adopted by reference in Ordinance 2-91. Mere filing of the BOCA maintenance code with the city clerk was not enough to make it a public record. Thompson, supra at 138. Nor was the BOCA maintenance code transformed into a public record by the very ordinance that adopted it by reference. Durand, supra at 540-541.
Defendant argues that Thompson should not control our resolution given that the case was based in part on the following language found in 1915 Detroit Charter, tit 3, ch 1, § 17: “No ordinance shall be revised, altered or amended by reference to its title only, but the section or sections of the ordinance altered or amended shall be re-enacted and published at length.” The parties agree that this provision was revised by § 4-114(1), ¶ 2, which provides: “Any ordinance which repeals or amends an existing ordinance or part of the city Code shall set out in full the ordinance, sections, or subsections to be repealed or amended, and shall clearly indicate matter to be omitted and new matter to be added.” Defendant asserts that the revised language found in § 4-114(1), ¶ 2 signals that the restrictions placed by the Thompson Court on adoption by reference have been relaxed. We disagree.
“The prevailing rules regarding statutory construction . . . extend to the construction of home rule charters.” Detroit v Walker, 445 Mich 682, 691; 520 NW2d 135 (1994). “When the language of a charter provision is unambiguous and specific it is controlling. . . . If a charter provision is ambiguous it must still be interpreted in a manner consistent with reason and with the goal of determining the purpose and intent of the framers and public.” Detroit Fire Fighters Ass'n v Detroit, 127 Mich App 673, 677; 339 NW2d 230 (1983). We believe that the language of § 4-114(1), ¶ 2 is ambiguous, and we therefore turn to the rules of statutory construction for guidance.
While changes in statutory language can signal a change in meaning, they can also “reflect an attempt to clarify the meaning of a provision rather than change it.” Meyer Jewelry Co v Johnson, 229 Mich App 177, 183; 581 NW2d 734 (1998). See also Indenbaum v Bd of Medicine (After Remand), 213 Mich App 263, 282; 539 NW2d 574 (1995) (“When interpreting a statute, a court must not confuse style with substance.”). We believe that the question whether the language of § 4-114(1), ¶ 2 reflects a change in meaning or a change in style is answered by the official approved commentary to the section. The commentary observes that “[s]ubsection (1) is a revision of provisions contained in section 17 of title 3, chapter 1 of the present charter and makes no substantial changes” (emphasis supplied). We find this explanation for the changes in the language of the ordinance to be of great importance because “when ambiguity exists, courts are to give effect to [legislative intent].” Gebhardt v O’Rourke, 444 Mich 535, 543; 510 NW2d 900 (1994). Further, the Michigan Supreme Court appears to have previously sanctioned the use of official commentary to the Detroit Charter as an interpretative aid by rejecting certain arguments regarding interpretation of that charter “because [those arguments] ignore the language of the city charter and its instructive commentaries.” Detroit v Walker, 445 Mich 682, 695; 520 NW2d 135 (1994) (emphasis supplied). We consider a change in procedure that would allow for adoption of a code by refer ence even though it is not a part of the public record to be a substantial change. Therefore, given that parts of the BOCA maintenance code provide for fines and even imprisonment for violations thereof, we believe that the limitations identified in Thompson on defendant’s power to adopt ordinances that have the effect of a penal statute are implicated by § 4-114(1). See Thompson, supra at 139.
Accordingly, we conclude that even though § 4-114(1), ¶ 2 no longer specifically uses the phrase “amended by reference,” defendant must still abide by the limitations on the process of adoption by reference that predated its enactment. Therefore, because the procedure followed in adopting the BOCA maintenance code by reference was neither authorized by MCL 117.3(k); MSA 5.2073(k) nor in keeping with the limitations inherent in § 4-114(1), ¶ 2, we hold that the boca maintenance code was not properly adopted. Thus, we conclude that Ordinances 2-91 and 3-91 are invalid.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Whttbeck, J., concurred.
MCR 2.116(1) (1) reads: “If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay."
Boca is an acronym for Building Officials & Code Administrators International, Inc. The boca maintenance code is not the same as the boca building code, versions of which have been promulgated by the state.
At heart, our decision rests on the decision of the Michigan Supreme Court in Thompson, supra. It may be questionable whether Thompson correctly interpreted the pertinent provisions of the predecessor Detroit Charter at issue in that case. In any event, it is clear that, in adopting the corresponding charter provisions applicable to this case, there was no intent by the drafters or the people of Detroit to work a substantive change. Thus, the holding of Thompson remains in force despite the technical changes in the language of the charter. As an intermediate appellate court, this Court remains bound by the Michigan Supreme Court’s decision in Thompson.
Because plaintiff’s first issue is dispositive, we need not address the constitutional issues raised. Detroit v Sledge, 223 Mich App 43, 47; 565 NW2d 690 (1997). | [
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Per Curiam.
Plaintiff Patricia Gormely Prince alleged several theories of liability against defendants after the parties’ employment relationship ended acrimoniously. Plaintiff prevailed on her breach of contract claim and her stock valuation claim. She did not, however, prevail on her religious discrimination claim and she cross appeals, raising evidentiary issues with regard to that claim. While defendant MacDonald & Goren, PC., prevailed on its counterclaim against plaintiff for breach of fiduciary duty, it was sanctioned jointly and severally with defendant Harold MacDonald for litigant misconduct. Defendant Harold MacDonald appeals as of right from the order granting sanctions. We affirm.
On May 23, 1996, the day before the scheduled trial date, defendant MacDonald filed a bankruptcy petition on behalf of MacDonald & Goren, P.C. The next morning he informed the trial court about the filing of the petition. According to plaintiff, defendant MacDonald also represented to the court, and convinced the court, that the trial could not proceed against him personally because of the bankruptcy. He then offered a nominal amount in an attempt to settle the case, which amount plaintiff refused to accept. The trial was adjourned.
On May 31, 1996, MacDonald & Goren, P.C., filed a motion to dismiss its own bankruptcy petition, claiming that it unexpectedly received money and the bankruptcy filing was no longer necessary. The bankruptcy court did not grant the motion, but instead dismissed the case because of defects in the filing of the petition, including a failure to include the necessary matrix, schedules, and statements. Plaintiff subsequently moved in the bankruptcy court to reopen the case and make a determination regarding whether the filing was in bad faith. The bankruptcy court denied plaintiffs motion. Plaintiff then moved for sanctions in the trial court. A hearing with regard to the sanc tion motion was held and, after trial in the underlying matter, the trial court issued its findings of fact and awarded sanctions to plaintiff in the amount of $43,203. The trial court stated, in part:
The Bankruptcy Petition was hastily put together by Defendants, the rules were not followed, a limited disclosure was attempted by listing only two of the firm’s creditors, and the Defendants misrepresented the firm’s assets in the Petition. The bankruptcy filing was in bad faith. The permissible and appropriate inferences are that (a) the bankruptcy proceeding was used in an attempt to reach a nominal settlement of this case through misrepresentation, or (b) the bankruptcy was filed to otherwise delay these proceedings, cause increased expense and hardship to the Plaintiff and causing unnecessary burden to this Court, under circumstances where the Defendants had no intention of following through with the bankruptcy.
Further, Defendant Harold C. MacDonald suggested the filing was because of a cash flow problem and because of his firm’s pending eviction. The facts do not support these claims. The Court finds that Defendant’s testimony is not credible. Finally, the Court finds that Defendants deliberately and improperly delayed the trial.
For its wrongful conduct, the Court finds the Defendants’ action is sanctionable.
In sanctioning defendants, the trial court relied on its inherent authority to sanction litigant misconduct. Cummings v Wayne Co, 210 Mich App 249, 252-253; 533 NW2d 13 (1995). It also noted that courts have inherent power to sanction the bad-faith or vexatious use of collateral proceedings. See In re Powell Estate, 160 Mich App 704, 718-719; 408 NW2d 525 (1987).
Defendant recognizes that trial courts generally have power to sanction litigant misconduct. He argues, however, that a trial court does not have jurisdiction under circumstances where the litigant mis conduct involves the filing of a bankruptcy petition. We disagree that in circumstances such as those present here, a trial court has no authority to sanction a defendant for engaging in dilatory tactics aimed at interfering with a state court proceeding.
This is an issue of first impression, and we note that there is no law to support preemption of a state court’s right to sanction a defendant for engaging in misconduct in an underlying state-law case. Defendant cites Koffman v Osteoimplant Technology, Inc, 182 Bankr 115 (D Md, 1995), to support his position that the trial court could not order him to pay sanctions. Our reading of Koffman leads to a contrary conclusion.
In Koffman, the plaintiff filed an action against the defendant in the district court after several involuntary bankruptcy petitions against the defendant were dismissed by the bankruptcy court. The defendant filed counterclaims for civil conspiracy, abuse of process, and malicious prosecution arising out of the plaintiff’s conduct while the bankruptcy was proceeding. Specifically, the plaintiff had previously filed a district court action in violation of the automatic stay that was in effect because of the involuntary petitions. The plaintiff had also filed an emergency motion for a restraining order and injunction in the bankruptcy court, which motion was allegedly supported by a false affidavit. Id. at 119.
The plaintiff argued that the defendant’s claims of abuse of process and malicious prosecution were preempted by federal bankruptcy law. Id. at 123. Thus, the court addressed “whether federal remedies . . . preempted] the state law causes of action alleged in the counterclaim.” Id. (emphasis added). In ruling that the state-law causes of action were preempted, the court stated:
Because Congress has the constitutional power to preempt state law, ... as well as the constitutional power to enact laws governing bankruptcies, ... a number of courts have concluded that, by enacting the Bankruptcy Code, Congress has preempted some state activity on matters affecting bankruptcy. ... On the other hand, because the common law of the various states provides much of the legal framework for the operation of the bankruptcy system, it cannot be said that Congress has completely preempted all state regulation which may affect the actions of parties in bankruptcy court. “Where the Bankruptcy Code is silent, and no uniform bankruptcy rule is required, the rights of the parties are governed by the underlying non-bankruptcy law.” . . . Remedies and sanctions for improper behavior and filings in bankruptcy court, however, are matters on which the Bankruptcy Code is far from silent and on which uniform rules are particularly important. [Id. at 123-124 (citations omitted; emphasis added).]
The court discussed the two specific sections of the Bankruptcy Code, 11 USC 101 et seq., pertinent to the case, including 11 USC 303(i), the statutory subsection that addresses sanctions against creditors who file involuntary petitions in bad faith, and 11 USC 362(h), which addresses individuals who are injured by violations of an automatic stay. In addition, it noted:
[T]he Bankruptcy Code contains numerous other provisions directed toward regulating the use of the bankruptcy process and the conduct of the parties in bankruptcy court. For example, 11 USC § 105(a) provides that the court “may issue any order, process, or judgment that is necessary or appropriate ... to prevent an abuse of process." Other remedies include 11 USC § 727(a)(4)(B), which authorizes a denial of discharge for presenting fraudulent claims, Rule 1008 of the Federal Rules of Bankruptcy Procedure, which requires filings to “be verified or contain an unsworn declaration” of truthfulness under penalty of perjury, and Rule 9011, which authorizes sanctions for signing certain documents not “well grounded in fact and . . . warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” [Id. at 124.]
While indicating that the Bankruptcy Code and bankruptcy rules include remedies and sanctions, the Koffman court explicitly determined that not all state court remedies are preempted:
Although the Bankruptcy Code includes all the remedies described above, as well as others, these provisions, standing alone, are insufficient to imply congressional intent to preempt all state activity in the area. The mere existence of a detañed and extensive regulatory scheme does not by itself imply an intent to preempt state remedies. ... In addition, courts must consider whether there are “special features” which warrant preemption. [Id. at 125.]
The court then concluded that there were special features that warranted the preemption of the common law causes of action. Id. (emphasis added). Specifically, the court noted that “allowing state law tort suits to go forward would prejudice the operation of the Bankruptcy Code in an impermissible manner. Parties could be deterred from exercising their rights in bankruptcy if, by filing a bankruptcy petition, they risk being faced with a state court lawsuit and liability for substantial damages.” Id. at 125-126. The Koffman court found the reasoning set forth in Gonzales v Parks, 830 F2d 1033, 1035 (CA 9, 1987), to be persuasive.
The [Gonzales] court reasoned that allowing such claims to go forward would result in a state court determining whether relief is justified under a federal law, in a federal court, on matters within the federal court’s exclusive jurisdiction. . . . State courts would develop standards as to when persons could properly seek relief in federal court for claims which Congress has specifically precluded the state courts from adjudicating themselves. [Koffman, supra at 125.]
In Gonzales, supra, the defendant filed a state court action for abuse of process after the plaintiff had filed for bankruptcy and the automatic stay was in place. The abuse of process action was also decided by the trial court while the automatic stay was in place. The appellate court ruled that the abuse of process action was preempted. In doing so, it indicated that state courts áre not authorized to determine whether a claim fpr relief in the bankruptcy court is appropriate. Id. at 1035. The trial court usurped the authority of the bankruptcy court by ruling that the ongoing bankruptcy petition was filed in bad faith and had no merit. In ruling on the preemption issue, the Gonzales court was concerned with the possibility of substantial damage awards being rendered against debtors for abuse of process. Id. at 1036. And, it stressed that the “mere possibility of being sued in tort in state court could deter people from exercising their rights.” Id. at 1036. See also MSR Exploration, Ltd v Meridian Oil, Inc, 74 F3d 910, 914 (CA 9, 1996) (malicious prosecution actions are preempted).
This case is unlike Gonzales, supra, Koffman, supra, or MSR Exploration, supra, in that plaintiff here did not file any cause of action against defendant for his misuse of the bankruptcy proceeding. Thus, there was no risk that substantial damages would be awarded against defendant for his conduct. The sole risk in this case was that defendant would have to pay the costs and attorney fees associated with his wrongful delay of the state court proceeding. This is a risk that all litigants, not only litigants who file for bankruptcy, take when they improperly interfere with trial court proceedings.
In addition, the trial court, in this case, was not called on to adjudicate whether relief was justified for defendant under federal law. Rather, the bankruptcy court itself made the determination that defendant’s petition failed to comply with the necessary prerequisites. The trial court then decided that defendants improperly interfered with the state court proceeding and sanctioned the conduct accordingly. The trial court made findings of fact and concluded that defendants’ conduct was for the purpose of delaying the state court case and trying to obtain a nominal settlement. The trial court did not, unlike the state court in Gonzales, supta, usurp any authority of the bankruptcy court.
Moreover, no particular section of the Bankruptcy Code governs this case. There is no specific statute giving the bankruptcy court authority, and certainly not exclusive authority, to sanction a debtor for filing a petition solely in order to interfere with a state court proceeding. Thus, the Bankruptcy Code itself does not support defendant’s preemption argument. While Federal Rule of Bankruptcy Procedure 9011, the general sanction rule, does cover the situation, it is not determinative regarding the issue of preemption. FRBP 9011 gives the bankruptcy court authority to sanction a debtor, such as defendant, for numerous things, including filing petitions for improper purposes, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Nevertheless, that rule, standing alone, is insufficient to support defendant’s preemption argument. Koffman, supra at 125. And, there are no “special features” to support that Congress intended to preempt our state court’s right to sanction defendant MacDonald for improperly interfering with the underlying action.
We also note that there is case law to support that a court, other than a bankruptcy court, may sanction a litigant for utilizing a bankruptcy petition to forestall pending litigation. See Roberts v Heim, 184 Bankr 814, 822 (ND, Cal, 1995), where the district court determined that defendant TexOil’s filing of a bankruptcy petition was done in bad faith and constituted an “abusive litigation practice.” It made the determination that TexOil filed the collateral ;bank ruptcy proceeding in order to avoid the district court’s adverse ruling on a default motion brought by the plaintiffs. Id. at 819-820. Accordingly, the district court, not the bankruptcy court, sanctioned the defendant.
There is no valid reason to prohibit our state courts from sanctioning a defendant for intentionally using a collateral proceeding to delay a trial or try to force a nominal settlement. The congressional purpose of allowing the bankruptcy court to sanction litigants for misusing the bankruptcy process would not be frustrated by allowing a state court to maintain its authority to sanction litigants for purposefully interfering with pending state court actions, even if the interference is through the use of a defective bankruptcy petition. We emphasize that the validity of the petition in this case was determined by the bankruptcy court itself, which administratively dismissed it because of its numerous deficiencies. We affirm the award of sanctions.
We also affirm the evidentiary rulings of the trial court with respect to plaintiff’s religious discrimination claim. We do so because plaintiff has abandoned these issues on appeal. She argues that excluded evidence was relevant to demonstrate defendant’s predisposition to discriminate on the basis of religion and was relevant to the issue of constructive discharge. Thus, she concludes that because the evidence was relevant, it should have been admitted. Her argument completely fails to take into account and address that the trial court excluded the evidence at issue on grounds other than relevance. Specifically, the trial court excluded a letter from defendant MacDonald to a former shareholder on the grounds that the evidence was more prejudicial than probative. With regard to testimony about another religious discrimination lawsuit, it appears that the trial court excluded it on the ground that plaintiff had failed to plead that she was discriminated against as part of a pattern of discrimination and because the “fact that somebody else files a lawsuit” is not probative of the matter. Finally, the trial court excluded testimony about defendant’s views and the views of born-again Christians regarding the role of women. It did so because defendant had not filed a gender discrimination claim and the issue was more appropriate for a gender claim.
It is axiomatic that where a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by this Court. See In re JS & SM, 231 Mich App 92, 98; 585 NW2d 326 (1998); People v Kent, 194 Mich App 206, 209-210; 486 NW2d 110 (1992). And, where a party fails to cite any supporting legal authority for its position, the issue is deemed abandoned. Schellenberg v Rochester Elks, 228 Mich App 20, 49; 577 NW2d 163 (1998). Because plaintiff has failed to address the merits of the trial court’s evidentiary rulings and offer support for her position, the issues raised in her cross appeal with regard to the religious discrimination claim are abandoned.
Affirmed.
Defendant MacDonald & Goren, P.C., does not have an appeal pending before this Court at this time.
This Court has not been provided with any transcripts from the bankruptcy court proceedings. Thus, this Court is not able to determine why the bankruptcy court denied the motion.
We note that defendant does not take issue with the trial court’s finding that he did, in fact, engage in litigant misconduct.
In making this determination, we are mindful that the trial court made explicit findings regarding the issue of bad faith and the issue whether defendant MacDonald & Goren, P.C., needed bankruptcy protection. We do not believe, however, that these explicit findings of fact usurped the bankruptcy court’s authority or warrant a finding that the state court took action that is preempted by bankruptcy law. We do so because even though the trial court went into great detail concerning how the bankruptcy process was abused by defendants, it did not have to in order to support an award of sanctions. The bankruptcy court’s finding that the petition was faulty, along with the fact that defendants made no attempts to rectify the deficiencies and along with the fact that the bankruptcy was timed to interfere with the trial date and used to try to reach a nominal settlement, was sufficient to support the award of sanctions. | [
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Whitbeck, J.
Plaintiff Ayesha Haque appeals as of right an Oakland County Probate Court order vacating appointment of fiduciary and an Oakland Circuit Court order denying superintending control. We affirm in part, reverse in part, and remand for further proceedings.
I BASIC FACTS AND PROCEDURAL HISTORY ~
On October 16, 1997, Haque filed a petition for commencement of proceedings with the probate court requesting that her decedent’s will be -admitted to probate and that administration be granted to her as the personal representative named in the will. The petition indicated that Haque’s decedent died on April 25, 1995, at the age of forty-three. The petition further indicated that on the date of his death, Haque’s decedent was a resident of Columbus, Indiana; and was survived by his wife—Haque—and a nineteen-year-old son and a fourteen-year-old daughter, all of whom, at the time the petition was filed, resided in California. Most importantly, the petition stated that Haque’s decedent “left an estate to be administered in this County” and inserted the phrase “Cause of action wrongful death” in the line following the category “Personal estate.” According to Haque, the statute of limitations on any wrongful death claim would expire at the end of the day on October 17, 1997. Haque further stated that she sought appointment as personal representative “so that she might file a wrongful death claim that day in the Circuit Court.”
On the same day that the petition was filed, October 16, 1997, the probate court, issued restricted letters of authority, appointing Haque as “temporary per sonal representative” of her decedent’s estate. However, the probate court included the following restriction on the letters of authority:
The temporary personal representative has authority only to give notice to interested parties of a hearing to determine whether Oakland County is the proper venue in which to open this estate.
On October 17, 1997, according to intervening appellee William Beaumont Hospital, Haque filed a wrongful death action in the Oakland Circuit Court against Beaumont. The parties give this Court no further information with respect to this action and its status is basically irrelevant to the issues here.
On October 20, 1997, the probate court issued an order vacating appointment of fiduciary. This order stated that it denied “the request for Judicial Review to accept venue in this matter,” that it vacated the appointment of Haque as temporary personal representative, and that it vacated the “Acceptance of Trust and Restricted Letters of Authority.”
On October 22, 1997, Haque filed a complaint for superintending control in the Oakland Circuit Court. Haque averred that she and her decedent were domiciled in Columbus, Indiana, on April 25, 1995, but that between April 17, 1995, and April 25, 1995, her decedent was a patient in Beaumont. Haque alleged that, as a result of treatment received at Beaumont, her decedent died on April 25, 1995. She further alleged that at the time of her decedent’s death, no probate proceedings were instituted in Indiana because Haque had full rights of survivorship regarding all of her decedent’s property. Haque alleged that her attempt to institute probate proceedings in the probate court was in conformity with the Michigan wrongful death act, MCL 600.2922; MSA 27A.2922, and the Revised Probate Code, MCL 700.21; MSA 27.5021, but that, nevertheless, the probate court refused to allow Haque to open an estate. Haque further alleged that the effect of the probate court’s October 20, 1997, order was to deny a nonresident plaintiff access to Michigan courts and to improperly limit the jurisdiction of the probate court. On October 29, 1997, the circuit court entered an order denying superintending control. Haque appeals the probate court’s October 20, 1997, order vacating appointment of fiduciary and the circuit court’s October 29, 1997, order denying superintending control.
II. STANDARD OF REVIEW
A. SUBJECT-MATTER JURISDICTION
Statutory interpretation and a determination whether subject-matter jurisdiction exists are questions of law reviewed de novo on appeal. Lane v Kindercare Learning Centers, Inc, 231 Mich App 689, 695; 588 NW2d 715 (1998); Smith v Smith, 218 Mich App 727, 729; 555 NW2d 271 (1996).
B. SUPERINTENDING CONTROL
“The grant or denial of a petition for superintending control is within the sound discretion of the court.” In re Goehring, 184 Mich App 360, 366; 457 NW2d 375 (1990). Absent an abuse of discretion, we will not disturb the denial of such a request. Id.
m. SUBJECT-MATTER JURISDICTION
A. STATEMENT OF THE ISSUE
We consider the first issue on appeal to be whether a wrongful death cause of action constitutes an “estate” sufficient to invoke the jurisdiction of the probate court in the county in which the cause of action accrued.
B. RELEVANT STATUTORY PROVISIONS
The statute that defines probate court jurisdiction is MCL 700.21; MSA 27.5021:
The court has exclusive legal and equitable jurisdiction of all of the following:
(a) Matters relating to the settlement of the estate of a deceased person, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled out of state leaving an estate within the county to be administered, including, but not limited to, the following proceedings:
(i) The internal affairs of the estate.
(ii) Estate administration, settlement, and distribution.
(m) Declaration of rights involving estates, devisees, heirs, and fiduciaries.
(iv) The construction of a will.
(v) The determination of heirs.
The critical phrase, of course, with respect to a person such as Haque’s decedent, who at the time of his death was domiciled out of the state in Indiana, is the phrase “leaving an estate within the county to be administered.” MCL 700.4(6); MSA 27.5004(6) broadly defines an “estate” as
the property of the decedent or other person whose affairs are subject to this act as the property is originally constituted and as it exists during administration.
The wrongful death act, MCL 600.2922; MSA 27A.2922, does not directly tell us whether a wrongful death cause of action is part of a decedent’s “estate,” as defined in MCL 700.4(6); MSA 27.5004(6). Rather, the wrongful death act simply states:
(1) Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to. maintain an action and recover damages, the person who or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured .... ■
(2) Every action under this section shall be brought by, and in the name of, the personal representative of the estate of the deceased person. [MCL 600.2922; MSA 27A.2922.]
We observe that a wrongful death action therefore has two requirements: (a) a death or injuries causing death caused by the wrongful act, neglect, or fault of another and (b) the wrongful act, neglect, or fault was such that, if death had not ensued, the injured party would have had a cause of action for damages. We also observe that under the first requirement, there are two possible situations: (1) death, presumably meaning instantaneous death, or (2) injuries causing subsequent death. Under the former situation, the decedent obviously would not be able to bring suit. Under the latter situation, the injured party could, but was not required to, bring suit before that party died. If the injured party brought suit and the action was pending at the time of death, under MCL 600.2921; MSA 27A.2921, known as the survival act, the actions “may be amended to bring it under the next section” (e.g., under the wrongful death act, MCL 600.2922; MSA 27A.2922). If the injured party did not bring suit, that party’s “claim” survives death even though there was no action pending. See Theisen v Knake, 236 Mich App 249, 253; 599 NW2d 777 (1999):
In this case, the plain language of the statute [the Survival Act] states that “[a]ll actions and claims survive death.” It does not state that all pending actions and claims survive death. To read the term “pending” into the statute would amount to judicial construction where none is warranted. [Emphasis in the original.][ ]
In any event, the cause of action granted to the personal representative of a decedent’s estate by the wrongful death act is a derivative one in that the personal representative is required to show that the decedent could have maintained the action if death had not ensued. Maiuri v Sinacola Constr Co, 382 Mich 391, 396; 170 NW2d 27 (1969).
We also observe that probate courts are courts of limited jurisdiction and derive their jurisdiction and power from statutory authority. In re Wirsing, 456 Mich 467, 472; 573 NW2d 51 (1998); Manning v Amerman, 229 Mich App 608, 611; 582 NW2d 539 (1998).
C. THE EXISTENCE OF AN ESTATE
(1) INTRODUCTION
In the present case, it is uncontested that Haque’s decedent was domiciled in Indiana at the time of his death. Therefore, unless Haque’s decedent had an “estate” in Oakland County at the time of his death, there was nothing over which the probate court could assume jurisdiction. Haque asserts that a wrongful death cause of action constitutes “property of the decedent” such that her decedent could be considered to have had an “estate” in Oakland County that required administration. We agree.
(2) FINDLAY AND LOVE
In Findlay v Chicago & G T R Co, 106 Mich 700; 64 NW 732 (1895), the decedent was killed in a railroad accident and the administrator of her estate sued to recover damages for the death, claiming that the death was caused by the defendant railroad company. The Michigan Supreme Court was called on to consider whether, in circumstances where the “whole estate” of the decedent consisted of a right of action against the defendant railroad company, this right of action constituted assets of the estate. The wrongful death act then in existence was known as “Lord Campbell’s Act” and was frequently referred to as the “death act.” Section 8313 of Howell’s Annotated Statutes, adopted by the Legislature in 1848, stated:
[W]henever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured . . . .[ ]
Section 8314 of Howell’s Annotated Statutes stated:
Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate.
Section 5848 of Howell’s Annotated Statutes stated:
If such deceased person, at the time of his death, reside in any other State or country, leaving estate to be administered in this State, administration thereof shall be granted by the probate court of any county in which there shall be estate to be administered.
The Court, after reciting the three sections, then commented:
It is contended by defendant that the right of action for causing the death of the intestate does not constitute assets of the estate. We are of the opinion that the sections of the statute above quoted should be construed together. Section 8314 clearly contemplates that an administrator shall institute action, and distribute the funds received, if any. It could not have been contemplated by the legislature that the right to bring this action could be made to depend upon the question of whether the deceased left other property. We think it was clearly the purpose to treat this right of action as assets for distribution, and we hold, in accordance with the weight of authority, that it constitutes such assets, within the meaning of section 5848. [Findlay, supra at 702 (emphasis supplied; citations omitted).]
In Love v Detroit, J & C R Co, 170 Mich 1; 135 NW 963 (1912), the Michigan Supreme Court considered the circumstances of an accident in which a child was severely injured while attempting to cross a railway track. The child survived for about eight hours following his injuries and then died. Id. at 3. After the child’s death, the administrator for the child brought suit against the defendant railroad company under the then-existing version of the survival act. Id. at 3-4. The Court observed that the survival act applies to rights or causes of action as well as to actions and then stated:
A right of action is as much property as is a corporeal possession, and, under the survival act, vests at once in the injured person upon the inflicting of the negligent injury, and, upon his subsequent death, becomes an asset of his estate to be collected and distributed in accordance with the administration statutes. [Id. at 4-5 (citations omitted).]
Although the distribution scheme of the current wrongful death act differs from that applicable at the time of the Love and Findlay decisions, those decisions have not been overruled. The probate judge in her brief, however, notes that Love was decided under the survival act, not the wrongful death act. Unlike the probate court, however, we do not view this distinction as being fundamental. In Maiuri, supra at 394-395, the Supreme Court noted:
The present wrongful death act is an amalgamation of the remedies previously existing under the wrongful death and survival acts. It came about due to difficulties which had arisen under the previous acts as to the remedy if death resulted but was not known to have been instantaneous. Where the injuries result in death, survival and wrongful death actions now, by direction of the legislature, are to be brought under the wrongful death act. As a condition to a successful action under the wrongful death act, it must be shown that the decedent, if death had not ensued, could have maintained an action and recovered damages for his injuries. (RJA § 2922[1]). This is true even though the wrongful death act creates a new cause of action permitting recovery for the benefit of certain persons who had sustained pecuniary injury as a result of the decedent’s death. The language of the statute requiring that the decedent must have been able to maintain the action, “if death had not ensued,” has remained in the act throughout its legislative history. [Citations omitted.][ ]
Here, presumably, Haque’s decedent did not die instantaneously. Under the situation that existed at the time Love was decided, that was the only circum stance under which a suit under the wrongful death act, as it then existed, could have been instituted. Nor did Haque’s decedent institute suit while he was still alive. Under the current situation, such a situation was one of the two circumstances under which an action could be instituted under the survival act as it is now “amalgamated” with the wrongful death act. Rather, Haque, as her decedent’s personal representative, instituted suit after her decedent’s death. This situation is the other circumstance under which an action can be instituted under the survival act as it is now “amalgamated” with the wrongful death act. In simple terms, Haque has exercised her option under the survival act, MCL 600.2921; MSA 27A.2921, to bring an action under the wrongful death act, MCL 600.2922; MSA 27A.2922, for injuries that result in death. This is not materially different from the situation in Love where the plaintiff proceeded under the unamalgamated survival act.
(3) ADDITIONAL STATUTORY INTERPRETATIONS
Further, statutory interpretation of the probate court jurisdictional statute, MCL 700.21; MSA 27.5021, and the wrongful death act, MCL 600.2922; MSA 27A.2922, support this conclusion. First, a decedent’s cause of action under the wrongful death act accrues on the date of the wrongful act and an accrued right of action has long been considered a vested property right. Hawkins v Regional Medical Laboratories, PC, 415 Mich 420, 436; 329 NW2d 729 (1982) (the mere fact that the legislative scheme requires that suits for tortious conduct resulting in death be filtered through the wrongful death act does not change the character of such actions except to expand the elements of damage available and a plaintiff has a “fully vested cause of action,” if at all, at the time of the alleged wrongful act); Grubaugh v City of St Johns, 384 Mich 165, 170; 180 NW2d 778 (1970) (T. M. Kavanagh, J.) (“It is axiomatic that the constitutional provision of due process extends to protect that ‘property’ construed to be a vested right and that generally an accrued right of action is a vested property right which may not be arbitrarily impinged.”) In essence, a decedent’s cause of action under the wrongful death act—and we again note that the cause of action granted to the personal representative of a decedent’s estate by the wrongful death act is a derivative one— is a chose in action. See In re Thornton, 192 Mich App 709, 712-714; 481 NW2d 828 (1992) (while the proceeds of a medical malpractice, wrongful death suit did not exist at the time of the decedent’s death, the underlying “chose in action” did so that the proceeds could be distributed under the terms of the decedent’s will); Comm’r of Ins v Arcilio, 221 Mich App 54, 64; 561 NW2d 412 (1997) (a tort claim is a “chose in action” that is an asset).
Second, the wrongful death act specifically provides that wrongful death proceeds may include recovery for expenses for which a decedent’s estate is liable, including medical, hospital, funeral, and burial expenses. MCL 600.2922(6); MSA 27A.2922(6). Further, the estate is eligible to receive damages for a decedent’s conscious pain and suffering before death, thus increasing the value of the estate. MCL 600.2922(6); MSA 27A.2922(6).
(4) CONCLUSION
In summary, therefore, we conclude that Haque properly sought to invoke the probate court’s exclusive jurisdiction over the nonresident decedent’s estate, which consisted solely of a wrongful death cause of action that had accrued to Haque’s decedent in Oakland County. We hold that a wrongful death cause of action constitutes an estate sufficient to invoke the jurisdiction of the probate court in the county in which the cause of action accrued. Accord ingly, the probate court erred in denying jurisdiction to open and administer the estate.
IV. SUPERINTENDING CONTROL
Haque contends that the circuit court erred in denying her request for superintending control over the probate court. We disagree.
MCR 5.801(B) governs which probate court orders are appealable of right to this Court. In the present case, the pertinent provision is MCR 5.801(B)(3)(a), which provides that an order appointing or removing a personal representative, or denying such an appointment or removal, is appealable of right to this Court. The superintending control power of superior courts is governed by MCR 3.302. In particular, MCR 3.302(D)(2) prescribes and limits the jurisdiction to issue superintending control orders and provides that when an appeal is available, a complaint for superintending control is inappropriate. Therefore, the circuit court properly denied Haque’s request for superintending control.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
The petition checked the box delineated as “Independent” and later stated that Haque was seeking “independent administration.” There are three basic types of probate administration in Michigan: “supervised,” “independent,” and “small estate.” See MCL 700.10(5); MSA 27.5010(5), MCL 700.7(2); MSA 27.5007(2), and MCL 700.101; MSA 27.5101.
Ayesha Haque’s decedent was her husband, Sazzadul Haque.
The petition calls for an estimated dollar value of two types of property, “Real estate” and “Personal estate.”
We understand that Theisen was not a wrongful death case and that the plaintiff conceded that she was not alleging that the defendants’ conduct caused injuries that resulted in death. Rather, the plaintiff alleged that the defendants’ conduct caused economic injuries, caused pain and suffering, and failed to prolong the decedent’s life. Thus, the plaintiffs claim was a medical malpractice action brought in her own name as personal representative.
See Lincoln v Detroit & M R Co, 179 Mich 189, 198-199; 146 NW 405 (1914).
In n 3, the Maiuri Court cited Jorgensen v Grand Rapids & I R Co, 189 Mich 537, 541; 155 NW 535 (1915). There, the Supreme Court summarized the then-existing distinction between the survival act and the wrongful death act:
Under the law and practice of this State it has been held that the statute commonly called the “death act” (3 Comp Laws, § 10427; 5 How Stat [2d Ed] § 13702) is applicable only to cases of instantaneous death; that where death is not instantaneous the action should be brought under the so-called “survival act” (3 Comp Laws, § 10117, 5 How Stat [2d Ed] § 12761); and that both rights of action, for the same injury, cannot exist at the same time. And while the “death act” is recognized as creating a new right of action, unknown to the common law, and authorizing damages with reference strictly to the pecuniary injury, suffered by certain beneficiaries, the “survival act” is treated as effecting a continuance of the right of action that had vested in the decedent, with such damages as he could have recovered, including the present worth of his probable future earnings had he lived. [Citations omitted.]
We note that we are not implying, nor should the parties infer, any conclusion whatsoever with regard to whether Haque’s decedent suffered “injuries” at the hands of Beaumont, whether such injuries caused her decedent’s death, or whether these injuries were the result of the wrongful act, neglect, or fault of another.
Our conclusion in this regard is supported by the opinion in Hawkins v Regional Medical Laboratories, PC, 415 Mich 420; 329 NW2d 729 (1982). There the Court stated:
It is clear . . . that a distinction was drawn as to whether death from a wrongful act was instantaneous, in which case the action lay under the “wrongful death” statute, or whether there was a period of survival, thus requiring that the action be maintained under the “survival act.” This distinction was crucial since the claims were mutually exclusive and the measure of damages was substantially different.
The strict application of this temporal distinction not only spawned numerous suits over what “instantaneous death” meant, but also created pleading problems where the “time of death” issue was close.
Confusion in the application of these two statutes was ended when the Legislature, by the enactment of a new wrongful death act, 1939 PA 297, combined the two acts, requiring that all actions for injuries resulting in death be brought thereunder. 1939 PA 297 actually took the form of an amendment to the existing wrongful death act and provided for the repeal of any inconsistent provisions of the “survival act”. . . .
After some initial difficulty in construing this new statute, it was made unmistakably clear by this Court. .. that the survival act was not repealed but was incorporated into the new death act to form a single ground of recovery in cases where tortious conduct caused death. [Id. at 430-432 (citations omitted).] | [
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Per Curiam.
Plaintiff Travelers Insurance Company appeals by right the grant of summary disposition in favor of defendant Detroit Edison Company pursuant to MCR 2.116(C)(4) on the grounds that the Michigan Public Service Commission (MPSC) has primary jurisdiction over plaintiffs breach of contract action. We reverse and remand.
The facts are undisputed. In. January 1995, defendant Detroit Edison interrupted steam service to the Heaven On Earth Inn (the Inn) for over twenty-four hours after a city of Detroit water tunnel burst and flooded Detroit Edison’s steam tunnel. According to plaintiff, the shutdown caused the Inn’s water lines to freeze and burst, resulting in extensive damage to the Inn. Plaintiff, pursuant to a property damage insurance policy, paid $1.6 million in insurance benefits to repair the Inn. Afterward, plaintiff commenced this subrogation action to recover the insurance benefits it paid on behalf of the Inn.
Plaintiff filed its complaint on October 17, 1995, against defendants for negligence, nuisance, and trespass. Plaintiff also alleged a breach of contract claim against defendant Detroit Edison for violating General Rule No. 4 of MPSC Tariff No. 4. The rule states:
4. Character of Service
The Company will endeavor, but does not guarantee, to furnish continuous and adequate steam service .... Service is subject to interruption by agreement, by accident, or by necessity of maintenance or system operation or other causes not under the control of the Company.
The Company will not be hable for damages, either direct or consequential, caused by any interruption of service . . . due to strike, accident, . . . storm or flood, or other natural disasters or any cause whatsoever beyond its control except such as may result from failure of the Company to exercise reasonable care and skill in furnishing the service. . . .
Defendant Detroit Edison filed its answer to plaintiffs complaint on October 27, 1995. It did not assert lack of primary jurisdiction as an affirmative defense in its answer.
Defendants filed various motions for summary disposition pursuant to MCR 2.116(C)(8) and (10), and the trial court entered orders granting summary disposition in favor of defendants Detroit Edison, the City of Detroit Water and Sewer Department, Gordon, and Leavey regarding plaintiffs negligence, nuisance, and trespass claims. Plaintiff was permitted, however, to proceed against Detroit Edison (hereafter defendant) on plaintiffs breach of contract theory, in accordance with the court’s March 19, 1996, order.
On March 28, 1997, plaintiff filed its first amended complaint, upon stipulation of the parties and pursuant to the trial court’s order. As in count in of plaintiff’s original complaint, the first amended complaint alleged that defendant Detroit Edison breached its contract with plaintiff to provide steam service to the Inn, in violation of mpsc Tariff No. 4. This alleged breach caused the Inn’s pipes to freeze and burst, which resulted in extensive property damage. The original and amended pleadings are virtually identical. On April 4, 1997, defendant Detroit Edison filed its answer to plaintiff’s first amended complaint. In its affirmative defenses, defendant argued for the first time, without seeking leave to amend its original answer, that the trial court “lacks jurisdiction of this matter and that proper jurisdiction is with the [mpsc].”
On April 18, 1997, defendant filed its motion for summary disposition pursuant to MCR 2.116(C)(4), arguing that “primary jurisdiction for actions involving claims for breach of contract against public utilities is not in a court of general jurisdiction, but before the [MPSC].” Plaintiff opposed defendant’s motion on the bases that (1) this case does not require the expertise of the MPSC, (2) this case presents no threat to the uniform resolution of issues between the MPSC and the courts, (3) resolution of this case will not have an adverse effect on the mpsc’s regulatory responsibilities, (4) judicial proceedings have advanced to a point where it would be unfair to dismiss the action, and (5) defendant waived this defense by failing to raise it in a timely fashion.
The trial court granted defendant’s motion for summary disposition upon determining that the doctrine of primary jurisdiction applied and was not waived. Citing Dist of Columbia v Thompson, 570 A2d 277, 288 (DC App, 1990), the trial court concluded that while primary jurisdiction did not implicate a.court’s subject-matter jurisdiction in the strict sense, policy considerations dictated that it not be treated as a waivable defense. The court quoted and relied on the following passage from Thompson, supra at 287-288:
“We have never decided whether the requirement that claimants submit claims to an agency before filing suit—the defense of ‘primary jurisdiction’—can be waived if not raised before or during trial. A question of ‘primary jurisdiction’ arises when a claim may be cognizable in a court but initial resolution of issues within the special competence of an administrative agency is required. . . .
“ ‘Primary jurisdiction,’ like the doctrine of ‘exhaustion of administrative remedies,’ is concerned with ‘promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.’. . . We generally defer to agencies for initial resolution of issues the legislature has put in their special competence. . . . There are two reasons for this doctrine: uniformity of result and application of the specialized and expert knowledge of the agency. . . .
“Some courts have held that the primary jurisdiction defense cannot be waived. . . . These courts looked at the reasons behind the doctrine and concluded that the parties cannot waive it ‘since the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties.’ ”
The court also observed, relying on Rinaldo’s Constr Corp v Michigan Bell Telephone Co, 454 Mich 65, 70; 559 NW2d 647 (1997), that
Michigan courts recognize the concept of primary jurisdiction as, not so much as divesting a court of its subject matter jurisdiction in favor of the exclusive jurisdiction of an administrative agency, but a “concept of judicial deference and discretion,” and that it exists as “recognition of the need for orderly and sensible coordination of the work of agencies and of courts.”... In Rinaldo’s, supra 71, the court noted that primary jurisdiction “applies where a claim is originally cognizable in the court and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed with the special competence of an administrative body.”[ ] Apparently, however, MCR 2.116(C)(4) (lack of subject matter jurisdiction) is, at least tacitly, recognized as the appropriate procedural vehicle for raising the issue. Id. [ ]
The court concluded that the policy reasons supporting Michigan’s recognition of primary jurisdiction mirrored those in Thompson and, thus, supported finding that the defense of primary jurisdiction was not subject to waiver particularly where, as here, the case had not proceeded to trial. Applying the rationale in Thompson, the trial court found that defendant’s primary jurisdiction defense was not waived and dismissed plaintiff’s argument that it would be prejudiced by the late assertion of the defense in light of the extensive discovery completed in the civil case. It concluded that these discovery efforts would “only assist in a swifter resolution of the matter by the Commission.”
i
Plaintiff appeals on several grounds, the first being that defendant waived the affirmative defense of primary jurisdiction by failing to raise it in a timely matter. We agree, but for different reasons.
At the outset, we reject the trial court’s conclusion that primary jurisdiction is a defense like subject-matter jurisdiction that can be raised at any time. MCR 2.111(F)(3); MCR 2.116(D). Whatever similarities exist between these defenses, our Supreme Court has held that primary jurisdiction and subject-matter jurisdiction are not one and the same. As our Supreme Court observed in Rinaldo’s, supra at 70-74:
Primary jurisdiction “is a concept of judicial deference and discretion.” LeDuc, Michigan Administrative Law, § 10:43, p 70. ... In White Lake [Improvement Ass’n v City of Whitehall, 22 Mich App 262; 177 NW2d 473 (1970)], the Court of Appeals correctly noted that “]t]he doctrine of primary jurisdiction does not preclude civil litigation; it merely suspends court action.” Id. at 271. Thus, LeDuc notes, “[p]rimary jurisdiction is not a matter of whether there will be judicial involvement in resolving issues, but rather of when it will occur and where the process will start.” Id. at § 10:44, p 73. A court of general jurisdiction considers the doctrine of primary jurisdiction “whenever there is concurrent original subject matter jurisdiction regarding a disputed issue in both a court and an administrative agency.” Id. at 10:43, p 70.
The circuit court has not been ousted of its original jurisdiction under art 6, § 13 of the Michigan Constitution by the regulatory legislation. Under the telephone act of 1913, the mpsc possessed the “power and jurisdiction to hear and pass upon all matters pertaining to, necessary, or incident to the regulation of all public utilities, including . . . telephone . . . .” MCL 460.6(1); MSA 22.13(6)(1). In other words, the Legislature has broadly defined the power and jurisdiction of the mpsc over such matters, without explicitly providing that this power and jurisdiction is exclusive. [Emphasis added.]
Because the defense of primary jurisdiction says nothing about the power of the court to resolve a dispute before it, there would appear to be no policy that justifies equating primary jurisdiction with subject-matter jurisdiction for purposes of MCR 2.111(F)(3) and MCR 2.116(C)(4).
This point is more easily understood when viewed in the analogous context of arbitration agreements raised as affirmative defenses. In Campbell v St John Hosp, 434 Mich 608, 613-615; 455 NW2d 695 (1990), our Supreme Court recognized that despite the Malpractice Arbitration Act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., and the uniform arbitration act, MCL 600.5001 et seq.; MSA 27A.5001 et seq., the circuit court was not deprived of jurisdiction to decide medical malpractice claims where the complaining party signed a valid arbitration agreement. Where, however, a party fails to assert the affirmative defense of the existence of an arbitration agreement in its original responsive pleading, it is waived. Campbell, supra at 615-617.
We believe that the affirmative defense of primary jurisdiction, which does not deprive the trial court of subject-matter jurisdiction, is more closely akin to the affirmative defense of the existence of an arbitration agreement and should be treated similarly. We will not, therefore, equate the defenses of primary jurisdiction and subject-matter jurisdiction in resolving this appeal. Accord Campbell, supra.
With respect to properly and timely pleading defenses, MCR 2.111(F)(2) and (3) state as follows:
(2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of action has been asserted by complaint, cross-claim, counterclaim, or third-party claim must assert in a responsive pleading the defenses the party has against the claim. A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted. . . .
(3) Affirmative Defenses. Affirmative defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. [Emphasis added.]
The failure to raise an affirmative defense as required by MCR 2.111(F) constitutes a waiver of that affirmative defense. Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993). In Stanke, at 317-318, this Court quoted the Supreme Court in Campbell, supra at 616, as observing:
“MCR 2.111(F)(3)(c) requires the inclusion of ‘a ground of defense’ which ‘would be likely’ to surprise the adverse party. . . .
“[T]he broad language employed in MCR 2.111(F), coupled with case law recognizing the existence of affirmative defenses not specifically set forth in MCR 2.111(F)(3)(a) provides adequate warning to the practitioner that defenses which go beyond rebutting the plaintiff’s prima facie case, other than lack of subject matter jurisdiction and failure to state a claim, should be stated in the responsive pleading, lest they be deemed to have been waived.” [Emphasis deleted.]
In short, unless a defense is properly and timely stated, it is waived.
Here, the parties do not contest that primary jurisdiction is an affirmative defense. For the defense of primary jurisdiction to be properly and timely stated here, it must have been raised in either the responsive pleading, as originally filed, or by motion under MCR 2.118. Defendant did not assert the defense of primary jurisdiction in its original responsive pleading, i.e., its answer to plaintiffs October 1995 complaint, nor did defendant add the defense by grant of a motion under MCR 2.118. Instead, defendant raised the defense for the first time in its answer to a complaint amended in conformity with MCR 2.118. Under the circumstances presented here, defendant’s attempt to so add the defense was neither proper nor timely.
Absent new allegations in plaintiff’s amended complaint that would prompt the assertion of a new defense, defendant could not, merely by answering the amended complaint, include new defenses such as primary jurisdiction. Dodge v Blood, 305 Mich 443, 446; 9 NW2d 668 (1943). In Dodge, supra at 444-445, the defendant answered the plaintiff’s amended complaint filed in Wayne County and, for the first time, alleged that venue was appropriate in Oakland County, not Wayne County. The defendant then moved to dismiss the action at the outset of trial, and the trial court dismissed the action upon finding that the defendant did not waive the venue defense. Id.
Our Supreme Court vacated the trial court’s decree and remanded the case for further proceedings upon finding that the defendant attempted to improperly amend its answer, in accordance with the 1933 Michigan Court Rules, Rule 27, § 6, Rule 26, §§ 1 and 2, and Rule 23, § 8. Dodge, supra at 445. It found that “new defenses” can be created only by amendment of the original complaint, and “[hjaving failed to raise the question of venue in his first motion, defendant cannot raise this question later merely because of an amended bill containing new matter wherein the allegation as to venue is unchanged.” Id. at 446 (emphasis added). Our Supreme Court further held:
When the defendant moved to dismiss on the ground that the contract was unenforceable, he was advised by the bill of complaint, which he attacked, that plaintiff charged him with being a resident of the city of Detroit. At that time, he should have raised the question of venue, and since he did not, that objection must be deemed to have been waived. Any other holding would permit a continued and piecemeal attack upon the pleadings, and an undue delay of a trial on the merits. [Id. (emphasis added).]
See also Oy Tilgmann, AB v Sport Publishing Int’l, Inc, 110 FRD 68, 70 (ED Penn, 1986) (the defendants were required to seek leave under Fed R Civ P 15[a] to file an answer to an amended complaint that contained new affirmative defenses and counterclaims because none of these changes were necessitated by the new language in the amended complaint; thus, the answer was an amended pleading filed in violation of Fed R Civ P 15[a]); Gilmore v Shearson/American Express, Inc, 811 F2d 108, 112-113 (CA 2, 1987) (the filing of an amended complaint does not revive the defendant’s ability to raise, for the first time, the existence of an arbitration agreement as a defense; that defense was waived because it was not raised in response to the original complaint).
In the case at bar, we find that the allegations affecting primary jurisdiction remained unchanged from plaintiff’s original and amended complaints. Plaintiff’s amended complaint mirrored the allegations in its original complaint regarding defendant, save for deleting the allegation that defendant was forced to shut down its steam tunnels. Plaintiff made no new allegations in its amended complaint that would permit defendant to expand its affirmative defenses in its answer to the amended complaint. Moreover, nothing occurred in the seventeen months between the filing of plaintiff’s original complaint and its amended complaint that would have brought this doctrine to light for the first time. Therefore, defendant’s primary jurisdiction defense must be deemed waived under MCR 2.111(F) because it was not raised in defendant’s original pleading or by amendment under MCR 2.118(A). We will not “permit a continued and piecemeal attack upon the pleadings . . . .” Dodge, supra at 446.
Although determining that defendant waived the defense may seem harsh, we believe that the language of MCR 2.111(F) mandates this conclusion. Stated otherwise, if a defendant were permitted to raise affirmative defenses at any time, it would destroy the notions of judicial economy that underlie the requirements of MCR 2.111(F). Requiring by court rule that defenses “must” be stated, but then holding that defendant could supplement its defenses at any time in response to an amended complaint would render illusory the mandatory language of the court rule. Accord Dodge, supra.
Defendant will likely argue that even if the primary jurisdiction defense were not properly raised, we should permit defendant the opportunity to seek leave to amend in accordance with MCR 2.118(A) upon remand to the trial court. Given our analysis of the waiver issue, we are unpersuaded that defendant is entitled to leave to amend its original answer at this juncture, and we believe the same result is dictated by MCR 2.118.
In Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656-667; 213 NW2d 134 (1973), our Supreme Court established rules for determining whether leave to amend should be given and whether prejudice to the nonmoving party exists. In doing so, it discussed this Court’s decision in Wilson v Eubanks, 36 Mich App 287, 293; 193 NW2d 353 (1971):
In Wilson v Eubanks, supra, the judge allowed the amendment two years after the action was commenced. Had the defendant initially raised the defense [i.e., a foreign statute of limitations defense] the plaintiffs would have been spared the two-year cost of prosecuting their action. During this period, the plaintiffs had participated in pretrial discovery, none of which was related to the statute of limitations defense. The costs incurred by the plaintiffs during the two-year delay in the assertion of the defense was a factor in the Court of Appeals’ refusal to permit the amendment. [Fyke, supra at 661.]
Here, the parties engaged in discovery for seventeen months before defendant raised the primary jurisdiction defense. Delay and unnecessary expense may increase the risk of substantial prejudice to the party opposing the amendment. Id. at 663-664. Arguably, the thirty or more depositions that the parties took in this case before defendant raised this affirmative defense could be useful if defendant were permitted to amend its answer and this matter proceeded to the MPSC. Defendant, however, must first overcome plaintiff’s assertion of prejudice before being permitted to amend its pleadings, which may be difficult in light of Fyke, supra, and Wilson, supra.
Applying the law and the court rules to the case before us, we believe that defendant effectively waived its right to assert its primary jurisdiction defense by failing to raise it until seventeen months after plaintiff filed its original complaint and by failing to properly amend its answer to add this affirmative defense. Under MCR 2.111(F)(2), this affirmative defense is therefore waived. Hence, summary disposition in favor of defendant was improper, and plaintiff is entitled to proceed against defendant upon remand to the trial court.
n
In light of our ruling with regard to issue I, we find plaintiff’s other issues raised on appeal to be moot.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Defendant Stephen E Gordon was sued in his capacity as director of defendant City of Detroit Water and Sewer Department, and defendant Kathleen Leavey was sued as the deputy director of the department.
Plaintiff filed its motion to file an amended complaint in November 1996, but for various reasons, plaintiff did not receive leave from the court to amend until March 1997.
The amended complaint consolidated and restated the original complaint’s factual allegations and assertions in count m against Detroit Edison except for the allegation that defendant was forced to shut off the steam to the Inn (which was deleted in the amended complaint).
According to plaintiff, by the time defendant asserted its primary jurisdiction affirmative defense, over thirty depositions had been taken, the case had been mediated and facilitated, and substantial discoveiy had been completed.
This language is originally found in United States v Western P R Co, 352 US 59; 77 S Ct 161; 1 L Ed 2d 126 (1956), which the Rinaldo’s Court observed our Supreme Court applied in Attorney General v Diamond Mortgage Co, 414 Mich 603, 613; 327 NW2d 805 (1982). See Rinaldo’s, supra at 70-71.
In Rinaldo’s, supra at 89, our Supreme Court affirmed the grant of summary disposition in favor of the defendant, stating:
[Plaintiff's cause of action was properly dismissed in favor of the primary jurisdiction of the mpsc where the only duty allegedly breached was the contractual duty the defendant had to the plaintiff under the terms of the customer service relationship. The plaintiff did not allege any violation of the regulatory code or tariffs, nor did it allege acts sufficient to constitute tortious conduct. The presumptively valid and comprehensive regulatory scheme anticipated this type of liability and accounted for it adequately as a matter pertaining to the regulation of the public utility.
The Supreme Court did not directly address whether MCR 2.116(C)(4) was the appropriate vehicle for asserting the primary jurisdiction defense. Nevertheless, the Supreme Court’s silence provided the trial court in the instant case with the “tacit approval” it relied on in granting defendant’s motion under MCR 2.116(C)(4).
The trial court admitted, albeit erroneously, that it viewed defendant’s motion for summary disposition as being properly raised under MCR 2.116(C)(4), which states “[t]he court lacks jurisdiction of the subject matter.” We find no authority for the proposition that a motion to dismiss on the basis of primary jurisdiction must or should be brought or considered under MCR 2.116(C)(4), and the parties cite none to us. Moreover, even though the Supreme Court in Rinaldo’s affirmed summary disposition in favor of the defendant under MCR 2.116(C)(4), it is difficult to reconcile this result and the Court’s discussion of the distinctions between primary and subject-matter jurisdiction.
The Supreme Court observed that “an arbitration agreement is properly regarded as an affirmative defense” because it is not a negative defense that goes to the merits of the plaintiffs claim. Campbell, supra at 616.
“An affirmative defense is a defense that does not controvert the plaintiffs establishing a prima facie case, but that otherwise denies relief to the plaintiff. Campbell, supra. In other words, it is a matter that accepts the plaintiffs allegation as true and even admits the establishment of the plaintiffs prima facie case, but that denies that the plaintiff is entitled to recover on the claim for some reason not disclosed in the plaintiff’s pleadings.” Stanke, supra at 312.
Under MCR 2.118(A)(1) and (2):
(1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading if it does not require a responsive pleading.
(2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.
Rule 27, § 6, provided the deadline for “[a] motion attacking a pleading” and stated that “ail objections to pleadings or proceedings not stated in the motion shall be deemed waived.” Rule 26, §§ 1 and 2, stated the time deadlines for amending an answer and that “new counts or new defenses . . . may be added to a declaration or answer.” Finally, Rule 23, § 8, provided in part that “all defenses which might formerly be raised by [pleas in equitable actions that are abolished] by statute or hereby, may be interposed without waiver by answer. An issue so raised may be brought on for hearing on notice of either party by motion in advance’ of the trial.”
Fed R Civ P 15 is the federal model for MCR 2.118. In Ben P Pyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973), our Supreme Court “acknowledged the Federal source of Rule 118 and [that it has] been guided by the Federal precedents.” | [
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] |
T. M. Burns, J.
The defendant was tried by a jury for committing acts of gross indecency contrary to MCLA § 750.338b (Stat Ann 1954 Rev § 28-.570 [2]). The jury found him guilty of attempted gross indecency; and on September 30, 1969, defendant was sentenced to a term of one year imprisonment in the Detroit House of Correction.
The defendant contends that a mistrial should have been granted when on cross-examination the complaining witness gave hearsay testimony with regard to acts and conduct committed by the defendant upon the person of complainant’s sister who was also the defendant’s wife.
When asked why she hadn’t immediately contacted the police, the complainant stated:
“A. I didn’t contact them until after I found out what he had been doing to my sister for three years —the same thing he did to me.”
Defendant then moved for a mistrial because the statement was highly prejudicial. The motion was, however, denied.
Although the trial court did instruct the jury to disregard the statement, we agree with the defendant that it was highly prejudicial and that a mistrial should have been granted.
The testimony inadvertently elicited by defense counsel was, of course, hearsay. It was also testimony which defendant’s wife, had she been called as a witness, could not have testified to since a wife may not, under these circumstances, testify against her husband in Michigan.
We cannot say, in this instance, that the instruction by the trial court removed from the jury the impression made upon them by such an inflammatory statement. Accordingly, we cannot say that the trial court’s refusal to grant a mistrial did not result in a miscarriage of justice; and we must, therefore, remand for a new trial.
Reversed and remanded.
V. J. Brennan, concurred. | [
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Holbrook, J.
Defendant was convicted in a non-jury trial in the Kent County Circuit Court of the crime of unlawfully possessing a narcotic drug without a license, contrary to MCLA § 335.153 (Stat Ann 1957 Rev §18.1123).
The pertinent facts appearing in the record are as follows:
Warrants had been issued for the arrest of Fred Johnson, his wife, Jennifer Johnson, and John Doe, also known as Carlos, for the unlawful sale of heroin. MCLA § 335.152 (Stat Ann 1957 Rev §18.1122). Pursuant to the warrants, several officers of the state police proceeded to the Johnson home at 34 Hall Street S. W. in the City of Grand Rapids to arrest the Johnsons.
The officers arrived at the Johnson home at approximately 7 p.m. on April 14, 1969, but found no one home. Expecting the return of the Johnsons at any minute, these officers entered the house to await their arrival. The Johnsons did not return, but at 7:10 p.m. the front doorbell rang. Detective George Kerr opened the door and saw defendant Carlos Romano and an unidentified white female standing on the other side. Defendant asked for Fred and upon being asked by the detective who he was, defendant identified himself as Carlos Romano.
Detective Kerr admitted defendant and followed him as he walked through the living and dining rooms into the kitchen calling aloud for Fred all the while. Defendant stopped in the middle of the kitchen and, still calling for Fred, started going through his pants and coat pockets. He then turned around to face Detective Kerr, took a small manila envelope out of his right hand, placed it into his left hand and walked over to the kitchen door near where the detective was standing. As he walked through the door, defendant dropped this envelope into a wastebasket and then proceeded into the living room where he took a seat.
The manila envelope was retrieved from the wastebasket by Detective Kerr and found to contain 13 individually wrapped tinfoil packets of what he believed to be heroin. Detective Kerr then placed defendant under arrest, both on the outstanding warrant for sale of narcotics and on the detective’s. probable cause to believe that defendant had been in possession of narcotics in his presence. Defendant was lodged in the Kent County jail and subsequently arraigned on the original warrant charging him with sale of heroin as well as a new warrant charging him with unlawful possession of heroin in violation of MCLA § 335.153 (Stat Ann 1957 Bev § 18.1123).
Examination of the manila envelope containing the 13 tinfoil packets by the latent prints section of the Michigan State Police laboratory produced a positive identification of defendant’s fingerprints thereon. Analysis of the substance contained in each of the 13 tinfoil packets revealed this substance to be cocaine.
Preliminary examination for defendant on the possession charge was commenced April 30 and completed May 23, 1969. The complaint and warrant were amended at that time to charge possession of cocaine instead of possession of heroin, and at the conclusion of the proofs defendant was ordered bound over to the Circuit Court for the County of Kent on this charge.
On appeal, defendant questions the legality of the arrest, search, and seizure, and the admissibility of the narcotics into evidence. He also asserts reversible error because of the failure to produce “Carol” as a res gestae witness, and holding a preliminary examination more than ten days after the arrest and arraignment. Defendant also maintains that the verdict of the court was not supported by sufficient evidence to convict beyond a reasonable doubt.
Arrest
Defendant contends that “John Doe, also known as Carlos” fails to satisfy the requirements of independent description and identification.
The defendant testified in part as follows:
“We rang the doorbell * * * . We got in the house. He asked me what my name was, and I told him Carlos.
“Q. Who asked you this?
“A. Detective Kerr.
* * #
“Q. What was your conversation?
“A. Well, he just asked me what my name was, and I said Carlos, and in the process of this, I was calling Fred. * * * I asked where Fred was. Detective Kerr said ‘He is not here now, he will be back in a few minutes.’ ”
A police informer by the name of Leonard Fowler had supplied information concerning the unlawful activities of the defendant. In fact, the warrant was based upon a sale of heroin to the said Leonard Fowler.
There is no need to decide the sufficiency of the description since the defendant was not arrested immediately upon entering the house and was not arrested until after the detective observed him drop the manila envelope in the wastebasket. Detective Kerr and the other officers were lawfully on the premises pursuant to the arrest warrant which had been issued for the arrest of Fred Johnson, the scene of the arrest being the Johnson home.
Although an arrest pursuant to the warrant may have been justified under the facts in this case, the finding of the manila envelope in the wastebasket where the officer observed defendant place it and its inspection leading to a reasonable conclusion that it contained narcotics was sufficient for an arrest based upon knowledge and belief that the offense of possession had been committed in the presence of the officer. The claim at trial of defendant that what he had dropped in the wastebasket was a wet cigarette butt merely raised an issue of fact for determination.
Where an officer has probable cause to believe a felony has been committed and reasonable cause to believe that defendant committed that felony, the arrest is lawful. People v. Williams #2 (1970), 23 Mich App 711; People v. Pantoja (1970), 28 Mich App 681.
Search and Seizure and Admissibility of Evidence
Because of the arrest warrant, the officer was properly on the premises to apprehend Fred Johnson. When defendant Carlos became identified and was observed dropping or tossing a manila envelope into the wastebasket, which upon inspection led to a reasonable conclusion that it contained narcotics, the detective had the right to seize the envelope.
It is well established that a police officer in a legally obtained position may seize objects falling in plain view. Harris v. United States (1968), 390 US 234 (88 S Ct 992, 19 L Ed 2d 1067); People v. Cook (1970), 24 Mich App 401; People v. Surles (1970), 29 Mich App 132.
Delay in Holding Preliminary Examination
Defendant asserts that an unreasonable delay occurred after arrest in the holding of the preliminary examination, MCLA § 766.4 (Stat Ann 1954 Rev § 28.922), and prejudice resulted because the witness “Carol” could have been produced during this time. Pertinent testimony of the defendant as to the fact that “Carol” could not possibly assist in this defense is as follows:
“Q. And where was Carol at that point, if you recall?
“A. Well, when I started back to the dining room or approaching Detective Kerr, Carol was not inside.
“Q. You couldn’t see her?
“A. No.
“Q. Then would it be fair to say, if you dropped the cigarette butt in the waste basket, she wouldn’t see you to do that, either?
“A. It would be fair to say that.
“Q. And basically, she would have no knowledge what you dropped in the waste basket at that point, would she?
“A. She would not.”
The defendant was arrested on April 14, 1969. He was arraigned on the warrant on April 15 and the examination was set for April 24. It appears that on that day substitute counsel was appointed for him and that the examination on this or some other charges involving Fred Johnson and the defendant, or both of them, began on April 30 and did not conclude until May 23, 1969. Adjournment under such circumstances is reasonable and does not violate the statute. People v. Davis (1968), 11 Mich App 461.
Failure to Produce Carol
There is no question but that res gestae witnesses must be called. It is error not to do so; it is harmless error where their testimony has no probative value. People v. Campbell (1971), 30 Mich App 43. According to defendant’s own testimony, the witness Carol could not identify the object that defendant claimed he dropped into the basket, the reason being that she was not in a position to see the defendant drop the envelope in the wastebasket. The trial court recognized this fact and saw “no essential unfairness # * * as far as the defendant and his rights are concerned”. Our review of the record supports the trial court’s conclusion.
The trial court was also satisfied after hearing the testimony of the police officers that reasonable efforts were used to locate this “elusive endorsed witness, Carol”. As a further precaution, the court required the officers, during a noon break in the trial, to locate Carol. They made two separate calls at a known address without success.
A showing of due diligence in attempting to produce a witness endorsed on the information will excuse the prosecutor from production of a witness at trial. People v. Lewis (1970), 25 Mich App 132. The question of whether or not diligence has been exercised is a matter to be determined by the trial court subject to reversal on appeal only for clear error. People v. Tiner (1969), 17 Mich App 18; People v. Russell (1970), 27 Mich App 654, 665; People v. Alexander (1970), 26 Mich App 321. The record in the instant case fails to disclose reversible error by the trial judge. People v. Kern (1967), 6 Mich App 406; People v. Melvin Jackson (1970), 21 Mich App 129.
Sufficiency of Evidence
After careful review of the evidence in the record, we are convinced that there is sufficient evidence present if believed by the trier of the facts to support the verdict of guilty beyond a reasonable doubt. People v. Bennett (1966), 3 Mich App 326.
Affirmed.
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T. M. Burns, J.
Plaintiffs are owners of property on Stony Lake in Oceana County. They filed suit in circuit court for a declaration of rights and to enjoin defendants, also owners of land abutting Stony Lake, from granting right-of-way easements for lake access to nonriparian owners. The trial court, sitting without a jury, rendered an opinion June 10,1967, granting judgment to the defendants. That decision was appealed to this Court, and we remanded the case to the trial court for reconsideration in light of Thompson v. Enz (1967), 379 Mich 667. See Pierce v. Riley (1969), 16 Mich App 419. On remand, the trial court again found for the defendants, and from that decision, plaintiffs appeal.
Stony Lake has an area of about 278 acres. There are presently about 138 cottages fronting on the lake and enough vacant property to accommodate about 15 more. Defendants, who have about 373 feet of frontage, propose to dig a canal through their one lot fronting on the lake and thus provide access to the lake for 90 lots immediately behind the only lot, lot No. 91, having natural frontage on the lake.
The number of families having access to the lake will thus increase from 138 to 229 or about a 66% increase. The number of families per surface acre of the lake will increase from aboiit 0.5 to 0.89. Although there was no evidence which would conclusively establish that the level of pollution would increase to any great extent or that the canal would substantially reduce the level of the lake, it is apparent that the use of the lake would increase quite dramatically.
All of the lots behind lot No. 91 would be non-riparian but would have access to the lake through the canal which would be an easement granted to the ninety nonriparian lots. Therefore, although the lot owners would have no riparian rights, they would have freedom of access to the lake via the easement granted to them by defendant, the riparian owner of lot No. 91.
In Thompson v. Enz, supra, the Supreme Court was faced with a situation similar to the one presently before this Court. In that case defendant proposed to develop 144 to 153 nonriparian lots. Approximately 16 of the lots would have natural frontage while the remainder would have access to the lake by a canal which would border on all of the back lots. The canal would constitute an easement giving the back lots a right of access to the lake.
The Supreme Court first determined that such a use would constitute an artificial use and therefore is limited by the “reasonable-use rule”:
“Riparian uses are divided generally into two classes. The first of these is for natural purposes. These uses encompass all those absolutely necessary for the existence of the riparian proprietor and his family, such as to quench thirst and for household purposes. Without these uses both man and beast would perish. Users for natural purposes enjoy a preferred nonproratable position with respect to all other users rather than a correlative one.
“The second of these is a use for artificial purposes. Artificial uses are those which merely increase one’s comfort and prosperity and do not rank as essential to his existence, such as commercial profit and recreation. Users for artificial purposes occupy a correlative status with the other riparians in exercise of their riparian rights for artificial purposes. Use for an artificial purpose must be (a) only for the benefit of the riparian land and (b) reasonable in light of the correlative rights of the other proprietors. Evans v. Merriweather, 4 Ill (3 Scam) 492 (38 Am Dec 106). It is clear in the case before us that the use made of the property by the defendants is for a strictly artificial purpose and must meet the test for reasonableness.”
The Court then remanded the case to the trial court to determine whether the use proposed by defendants was reasonable. The opinion then instructed the trial court to keep the following factors in mind in determining whether the use would be reasonable:
“First, attention should be given to the water course and its attributes, including its size, character and natural state. In determining the reasonableness of the use in the case at bar, it should be considered that Gun lake is not a large lake, thqt it is used primarily for recreational purposes, and that the defendants are changing its natural state by expanding the lake frontage of their property from an actual 1,415 feet to a total, inclusive of the canals, of 12,415 feet, being an increase in frontage of approximately 800 per cent.
“Second, the trial court should examine the use itself as to its type, extent, necessity, effect on the quantity, quality, and level of the water, and the purposes of the users. Factors in this particular case that should be considered include: (a) that this use would permanently add approximately one family without riparian rights to each 18 acres of surface area (or 137 families); (b) the possibility that the level of the lake may be reduced by withdrawing trust waters into over 2 miles of the proposed canals, as is alleged by the attorney general in his motion to intervene; (c) the possibility that pollution may result; (d) that there is nothing in the record showing any necessity for this use; and (e) the fact that it appears that the purpose of the defendants herein is merely commercial exploitation.
“Third, it is necessary to examine the proposed artificial use in relation to the consequential effects, including the benefits obtained and the detriment suffered, on the correlative rights and interests of other riparian proprietors and also on the interests of the State, including fishing, navigation, and conservation. An additional fact to be considered by the trial court in this litigation is whether the benefit to the defendant subdividers would amount merely to a rich financial harvest, while the remaining proprietors — who now possess a tranquil retreat from everyday living — would be forced to endure tbe annoyances which would come from an enormous increase in lake users.”
Applying the above criteria to the instant case, the trial court found the use to be reasonable. The court relied heavily on the fact that since there are public parks and private landings which may be used by the general public to gain access to the lake, that it would be strange reasoning to bar people from access to the lake by the canal dug through lot No. 91. The trial court also pointed out that since defendants could maintain a landing open to the public on lot No. 91, there is no good reason to prevent the defendants from providing access to 90 lot owners via the canal.
We disagree. The fact that a landing by which the general public could gain access to the lake could be maintained on lot No. 91 is irrelevant, as is the fact that there are presently landings and parks which the public may so use. If a landing were presently built on lot No. 91, the use of Stony Lake for recreational purposes would not be significantly increased because the general public may, through the use of present facilities, gain access to the lake at any time. However, the construction of 90 residences with ready access to the lake at all times, will not significantly decrease the number of persons using the lake as members of the general public, but it will increase drastically the use of the lake by local residents, the people who put the heaviest burden on a lake this small in area.
It is the opinion of this court that the increased burden on the lake caused by the proposed real estate development is not a reasonable riparian use by the owners of lot No. 91. Applying the criteria in Thompson v. Enz, supra, to determine the reasonableness of the use, we hold that an increase in the number of residences having access to the lake by 66%, when the number of residences which have frontage could never number more than about 153, is sufficiently injurious to the riparian owners as to constitute an unreasonable use.
Stony Lake is an extremely small lake. The proposed real estate development would overcrowd the lake for what appears to this court to be a commercial exploitation only. We see no reason to deprive the present riparian owners of the enjoyment of the lake when the only reason for increasing the burden on the lake is merely the commercial profit of the owner of one riparian lot. The benefit to the one riparian owner is not sufficient to justify the injury to the other riparian owners.
Judgment reversed, costs to plaintiffs.
All concurred.
The ease was before the Supreme Court on the question of whether plaintiffs’ motion for summary judgment had been properly granted.. There had, therefore, been no findings as to whether the proposed subdivision constituted a reasonable use. | [
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Per Curiam.
Defendant, while represented by counsel, pled guilty to the charge of larceny in a building, contrary to MCLA § 750.360 (Stat Ann 1954 Rev § 28.592). Defendant was sentenced to a term of three to four years imprisonment. A timely claim of appeal was filed in this Court grounded on one allegation of error. Defendant contends that his plea of guilty was improperly accepted because there was reason to doubt the truth of the plea of guilty. The people have filed a motion to affirm the conviction and sentence.
An examination of the transcript of defendant’s plea of guilty clearly demonstrates full compliance with GCR 1963, 785.3(2). The trial judge clearly ascertained that there was a factual basis for the defendant’s plea of guilty and that it was truthfully made. People v. Barrows (1959), 358 Mich 267; People v. Bartlett (1969), 17 Mich App 205.
It is manifest that the question presented herein is unsubstantial and, therefore, requires no argument or formal submission.
The motion to affirm the conviction and sentence is granted. | [
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Lesinski, C. J.
Plaintiffs, tenants of a housing project in the city of River Rouge, sought a writ of mandamus below to compel defendant as mayor of that city to establish a board of tenant affairs pursuant to section 49 of the municipal housing facilities act, MCLA § 125.651, et seq. (Stat Ann 1969 Rev § 5.3011, et seq.). Section 49 of the act, MCLA 1971 Cum Supp § 125.699 (Stat Ann 1969 Rev § 5.3056 [3]), is a recent amendment (to the act) which, together with other recently added sections, creates boards of tenant affairs for cities with housing commissions and housing projects with the cooperation of the chief executives of the municipalities. From the trial court’s granting of the writ, defendant appeals as of right.
The title to the act, as amended by PA 1968, No 344, § 1, reads:
“An act to authorize any city, village or township to purchase, acquire, construct, maintain, operate, improve, extend and repair housing facilities; to eliminate housing conditions which are detrimental to the public peace, health, safety, morals or welfare; and for any such purposes to authorize any such city, village or township to create by a commission with power to effectuate said purposes, and to prescribe the powers and duties of such commission and of such city, village or township; and for any such purposes to authorize any such city, village or township to issue notes and revenue bonds; to require the issuance, sale, retirement and refunding of such notes and bonds; to regulate the rentals of such projects and the use of the revenues of the projects; to prescribe the manner of selecting tenants for such projects; to provide for condemnation of private property for such projects; to confer certain powers upon such cities, villages and townships in relation to such projects, including the power to receive aid and cooperation of the federal government; to provide for a referendum thereon; to create a board of tenant affairs in any city of 1,000,000 or over having a housing commission and operating 1 or more housing projects; to define the powers and duties of such board; to provide for the right of appeal from its determinations; and for other purposes.” (Emphasis supplied.)
Section 49 of the act, also added by PA 1968, No 344, provides:
“There is created a board of tenant affairs for each city, village or township having a housing commission and operating 1 or more housing projects as provided by this act.”
On appeal, defendant challenges the constitutional validity of § 49 in that the body of the act mandates the creation of a board of tenant affairs for housing project cities, villages, and townships without limitation as to population whereas the title of the act, as amended, indicates that such boards are to exist only for cities with populations of 1,000,000 or more. Const 1963, art 4, § 24 establishes:
“No law shall embrace more than one object which shall be expressed in its title.”
It is axiomatic that the body of an act must be reasonably harmonious with its title. McKellar v. Detroit (1885), 57 Mich 158. The purpose of the constitutional requirement is to make certain that the title of a legislative act must give notice to legislators, and others interested, of the object of the law, thereby assuring* them that only matters germane to the object expressed in the title will be enacted into law. Continental Motors Corporation v. Township of Muskegon (1965), 376 Mich 170, 179. See, also, Leininger v. Secretary of State (1947), 316 Mich 644; Regents of University of Michigan v. Pray (1933), 264 Mich 693; People v. Carroll (1936), 274 Mich 451; People v. Wohlford (1924), 226 Mich 166. The title of the act must be sufficiently broad to permit the enactment of the provisions found in the body of the legislation. People v. Wohlford, supra, p 168. The constitutional test to be applied is in Vernor v. Secretary of State (1914), 179 Mich 157, 160:
“What is the constitutional test? We think it is that a title must embrace the object of the act, and the body of the act must not be inconsistent with the title. The pertinent questions should be: Does the title of the act fairly indicate the purpose of the legislation? Is the title a fair index of the act? Does the title of the act fairly inform the legislators and the public of its purposes, as a whole?”
Undeniably, the title of the act, as amended, requiring the creation of boards in housing project cities of 1,000,000 or more, is more restrictive in scope than the body of the act which establishes a board for each city, village and township with a housing project. When the title of an act relates to designated municipal corporations and the body of the statute affects municipal corporations not specified by the title, the legislation may not be constitutionally applied to the local governments not indicated by the title. Wilcox v. Paddock (1887), 65 Mich 23; Hume v. Village of Fruitport (1928), 242 Mich 698.
We hold that where, as here, the body of the act is broader in scope than the limitations of the title of the act, the title shall prevail over the conflicting portion of the body of the act. See Arnold v. Ogle Construction Company (1952), 333 Mich. 652. As such we hold that defendant may not be required by virtue of § 49 to establish a board of tenant affairs.
A word is now due on plaintiffs’ contention that the above holding deprives plaintiffs of equal protection of law. US Const, Am 14; Mich Const 1963, art 1, § 2. The statute gives boards of tenant affairs broad powers to veto housing commission rules and to review denials of admissions to public housing, evictions, and rental increases. MCLA 1971 Cum Supp § 125.702 (Stat Ann 1969 Rev § 5.3056[6]). Plaintiffs maintain that a construction of the act limiting § 49 of the act to cities with public housing commissions and public housing projects having populations of 1,000,000 or more unconstitutionally deprives them of the right to elect a board which could check arbitrary housing commission action.
Legislative classification by population will be upheld where there is a reasonable relationship between the restriction and population. Hayes v. Auditor General (1915), 184 Mich 39; Kates v. Reading (1931), 254 Mich 158; Chamski v. Wayne County Board of Auditors (1939), 288 Mich 238; Sullivan v. Graham (1953), 336 Mich 65. It has been held that the fact that legislation contains a population classification which limits the present application of the act to municipalities over 1,000,000 does not necessarily make the act local or special. Airport Community Schools v. State Board of Education (1969), 17 Mich App 574. Equal protection of the laws does not prevent a reasonable classification by legislative enactment and the ultimate decision as to the wisdom of such laws rests with the Legislature. Tribbett v. Village of Marcellus (1940), 294 Mich 607, 614.
We are unable to say that restriction of the act as expressed in the' title of the legislation is arbitrary. The Legislature could reasonably determine that tenants of public housing projects in large cities face considerably different problems than do tenants in smaller cities, such as to warrant classification. For example, tenants in large city public housing projects must compete with a greater number of tenants for individual attention. Tenants of such projects — because they live in the midst of huge urban areas — must cope with not only living in public housing but also living in large cities. Many such distinguishing features exist.
Nor do we think that Wayne Circuit Judges v. Wayne County (1969), 383 Mich 10, requires a different result. There, legislation established a statewide compensation distribution program for county probation departments, but excepted existing departments in counties with populations of over 500,000. This exception was struck down by the Court as local legislation, principally because the distinction drawn was unreasonable. The Court noted that the function of probation officers is to rehabilitate criminals and since there is a greater need for such work in heavily populated areas, the legislative classification defied logic. Further, the act excepted departments “heretofore established” in counties of 500,000 which narrowed the exception, in effect, to Wayne County.
In the case before us, we see an act limited to large cities and we are of the opinion that many valid reasons may be advanced to justify that limitation. We do not read Wayne Circuit Judges as precedent for elevating the rights of small city public housing project tenants on an equal protection basis.
Reversed. No costs, a public question being involved.
O’Hara, J., concurred.
MCLA 1971 Cum Supp § 125.700 (Stat Ann § 5.3056[4]); MCLA 1971 Cum Supp § 125.701 (Stat Ann 1969 Rev § 5.3056[5]).
The city of Biver Bouge has a population of approximately 20,000.
The Legislature itself has apparently recognized the defect in the title. HB 3721, introduced April 15, 1969, attempted to cure the imperfection by making title and body consistent by broadening the title. The bill was defeated.
See, also, Midi Const 1963, art 4, § 29, as to the constitutional prohibition against special and local acts where a general act can be made applicable. Analyses of special and local legislation and legislation which is violative of the equal protection clause are substantially similar. See Walters v. Binder (Ky, 1968), 435 SW2d 464, 466. | [
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Per Cdriam.
The defendant was convicted after a jury trial of rape. MCLA § 750.520 (Stat Ann 1954 Rev § 28.788). His motion for a new trial based on insufficiency of the evidence was denied. He has appealed as of right.
The complaining witness was positive in her identification of the defendant. Her detailed testimony, if believed by the jury, was clearly sufficient evidence to prove the defendant’s guilt beyond a reasonable doubt. The trial judge did not abuse his discretion in denying the defendant’s motion for a new trial.
The motion to affirm is granted. | [
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Memorandum Opinion. Defendants were convicted by a jury of the crime of breaking and entering with intent to commit larceny, and appeal. The people have filed a motion to affirm, pursuant to GCR 1963, 817.5(3).
A review of the briefs and records in this cause make it manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Accordingly, the motion to affirm is granted.
MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305). | [
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Quinn, J.
Convicted by a jury of first-degree murder, MCLA § 750.316 (Stat Ann 1954 Rev § 28.-548), defendant was sentenced and he appeals. The crucial issue at trial was the identity of the murderer. Defendant’s defense was alibi.
On the basis of discrepancies in the testimony of prosecution witnesses, defendant argues that the prosecution failed to negate every reasonable theory consistent with his innocence. The only theory consistent with defendant’s innocence that had to be negated was that defendant was not the murderer. In the process of determining what testimony they believe, the weight they accord it, and if the burden of proof has been met, the jury necessarily resolves discrepancies in the testimony. This Court does not sit as a reviewing jury, People v. Arither Thomas (1967), 7 Mich App 103. Our function is to determine whether the record contains sufficient evidence which, if believed by the jury, establishes beyond a reasonable doubt the identity of defendant as the murderer. This record so identifies defendant.
Two witnesses for the prosecution were children, one eight and one nine years of age. Defendant claims reversible error on the basis of what he terms inadequate examination of these children by the trial judge as to their intelligence, ability to perceive and relate their perceptions. Defendant did not object to this examination nor did he request further examination, but in any event, the examination made satisfies the requirements of MCLA § 600.2163 (Stat Ann 1962 Rev § 27A.2163).
Defendant asserts reversible error because the trial judge did not give a cautionary instruction on the testimony of child witnesses. Ño such instruction was requested nor was there objection to the instructions given. Unless justice requires it, this question is not reviewable. GCR 1963, 516.2; People v. Keiswetter (1967), 7 Mich App 334. Justice does not require review.
No objection to the method of in-court identification was made by defendant at trial, but he now contends reversible error arose from that identification. This issue was not saved for review. People v. Rowls (1970), 28 Mich App 190.
A similar situation exists with defendant’s asserted reversible error with respect to one sentence of the trial court’s instruction relating to defendant’s testimony. It was not objected to below and error cannot be assigned. GCR 1963, 516.2.
This Court has repeatedly held that in order to preserve alleged prejudicial error in closing argument, an objection must be made. For the lack of objection, we decline review of the alleged reversible error arising from the prosecuting attorney’s closing argument.
Affirmed.
All concurred. | [
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Holbrook, P. J.
This action was brought under the provisions of MCLA § 211.53 (Stat Ann 1971 Cum Supp § 7.97) against the City of Grand Rapids for claimed excess in taxes paid under protest. The trial court, after a full trial, dismissed the complaint. Plaintiff has appealed.
Plaintiff is a Michigan corporation located at 1033 Freeman Avenue in the City of Grand Rapids. It is engaged in the business of fabricating structural steel and is further engaged in distribution of certain types of steel for industrial use.
In 1964, plaintiff proceeded with construction of a new warehouse with office building attached. The building was' completed in 1964.
The warehouse is rectangular in shape and contains approximately 100,000 square feet of floor space. The office portion contains about 4,500 additional square feet.
Mr. Morrison, who is the supervisor of the commercial and industrial building appraisals division of the city assessor’s office, made two visits to the site. One visit was in September of 1964, the other in December of 1964. At the time of these visits, the structure was substantially complete. He had two other staff members from his office with him at the time because of the complicated nature of the appraisal.
Before the appraisal was determined, the plaintiff had submitted to the assessor’s office a number of documents indicating expenditures by it concerning the construction of this structure. Included was the contract for the major portion of the building from the Beckering Construction Company.
The appraisal was determined to be $1,286,000. A breakdown indicates that of this figure, $174,000 represents land value, and $1,112,000 represents value of the structure. On this appeal plaintiff does not contest the valuation or assessment of the real estate. The assessed value of the total property in question was set at $434,000, the same being 33.75% of the total cash value as determined by the city assessor.
On February 10, 1965, after receiving its tax statement, plaintiff applied for a review of the appraisal with the city assessor’s office. The meeting was held on March 17, 1965. As a result of this meeting, a reduction of $62,000 was allowed which brought the assessed valuation down to $372,000.
Being yet dissatisfied with the reassessment, plaintiff filed for a hearing before the board of review. The board of review was composed of Mr. Clarence Thielman, city assessor, Mr. Morrison, and Mr. George Baldwin. At this meeting figures were submitted by plaintiff entitled accounting errors, and a letter by Ernst and Ernst, accountants for the plaintiff. Also, an appraisal was submitted by Mr. Joseph Zandstra, an independent appraiser. These figures were less than the city assessor’s appraisal.
The board of review allowed a further assessment reduction of $27,000, which brought the assessment down to $345,000.
Appeal was then taken to the State Tax Commission.
In July of 1965, Edwin Hovey, an appraiser for the state, made a reappraisal of the building at the request of the tax commission.
On November 19, 1965, the commission made a finding that $1,111,778 was the true cash value of the plaintiff’s property. Even though this finding was higher than that made by the City of Grand Rapids, the commission let the assessment of $345,000, as determined by the city, stand. The plaintiff did not appeal from the ruling of the State Tax Commission, but brought this action in the Kent County Circuit Court.
The plaintiff claims on this appeal that the assessment was illegal for the following reasons: (1) that the valuation of plaintiff’s buildings for assessment purposes did not represent true cash value; (2) the valuation of plaintiff’s new buildings for assessment purposes was arrived at by the adoption of wrong principles of assessment; (3) that the administrative agencies disregarded the actual cost of the plaintiff’s new buildings in favor of estimated costs; (4) that the assessment by the administrative agencies in the manner that it was computed constitutes illegal fraud upon the plaintiff; and (5) that the valuation of plaintiff’s buildings under the procedure adopted for tax assessment purposes was so excessive as to constitute fraud in law.
The city assessor, in originally arriving at the true cash value of plaintiff’s building, used as a basis the “Marshall and Stevens Appraisal Manual” and also his experience as an appraiser with the assessor’s office over a period of many years.
The plaintiff’s two appraisers, Blandford and Zandstra, apparently used the “Marshall and Stevens Appraisal Manual” in arriving at a true cash value of the building. The manual provides different approaches for determining reproduction costs of buildings. The plaintiff’s appraisers used the segregated cost approach, whereas the city assessor used the calculator cost method.
In the final analysis of this case, we have the plaintiff claiming that its cost of the building was $775,000, which is made up of $496,804.90 paid to Beckering Construction Company for its part of the construction and $278,195.10 for labor and materials furnished by the plaintiff. The final true cash value of the building as determined by the administrative agencies was the sum of $848,000. The difference between plaintiff’s claimed cost of the building and the assessed, true cash value as determined is the sum of $73,000.
Even though the administrative agencies may have accepted the cost to plaintiff of that portion of the building constructed by Beckering to be the true cash value thereof, there remained a dispute as to the true cash value of the labor and materials furnished by the plaintiff in completing the building. The city maintained that it could not accept the figures of plaintiff as to its cost or value of the materials and labor furnished by it. It was undisputed that plaintiff had favorable purchasing power in the open market, but there was disagreement as to the extent of that position. As further evidence of defendant’s position, there was testimony given at the trial that the value of the roof deck should have been figured at the rate of $.80 per square foot, whereas plaintiff placed a value of $.25 per .square foot for this item. The city placed the value of $.79 per square foot for electrical wiring or $82,000 instead of $52,630 which plaintiff claimed to be the proper figure for this item. The difference in value of the roof deck amounted to $55,000, and the electrical construction value difference amounted to approximately $30,000 or a total of $85,000. The city and the plaintiff differed also as to the value of the steel that was furnished by plaintiff in the construction of the building. We are cognizant of the recent rulings of our Supreme Court in the cases of Allied Supermarkets, Inc. v. State Tax Commission (1969), 381 Mich 693, Fisher-New Center Company v. State Tax Commission (1969), 381 Mich 713, and Pantlind Hotel Company v. State Tax Commission (1969), 381 Mich 717. These cases are authority for the rule of law that true cash value must be determined by the tax authorities. We agree that this rule of law is applicable to the present case. In this case, plaintiff claims that the taxes were unlawfully collected because the assessment was ascertained through wrong principles. The trial judge in his opinion stated correctly as follows:
“Plaintiff does not contend in this case that the Grand Rapids City Assessor or other administrative officials manifested an actual intent or purpose to defraud plaintiff or to discriminate against the plaintiff in favor of its competitors and other taxpayers.”
The burden of proof was upon the plaintiff to establish constructive fraud in the assessment of plaintiff’s property. Kingsford Chemical Company v. City of Kingsford (1956), 347 Mich 91. The trial judge determined that the plaintiff failed in establishing its claim of constructive fraud. We are constrained to agree. In the case of S. S. Kresge Co. v. City of Detroit (1936), 276 Mich 565, 572, 573 it is stated:
“The assessors are not required to abide by the facts presented by a taxpayer and ‘Courts cannot substitute their judgment as to the valuation of property for the judgment of the duly constituted tax authorities.’ 4 Cooley on Taxation (4th ed), p
“Our attention has not been directed to authorities holding that courts may set up the methods for determining values and we apprehend that none can be found.
“ ‘In determining the amount of the assessment, the board was not bound by any formula, rule or method, but for guidance to right judgment it was free to consider all pertinent facts, estimates and forecasts and to give them such weight as reasonably they might be deemed to have. Courts decline to disturb assessments for taxation unless shown clearly to transgress reasonable limits. Overvaluation is not of itself sufficient to warrant injunction against any part of the taxes based on the challenged assessment; mere error of judgment is not enough; there must be something that in legal effect is the equivalent of intention or fraudulent purpose to overvalue the property and so to set at naught fundamental principles that safeguard the taxpayer’s rights and property. Rowley v. Chicago & NW R. Co. (1934), 293 US 102, 109-111 (55 S Ct 55, 79 L Ed 222). The assessment is presumed to have been made on the basis of actual value. Its validity must be tested upon consideration of the facts established by the evidence and of those of which judicial notice may be taken.’ Great Northern R. Co. v. Weeks (1936), 297 US 135 (56 S Ct 426, 80 L Ed 532).” Also see, Hudson-Webber Realty Co. v. City of Southfield (1969), 18 Mich App 66.
It is apparent that there was a difference of opinion between the plaintiff and the taxing authorities as to the true cash value of plaintiff’s property. Under these circumstances, we cannot accept plaintiff’s contentions that the assessment was so excessive as to be fraudulent. Kingsford Chemical Company v. City of Kingsford, supra.
It is not the prerogative of the Courts to set the true cash value of property for tax purposes. Had we been in the place of the taxing authorities, we might have accepted the plaintiff’s evidence of the true cash value. In reviewing the matter, the law forbids such a course of action. S. S. Kresge Co. v. City of Detroit, supra.
Affirmed. Costs to defendant.
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Memorandum Opinion. Defendant Bobby Boomer was convicted by a jury of breaking and entering with intent to commit larceny. MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305). He appeals as of right.
Defendant contends that the trial court erred by conducting a brief examination of the driver of the automobile during redirect examination. The record reveals that the trial judge’s obvious purpose was to clear up an ambiguity in this witness’ identification testimony. It was entirely proper for the trial judge to interpose questions consonant with the court’s duty “to control all proceedings during the trial * * * with a view to the expeditious and effective ascertainment of the truth regarding the matters involved”. MCLA § 768.29 (Stat Ann 1954 Rev § 28.1052).
Defendant also contends that it was error to admit a certain jacket into evidence on ground that the proper foundation had not been laid. Defendant’s specific objection is that the chain of custody of the jacket was not established. We disagree. The record reveals that positive identification of the jacket was made by all concerned, and that from the time it was given to police at the scene, tagged as evidence, and stored in a police locker, to the time it was produced at trial, its whereabouts were sufficiently explained. Defendant’s contention is without merit.
Affirmed. | [
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Per Curiam.
Defendant, while serving a prison sentence at Cassidy Lake, took French leave. Upon his plea of guilty to the charge of escape, he was given a sentence of one year. Soon after his return to prison the corrections commission informed the trial judge that the sentence was invalid under MCLA § 769.28 (Stat Ann 1971 Cum Supp § 28.1097 [1]). Thereupon the defendant was returned to the trial court and, over objection, the sentence was changed to provide for a minimum term of one year and a maximum term of five years.
The defendant claims that the one-year sentence first imposed is valid and cannot be changed citing: People v. Parson (1956), 345 Mich 727; Elliot v. Department of Corrections (1955), 343 Mich 681; People v. Chivas (1948), 322 Mich 384; In re Richards (1907), 150 Mich 421. We agree.
Contrary to the contention of the people and the apparent position of the corrections commission, the indeterminate sentence act does not apply to the offense of escape from prison, In re Wilson (1940), 295 Mich 179, as is apparent from the language of the two statutes. The escape from prison act provides for “further imprisonment for not more than five years * * * to be served after the termination * * * of any sentence * * * then being served”. (Emphasis supplied.) The indeterminate act provides, “When any person shall hereafter be committed for the first time * * * the court * * * shall not fix a definite term of imprisonment, but shall fix a minimum term * * * ”. (Emphasis supplied.) The escape from prison act clearly requires a consecutive sentence which can be for a period of not more than five years.
MCLA § 769.28 (Stat Ann 1971 Cum Supp § 28-.1097 [1]) has no application here. It applies by its very terms to offenses which carry a maximum penalty of one year or less.
Remanded for reinstatement of original sentence.
MCLA § 750.193 (Stat Ann 1971 Cum Supp § 28.390).
MCLA § 769.8 (Stat Ann 1954 Rev § 28.1080). | [
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] |
Memorandum Opinion. This case is submitted on the people’s motion to affirm. On October 19, 1970, defendant was convicted, on a plea of guilty, of the crime of assault with intent to rob being armed contrary to MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). On January 18, 1971, he was sentenced to serve 4 to 20 years im prisonment. Appellate counsel was obtained and this appeal was filed alleging that the trial court failed to comply with GCR 1963, 785.3(2).
Defendant’s first allegation is that the trial court did not adequately establish by direct questioning the defendant’s participation in the commission of the crime as required by People v. Barrows (1959), 358 Mich 267, 272. Contrary to defendant’s allegation, however, the transcript reveals the following:
“The Court: What did you do ?
“Mr. Smith: I robbed a guy with a double barrel shotgun.
“The Court: How much did you get?
“Mr. Smith: Not too much, somewhere around thirty dollars.
“The Court: Where was it at?
“Mr. Smith: I was coming out of the apartment and I told him it was a stick-up and I told him that if he did what I told him he wouldn’t get hurt.
“The Court: Did he get hurt?
“Mr. Smith: No he didn’t.
“The Court: Did he do what you-said?
“Mr. Smith: He done what I said.”
Defendant’s second contention is that his plea was induced by promises of probation emanating from his trial counsel. However, the transcript reveals that the trial court fully advised defendant of the consequences of his plea and queried defendant concerning any promises of leniency. Defendant stated unqualifiedly that he had not been promised probation by anyone. Later allegations of leniency by defendant therefore, are without merit. People v. Shaffer (1966), 4 Mich App 192, 195; People v. Gant (1966), 4 Mich App 671, 675; People v. Drain (1970), 24 Mich App 249, 250.
It is therefore manifest that the questions sought to be reviewed, on which decision of this cause depends, are so unsubstantial as to need no argument or formal submission. Accordingly, there being no miscarriage of justice the motion to affirm is granted. | [
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Per Curiam.
The defendant was convicted by the court of assault with intent to rape, contrary to MCLA § 750.85 (Stat Ann 1962 Rev § 28.280), and breaking and entering with intent to commit rape, MCLA 1971 Cum Supp § 750.110 (Stat Ann 1971 Cum Supp § 28.305).
Each of defendant’s six allegations of error concerns the admission of testimony which is now claimed to have been erroneously admitted. A review of the transcript indicates that none of the alleged errors were objected to at trial, none has resulted in manifest injustice to the defendant, and none of which requires reversal. People v. Raub (1967), 9 Mich App 114; People v. Ray Smith (1969), 20 Mich App 243; People v. Kennedy (1970), 22 Mich App 524.
Affirmed. | [
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Memorandum Opinion. The complaint alleged that plaintiff, Ethel Dillon, while pregnant and employed at defendant’s store, contracted the disease rubella because of defendant’s negligence in failing to maintain sanitary conditions. As a result, the child, plaintiff Reginald Dillon, suffered serious and permanent injuries.
Defendant filed a motion for summary judgment based upon Newman v. City of Detroit (1937), 281 Mich 60, and Marlow v. Krapek (1969), 20 Mich App 489, which decisions denied recovery under these facts. On November 23, 1970, the Wayne Circuit Judge entered an order for summary judgment of dismissal.
In light of the Supreme Court’s decision in Womack v. Buchhorn (1971), 384 Mich 718, we reverse and remand for a trial on the merits. | [
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J. H. Gillis, J.
Defendant, John Alexander, and Eugene Gabbard, a codefendant, were charged with obstructing justice, MOLA § 750.505 (Stat Ann 1954 Rev § 28.773), and conspiracy to obstruct justice, MOLA § 750.157a (Stat Ann 1971 Cum Supp § 28.354 [1]). Defendant Alexander, in a jury trial, was found guilty on both counts. Codefendant Gab-bard was found not guilty on each charge.
Defendant Alexander contends there was insufficient evidence adduced at trial to establish his guilt beyond a reasonable doubt. An examination of the record discloses more than ample testimony to support the conviction of obstructing justice. People v. Coleman (1957), 350 Mich 268. Additionally, defendant’s own testimony corroborates the bulk of the testimony presented by the people.
Defendant next contends that the trial court erred in accepting the verdict from the jury on the second charge of conspiracy to obstruct justice in light of the fact that the codefendant was acquitted of the same charge.
“A conspiracy is a partnership in criminal purposes.” United States v. Kissel (1910), 218 US 601, 608 (31 S Ct 124, 126; 54 L Ed 1168, 1179). Our Michigan Courts have stated:
“There is no such thing as a one-man conspiracy.” People v. Heidt (1945), 312 Mich 629, 642; see also: People v. Cooper (1950), 326 Mich 514, 518.
When the jury found the eodefendant not guilty, the court could not accept the verdict of guilty on the conspiracy charge in defendant Alexander’s case. People v. Cooper, supra.
However, the crime of obstructing justice, unlike the conspiracy count, is not inherently a joint act. An acquittal of the codefendant on this count does not per se absolve defendant. People v. Frye (1929), 248 Mich 678.
Other allegations of error do not warrant a discussion.
Defendant’s conviction on the charge of conspiracy to obstruct justice is set aside without a new trial. Defendant’s conviction on the charge of obstructing justice is affirmed.
All concurred. | [
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] |
McGregor, P. J.
The defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny therein. MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305). He was sentenced to a term of 4 to 15 years in prison with a recommendation for the Michigan Training Unit. His delayed motion to withdraw his guilty plea was denied by the trial court on April 2, 1971.
On appeal the defendant alleges that the trial court abused its discretion in denying the defendant’s delayed motion to withdraw his plea of guilty. The issue is without merit. This Court has repeatedly held that Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274) does not require on-the-record statements waiving the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. People v. Jaworski (1970), 25 Mich App 540, appeal pending; People v. Sepulvado (1970), 27 Mich App 66; People v. Miles (1970), 28 Mich App 562; People v. Dawkins (1971), 30 Mich App 186; and People v. Mitchell (1971), 30 Mich App 233. Additionally, the defendant was advised on the record of his constitutional rights by both the defense counsel and the trial court. The granting of a delayed motion to withdraw a guilty plea when made after conviction and sentence, as in this case, must be based upon a showing of a miscarriage of justice. People v. Winegar (1968), 380 Mich 719. The defendant has not carried his burden of alleging facts which if true substantiate a finding that there was a miscarriage of justice. The question sought to be reviewed is so unsubstantial as to require no argument or formal submission.
Motion to affirm is granted.
Danhop, J., concurred. | [
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Per Curiam.
Defendant pled guilty to the crime of assault with intent to rob being armed. On appeal the people have filed a motion to affirm, pursuant to GCR 1963, 817.5(3).
A review of the briefs and records in this eause make it manifest that the question sought to be reviewed is so insubstantial as to need no argument or formal submission.
Accordingly the motion to affirm is granted.
MOLA § 750.89 (Stat Ann 1962 Rev § 28.284). | [
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Per Curiam.
This is an automobile negligence action brought by plaintiffs Michael J. Miles and his wife Vivian Miles. On November 21, 1969, a judgment on the jury verdict of no cause of action for defendant was entered. Plaintiffs have appealed.
On July 8, 1968, at 8 a.m., Mr. Miles was driving his automobile on highway M-64 in a southerly direction approaching the intersection of Plant Site Road. The defendant’s employee was driving a truck on Plant Site Road in a westerly direction approaching the intersection with highway M-64. Defendant’s vehicle was required to stop before entering highway M-64. Plaintiffs’ witness testified that defendant’s driver did not stop but proceeded into the intersection when the plaintiff driver was in close proximity thereto. Plaintiff driver observing defendant’s vehicle, applied his brakes to avoid a collision, causing his vehicle to go out of control, skidding off the highway and down a hill. The plaintiff driver claimed to suffer injuries as a result.
Defendant’s witnesses testified that its driver did stop at the intersection and that plaintiff driver was driving at an excessive rate of speed, and further that defendant’s driver was not guilty of any negligence. Plaintiffs raise two issues on this appeal.
(1) Is it reversible error to deny counsel the right to examine a memorandum which a witness reviewed to refresh his memory as to the date and time of the incident before testifying?
The defendant called an eyewitness to the incident. This witness testified on cross-examination that just before coming into the courtroom he had reviewed his own written statement given to defendant’s insurance company. Plaintiffs’ counsel requested an opportunity to examine this memorandum. The request was denied on the ground that it could have been obtained through discovery proceedings.
In 82 ALR2d, Refreshment of Recollection by Use of Memoranda or Other Writings, § 63, Memorandum used out of courtroom; production not generally required, it is stated on p 562:
“Notwithstanding authority to the contrary, it has been held in many recent decisions that where a witness has refreshed his present recollection prior to the time of giving testimony, by the use of papers or memoranda out of court, he is not, unless the court in its discretion orders otherwise, obliged to produce them to allow the opposing party to make an inspection.”
Under this annotation we fail to find any Michigan cases cited.
In 3 Wigmore on Evidence (Chadbourn rev 1970), § 762, writing must be shown to the opponent, on demand, for inspection and cross-examination; memoranda used before trial, it is stated at pp 136, 139, 140:
“On a general principle (§ 1861 infra), that has in view the risk of imposition and false aids, against which the opponent is entitled to the means of protection, the writing must be shown to him on request. Furthermore, as by this opportunity of inspection the opponent is guarded against imposition clearly apparent, so by cross-examination based on the paper he may further detect circumstances not appearing on the surface, and may expose all that detracts from the weight of testimony.
“Clear as the justice of this would seem to be, there are courts which deny it, and others which seem to. They are led away, in most instances, by perceiving the general distinction between a record of past recollection and a paper reviving present recollection, and by concluding that, because the rule about producing originals applies to the former (§749 supra) but not to the latter (§ 760 supra), therefore it is unnecessary to produce and show the paper to the opponent. These decisions, however, are in a small minority, and have no principle to support them. Just how much of the document may be examined by the opponent (for example, when it is a book of accounts) depends much on the circumstances of each case; in general, the parts relative to the subject of testimony, not merely the parts used by the witness, may be seen.
“The rule should apply, moreover, to a memorandum consulted for refreshment before trial and not brought by the witness into court; for, though there is no objection to a memory being thus stimulated, yet the risk of imposition and the need of safeguard is just as great. It is simple and feasible enough for the court to require that the paper be sent for and exhibited before the end of the trial.”
Wigmore’s treatise cites the Michigan cases of Duncan v. Seeley (1876), 34 Mich 369 and People v. Lyons (1882), 49 Mich 78, in its annotations of states which follow this general rule. Also see Cortland Manufacturing Company v. Platt (1890), 83 Mich 419; People v. Schepps (1922), 217 Mich 406.
We also find in 82 ALR2d, § 64, on pp 568, 569, that the cases of State v. Hunt (1958), 25 NJ 514 (138 A2d 1), Alfredsen v. Loomis (1956, Sup Ct) 148 NYS2d 468, and In Re Hewett’s Will (1947), 271 App Div 1054 (70 NYS2d 3; aff'd 297 NY 565, 74 NE2d 482) are discussed. The rulings in all three of these cases are consistent with the general rule as set forth in Wigmore on Evidence.
We are constrained to rule that it was reversible error for the trial court to refuse the request of plaintiffs’ counsel to inspect the statement and use it in his cross-examination of defendant’s witness.
(2) This issue pertains to claimed errors resulting in the manner in which the verdict of the jury was received, specifically the confusion attending the polling of the jury. Some members of the jury attempted to be helpful by offering information other than that required or requested. These volunteered statements caused the confusion. We believe that this will not occur again on retrial and, therefore, do not consider this issue.
Reversed and remanded for a new trial.
Costs to plaintiffs. | [
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Per Curiam.
Defendant was convicted by a jury of the crime of robbery armed contrary to MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). This appeal of right followed with the people filing a motion to affirm.
Defendant’s alleged accomplice in the commission of the crime, Cur'tis Lovelace, had pled guilty to attempted robbery before defendant’s trial. During the taking of the plea the trial judge told Lovelace that if his plea were accepted he would have to testify against the instant defendant. At the instant defendant’s trial Lovelace did so testify stating that the defendant had assisted him in the commission of the robbery. Defendant submits that the above procedure was reversible error.
We disagree. Although the trial judge’s admonition to defendant’s accomplice, that he would have to testify against defendant, was probably incorrect, see People v. Herbert Smith (1971), 34 Mich App 205, such admonition did not taint such accomplice’s testimony in the instant case. When faced with a similar argument the Sixth Circuit Court of Appeals held as follows:
“Conceding that there is no decisional law or published academic dissertation to support him, appellant asserts that use of testimony from defendants who had pleaded guilty but had not been sentenced was an evil practice, which should not have been tolerated. He equates the withholding of sentence with an inducement to the witnesses to perjure themselves or to give biased testimony in favor of the prosecution in the hope of reward by a lenient sentence. The relevant facts could of course have been emphasized on cross-examination and argued to the jury upon the question of such witnesses’ credibility. Instruction could be requested on the same subject. See United States v. Rainone (CA 2, 1951), 192 F2d 860, 861.
“We are not disposed to fashion a rule heretofore unknown in the jurisprudence of criminal prosecutions. Neither are we impressed that the use of the testimony of an unsentenced accomplice deprives one who stands trial of due process or fair treatment. [Citing cases.] We find no disagreement with the text that ‘the fact that a witness hopes or expects that he will secure a mitigation of his own punishment by testifying on behalf of the prosecution does not disqualify him’. 23 CJS, Criminal Law, § 805, p 70.” United States v. Vida (CA 6, 1966), 370 F2d 759.
In addition, the instant accomplice’s testimony was corroborated by the testimony of three eyewitnesses who also identified the instant defendant as a participant in the crime.
It is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission. Accordingly, the people’s motion to affirm is granted. | [
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Per Curiam.
Defendant was charged with breaking and entering an occupied dwelling house with intent to commit larceny. MCLA 1971 Cum Supp § 750.110 (Stat Ann 1971 Cum Supp § 28.305). Defendant pleaded guilty to the crime as charged. Defendant was sentenced to a term of four years to ten years in prison. Subsequently a nunc pro tunc order was entered by the trial court to correct the maximum sentence to 15 years as provided for by the statute.
The questions on appeal are:
I. Did the defendant plead guilty to the crime of breaking and entering an occupied dwelling house with the intent to commit larceny?
II. Was the trial court’s examination of the defendant sufficient for the acceptance of a guilty plea?
III. Did the trial court accept the defendant’s guilty plea without first establishing that defendant understood and was aware of the consequences of the plea?
IV. Did the trial court err when it accepted the defendant’s guilty plea without a specific waiver of a jury trial by the defendant?
V. "Was it proper for the trial court to correct the maximum sentence without the presence of the defendant before the court and by entry of a mmc pro tunc order?
A fair review of the record shows that defendant pled guilty to the crime as charged.
The trial court’s examination of the defendant established that a crime had been committed and that the defendant participated in it. The examination also ascertained that the plea was honest and truthful. Thus, the requirements of People v. Barrows (1959), 358 Mich 267 and People v. Bartlett (1969), 17 Mich App 205 were met. The trial court properly accepted the plea of guilty in accordance with GCR 1963, 785.3(2) and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058).
The record further reveals that defendant understood and was aware of the consequences of his plea. In addition defendant was represented by counsel during the guilty plea proceedings.
Michigan does not require a specific waiver of the right of trial by jury. People v. Taylor (1970), 383 Mich 338; People v. Jaworski (1970), 25 Mich App 540; People v. Sepulvado (1970), 27 Mich App 66. Defendant was informed of his right to a jury trial and was informed that if he entered a plea of guilty he would lose it. The defendant indicated his understanding of this and still entered the plea of guilty.
At sentencing the trial court imposed a lesser maximum sentence than provided for by the statute. By statute, MCLA § 769.8 (Stat Ann 1954 Rev § 28-.1080), the trial court is required to fix the maximum sentence as provided for by statute. The Supreme Court has said that any sentence imposed which is not in accordance with the statutory maximum is a nullity. In re O’Dell (1962) 365 Mich 429. The duty to impose a maximum sentence is ministerial. In re Pardee (1950), 327 Mich 13; In re Evans (1912), 173 Mich 25.
The entry of a nunc pro tunc order is a proper method to correct a maximum sentence. In re Lemire (1960), 360 Mich 693.
The defendant did not need to be before the trial court when the correction was made. In re Pardee, supra.
We find no error in the proceedings below and hold that the trial court is hereby affirmed. | [
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Bronson, J.
Defendant was charged and subsequently convicted by a jury of the crime of armed robbery contrary to MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). Defendant appeals as of right.
The only meritorious issue raised on appeal relates to the trial court’s instruction to the jury. At trial, defendant’s counsel did not request an instruction on specific included offenses, nor was objection made to the trial court’s instruction. The testimony below established the commission of an armed robbery. This testimony was undisputed and unequivocal. Two witnesses identified defendant as the perpetrator of the armed robbery. The defense was alibi.
The trial judge instructed the jury as follows:
“With regard to the possible verdicts in this case I instruct you that there are two possibilities:
“The first is that if you find that the people have proven beyond a reasonable doubt that the defendant, Mabry Wansley, is guilty of armed robbery, the charge contained in the information, then you will report that as your verdict and it will be reported by your foreman or forelady as follows — ‘We find the defendant guilty of armed robbery.’
“If you find that the people have failed to prove beyond a reasonable doubt that the defendant, Mabry Wansley, is guilty of the offense charged for any of the reasons which have been submitted to you in this charge, you will acquit the defendant and you would report that verdict as ‘We find the defendant not guilty.’ ”
Defendant argues that the quoted instruction constituted reversible error because the trial court failed to instruct the jury as to the included offenses of armed robbery. Defendant contends that the trial court’s failure to instruct on included offenses constituted in effect an affirmative exclusion of included offenses, and as such, the case of People v. Lemmons (1970), 384 Mich 1, mandates reversal. We disagree.
Recently, in People v. Membres (1971), 34 Mich App 224, this Court interpreted the decision in Lemmons to require reversal only where:
“(1.) there is no request for an instruction on lesser offenses; (2.) there is evidence on the record to support a conviction on a lesser offense so that, if requested, it would have been error to refuse to instruct on it; and, (3.) the court affirmatively excludes the jury from considering lesser offenses.”
In the instant case, since no evidence was presented on the record to support a conviction on a lesser offense, Lemmons is inapplicable.
The case of People v. Netzel (1940), 295 Mich 353, is, in our opinion, dispositive of the instant appeal. In Netsel, no request was made for an instruction on included offenses. The testimony on the record would not support a verdict on an included offense. The trial court instructed the jury that: “There are only two possible verdicts, one of guilty as charged, the other, not guilty.” The Court, in affirming defendant’s conviction, held that the charge was proper since no evidence had been presented to support included offenses.
Judgment affirmed.
All concurred.
Although defendant’s counsel initially made a general request for instructions on included offenses, this request was subsequently withdrawn. Even if the request had not been withdrawn, the trial court would not have been required to instruct on included offenses, since no evidence was presented to support an instruction on lesser included offenses. See People v. Hearn (1958), 354 Mich 468; People v. Utter (1921), 217 Mich 74. | [
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McGregor, P. J.
The dispute in this case involved the title to residential rental property, located in the City of Jackson, Michigan. A review of the relevant history of the title discloses that, on February 3, 1948, Ida Tray, by quitclaim deed, conveyed the property in question through a straw man, to herself and to Sarah Tray, her daughter-in-law, Sally Ann Tray and Edward S. Tray, both minors, her grandchildren, as joint tenants with right of survivorship. Through letters which are exhibits in this case, it appears that this gift by Ida Tray to the others was subject to an oral agreement that the property would be reconveyed to her at her request. At all times relevant to this case, Sarah Tray, Sally Ann Tray, and the plaintiff were residents of the State of Wisconsin. On December 29, 1953, Sarah Tray, individually, and as guardian of Edward S. Tray (plaintiff herein), at that time 19 years of age and a minor, and Sally Ann Tray, who had by that time attained her majority, attempted to convey all interests in the property in question back to Ida Tray. No guardian for the minor Edward S. Tray was legally appointed, nor did he individually join in the execution of the deed. This reconveyance appears to have been an attempted fulfillment of the oral agreement by his mother.
On January 9, 1954, Ida Tray, through a straw man, attempted to convey the property in question to herself, Jessie M. Whitney (Ida Tray’s sister), and Cathryn M. Whitney (Jessie M. Whitney’s daughter), as joint tenants with right of survivor-ship.
Ida Tray died on May 17, 1956. Jessie Whitney died January 12, 1958.
All deeds at issue in this case were properly recorded with the county register of deeds.
Testimony at trial indicated that the plaintiff first began investigating the possibility of his having an interest in the property in question in 1956. The complaint in this matter was filed April 23, 1963, asking the court to determine that plaintiff is the owner of said lands, alleging:
“Plaintiff, at the time of the execution of the deed referred to in the last preceding paragraph, was a minor, having been born on November 8,1934; plaintiff did not join in said deed; in point of fact, the said Sarah Tray had never been appointed general guardian of plaintiff, or of his estate, either in the State of Wisconsin, then the residence of the said Sarah Tray and her son, the plaintiff, in the State of Michigan, or elsewhere; and the attempted conveyance of the interest of the plaintiff in said premises in such manner by the said Sarah Tray was a nullity and ineffectual to divest plaintiff of the interest created in him to said lands by virtue of the conveyance above set forth.”
After much delay, trial in this action was held on August 6, 1968. It should be noted that the record and the trial court’s opinion are barren of any prejudices resulting to the defendant by such delay, other than the finding that the defendant paid taxes and maintained the property, which she “rented out”. On February 17, 1970, the trial judge issued an opinion deciding the matter on the basis of laches, which the defendant had asserted as an affirmative defense. The opinion of the trial court is based solely on this issue and does not deal with any of the other issues raised in this matter. A motion for new trial was made and denied by the trial court.
The question before the appellate court is whether the trial judge properly applied the doctrine of laches in his decision.
Plaintiff cites nine issues on appeal. The cumulative result, basically, is that the doctrine of laches was inapplicable to the case at hand.
Defendant cites two issues, one being whether laches was properly applied, and the other dealing with whether the beneficiary of a gift can accept the benefits and reject the burdens of a contract. This second issue was not ruled on by the lower court and is not properly before this Court.
A review of the complaint indicates that it is a classical action for ejectment. The plaintiff is a party who is not in possession of property, who is seeking to determine proper title to the property in possession of another. Ejectment is an action at law, as opposed to an action to quiet title, an action where one in possession of property seeks to clear title against the world, which is an action in equity. At common law, equitable defenses were not available in ejectment. Paldi v. Paldi (1893), 95 Mich 410. Laches is an equitable defense. In 1924, the Supreme Court of Michigan made the following statement with respect to a defense of laches in an action of ejectment:
“Defendants invoke the doctrine of laches. Laches, short of limitations fixed by law, are not available defenses in ejectment.” Lowry v. Lyle (1924), 226 Mich 676.
The principle enunciated above, cited in Lowry, has never been repealed by a Michigan court.
Applying the principle stated above to the action at hand, the application of the doctrine of laches by the trial judge in this case was inappropriate, as the plaintiff brought his action within the 15-year limitation period, found in MCLA § 600.5801(4) (Stat Ann 1962 Rev § 27A.5801[4])., PA 1961, No 236, MCLA §600.2932 (Stat Ann .1962 Rev § 27A-.2932) combined the two actions of ejectment and quiet title, and created a single action to determine interests in land. Subsection 5 of the statute states:
“Actions under this section are equitable in nature.”
If all actions to determine title in land are equitable in nature under MCLA § 600.2932, it is questionable whether the principle that equitable defenses are not available in actions of ejectment still has viability. Apparently, this question has not been passed on by our Supreme Court. It would seem logical that the merger of law and equity eliminates any reason to prevent application of equitable defenses to what had previously been legal actions. Therefore, equitable defenses should no longer be inapplicable.
If the reasoning stated above is valid, this Court is then faced with the question of whether, on the merits, the trial judge properly applied the doctrine of laches.
It is well established that the doctrine of laches consists of more than the mere passage of time. In Sloan v. Silberstein (1966), 2 Mich App 660, our Court made the following statement:
“While laches is similar to statutory limitations, there is a substantial difference between them. Laches differs from limitations in that limitations are concerned with the fact of delay, laches with the effect of delay. Laches is concerned principally with the question of the inequity of permitting a claim to be enforced and depends on whether plaintiff has been wanting in due diligence. Limitations are statutory, while laches is not. Laches applies only in equity, while limitations prior to January 1, 1963, apply only at law. Limitations are based on fixed time, while laches is not.” 2 Mich App 676.
In the case of Brydges v. Emmendorfer (1945), 311 Mich 274, the Supreme Court discussed the elements of laches extensively:
“We are not in accord with defendants’ claim that the trustee is barred by laches or statute of limitations from maintaining the suit. The statute of limitations does not control the question of laches in equitable actions.
“ ‘Time alone does not constitute laches, but there must have been a change of conditions which would render it inequitable to enforce the claim (21 CJ, p 212 et seq.), or a showing that the defendant was prejudiced by the delay. Orloff v. Stott, (1927), 239 Mich 563.’ Collins v. Lamotte (1928), 244 Mich 504, 509.
“ ‘In Sanders v. Campbell (1925), 231 Mich 592, it was held that even where there was delay in asserting the right, that in itself did not constitute laches; instead the delay must have resulted in some prejudice to the party asserting laches which would make it inequitable to disregard the lapse of time and incidental consequences.’ Carey v. Lauhoff (1942), 301 Mich 168, 175.
“ ‘Furthermore, laches is purely an equitable defense and lapse of time alone will not create it. There must be other circumstances than mere lapse of time that would make it inequitable to grant the relief sought.’ Kutschinski v. Zank (1943), 307 Mich 260, 271, 272.
“There is no showing in this case from which an inference may be drawn that the defendants have been harmed by any delay in bringing the suit to set aside the deeds.
“ ‘In Carey v. Lauhoff (1942), 301 Mich 168, the Court applied the rule laid down in Sanders v. Campbell (1925), 231 Mich 592, where it was held that, even where there was delay in asserting the right, that of itself did not constitute laches, but that it must appear that the delay resulted in some prejudice to the party asserting laches which would make it inequitable to disregard the lapse of time and the incidental consequences.’ Spencer v. Childers (1943), 307 Mich 145, 148.” 311 Mich at pp 279, 280.
Laches is not the mere passage of time, but is rather the passage of time combined with a change in condition which would make it inequitable to enforce a claim against the defendant. Nowhere in the record of this case is there any indication of any change of condition caused by the passage of time which would make it inequitable to enforce this claim against the defendant. Defendant did not specifically allege any harm which stems from the passage of time that would result from the enforcement of the claim against her. Her affirmative defense merely sets out the defense of laches without any specificity. A review of the transcript in this matter does not reveal any grounds other than the mere passage of time upon which the defense of laches is asserted, and a reading of the opinion of the trial judge shows that he has not stated any grounds upon which laches may be founded other than the mere passage of time. No other inequities can be found in the record. From this lack of inequities other than the passage of time, it is clear that the trial judge has inappropriately applied the doctrine of laches.
Reversed and remanded to the trial court for further action not inconsistent with this opinion. This opinion is not to he construed as deciding which party is legally entitled to said property or the interest therein. Costs to plaintiff.
Bronson, J., concurred.
O’Hara, J.
(for affirmance). The litigation at hand arises from a dispute over title to residential property in the City of Jackson, Michigan.
Examination of the history of the title, insofar as relevant to this case, discloses the following facts:
On February 3, 1948, Ida Tray conveyed the property in question by quitclaim deed through a straw man to herself, Sarah Tray, her daughter-in-law, Sally Ann Tray, and Edward S. Tray, both minors, her grandchildren, as joint tenants with right of survivorship. Although the conveyance was absolute in form, letters introduced in evidence at the trial indicate that the gift by Ida Tray to the other parties was subject to a condition that the property would be reconveyed to her at her request. Thereafter, on December 29, 1953, the aforementioned Sarah Tray, individually, and as guardian of Edward S. Tray, at that time 19 years of age and a minor, and Sally Ann Tray, who had by that time attained the age of majority, attempted to convey their interest in the property back to Ida Tray. At no time did the minor Edward S. Tray join in the conveyance, nor was the deed executed in his name by a duly-appointed guardian.
Subsequently, on January 9, 1954, Ida Tray, through a straw man, attempted to convey the property to herself, Jessie M. Whitney, Ida Tray’s sister, and Cathryn M. Whitney, the defendant in this cause, as joint tenants with right of survivorship.
Ida Tray died on May 17, 1956. On January 12, 1958, Jessie M. Whitney died. As a result, the defendant appeared to hold record title to the property in fee simple absolute.
Plaintiff, Edward S. Tray, thereafter began an action in April, 1963, to determine interest in the land, praying that the court determine that he was the owner of the property in question and, further, that defendant be required to account for the reasonable value of the use of the premises, along with the rents and profits which had accrued while defendant was in possession.
From the judgment in favor of .defendant, and the denial of plaintiff’s motion for a new trial, plaintiff appeals of right.
Numerous assignments of error have been made by the parties but, in essence, the central issue relates to whether the doctrine of laches was properly invoked by the trial court.
In view of the merger of law and equity in this state, and the supplanting of the hitherto separate actions of ejectment and to quiet title by a single action to determine interests in land, expressly declared to be equitable in nature, there appears to be little reason to determine the question of whether the equitable defense of laches may be interposed to an action formerly cognizable only at law. Since plaintiff has successfully petitioned the chancellor to assume jurisdiction over his cause, he should not be heard to complain at this late date.
Contrary to the assertion of plaintiff that the record does not evidence any grounds upon which laches may be founded, other than the passage of time, the trial court detailed specific findings as to why plaintiff’s lack of diligence precluded granting the relief sought.
I quote from the well-reasoned opinion of the learned trial judge in relevant part:
“The plaintiff herein knew in 1953 when he was 19 years of age that his mother, Sarah Tray, deeded the property in question back to Ida Tray and in said conveyance signed as his guardian. This was discussed by him with his mother in connection with giving the quitclaim deed to Ida Tray and Ida requesting it because she needed money for medical expenses.
“When Ida Tray died on May 17, 1956, plaintiff was 21 years of age, having reached his majority on November 8, 1955.
“He was contacted by a firm of attorneys in Tennessee in November, 1956, advising that he had a possible interest in the property and requesting if he wished to pursue his claim thereto. He retained counsel in Tennessee to represent him in this matter in December, 1956. The matter was then referred to his present counsel and, other than the fact that he spent two years in military service, no reason is advanced for his not commencing suit to assert his claim until April 23, 1963, other than that the matter was being investigated.
“As stated aforesaid, Ida Tray died May 17, 1956, and Jessie Whitney died January 12, 1958. Since the death of both, the defendant and crossplaintiff has paid the taxes and maintained the property in question which has been rented out by her, which facts were known or should have been known by the plaintiff if he was really interested in claiming this property as his own.
“All of the testimony hereinbefore referred to is relevant and admissible for consideration by this court on the question of laches.
“Actually, what we have here is an effort by this plaintiff to upset a conditional family agreement as to this property (which was later reputed by deeds of conveyance, creating a joint tenancy with right of survivorship, as evidenced by exhibits 7 and 8), which conditional family agreement was obviously entered into to avoid probate as to the property in question. Although the plaintiff was not an actual participant in the conditional family arrangement, the plaintiff did have actual knowledge of the same, which fact may be considered by this court.
“There was a delay in pressing this claim of plaintiff for seven years and five months after he reached majority and for six years and four months after retaining counsel. The fact that he was in military service for two years is not being overlooked, but it has a rather hollow ring under all the circumstances.
“If this plaintiff was not in agreement with the termination of the conditional family agreement aforesaid, he was under a duty and obligation to assert and press his claim within a reasonable time after the disability of infancy ceased.
“Laches is an affirmative defense which depends not merely on lapse of time but principally on the requisite of intervening circumstances which would render inequitable any grant of relief to a dilatory plaintiff. See Lewis v. Poel [1965], 376 Mich 167.
“For this plaintiff not to assert his claim to this property for the period which he did while someone else used this property, paid the taxes on it, and maintained it, makes him guilty of unconscionable and inexcusable delay and, hence, guilty of laches which bars his now asserting his claim. In making this statement, the court is aware of the fact that he was not a resident of the State of Michigan.
“This plaintiff is an intelligent individual who at the time of trial of this matter on August 6, 1968, had been employed as a sales engineer by an engineering company in Chicago, Illinois, for a period of five years. If his desires with reference to pressing this claim were not carried out by his attorneys, then he was under a duty and obligation to see that his desires were carried out.”
For the reasons here set forth, I conclude that the trial court properly applied the ancient doctrine of laches to deny plaintiff relief under circumstances which otherwise would bring about an unjustifiable hardship upon the defendant, who had reasonably relied upon the apparent state of title and the acquiesence therein by plaintiff. The judgment below finding title in the defendant should accordingly be affirmed.
Costs to the defendant.
See 10 Michigan Law & Practice, Ejectment, § 1, pp 339-342.
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Bronson, J.
Defendant, Frank Doemer, Jr., was convicted of unlawful possession of marijuana (MCLA § 335.153 [Stat Ann 1957 Rev § 18.1123]). After a three-day jury trial in Macomb County Circuit Court, defendant was sentenced to 1-1/2 to 10 years in prison. He appeals as of right.
The relevant facts are these. Leroy Baker, a Fraser police officer, on information from a reliable informant that a shipment of narcotics was coming in a Volkswagen from California to defendant’s parent’s home, engaged in a surveillance of that home on October 15, 1969, with members of the Clinton Township Police Department. The Volkswagen never arrived, but the informant notified Baker that certain individuals would take a U-Haul truck to Ypsilanti to pick up the narcotics. At approximately 8 a. m., two unidentified individuals were seen leaving defendant’s home. They were later seen picking up a U-Haul truck at a gas station on 15 Mile Road and Garfield in Macomb County and were followed back to defendant’s home. Shortly thereafter, two individuals, whether they were the same individuals who had picked up the U-Haul is not clear, left defendant’s home in the U-Haul. The police followed them to Ypsilanti where they entered an apartment building. Approximately 45 minutes later, three persons, one carrying a package, left the apartment and returned to Clinton Township in the U-Haul. The truck was stopped at 15 Mile and Garfield. The arresting officers, upon observing what appeared to them to be marijuana in a passenger’s lap, arrested all three passengers for possession. Defendant Doemer was driving the truck. No narcotics were found on his person.
At trial, the judge, without objection, instructed the jury on possession and on aiding and abetting. Defendant now contends that instructing on the latter was erroneous as a matter of law. If he is right, there is a clear injustice on the record requiring reversal.
Doemer argues that he must have been convicted of aiding and abetting since he had no physical possession of narcotics. He contends this is not possible because there is no crime of aiding and abetting possession.
Defendant’s contention that his lack of physical possession precludes his conviction for possession has no bearing on the result we reach. Assuming he is correct, reversal is not required if his aiding and abetting argument fails. That argument is the crux of his case.
There are no Michigan cases discussing the precise issue raised. There is California precedent, however, that one can aid and abet possession. People v. Henderson (1953), 121 Cal App 2d 816 (264 P2d 225); People v. Solo (1970), 8 Cal App 3d 201 (86 Cal Rptr 829); People v. Francis (1969), 71 Cal 2d 66 (75 Cal Rptr 199, 450 P2d 591). Defend ant’s argument that possession is a crime of status does not convince us that California is wrong. Contrary to defendant’s contention, possession is an act. Cf. Robinson v. California (1962), 370 US 660 (82 S Ct 1417, 8 L Ed 2d 758).
To aid and abet possession, one must be more than merely present. There must be criminal intent and direct or indirect acts or encouragement which aid in the perpetration of the crime. People v. Francis, supra. The act or encouragement must be done knowingly with the intent to aid the possessor obtain or retain possession. People v. Henderson, supra, provides an example of an act found sufficient to sustain such a conviction. In that case, Henderson admitted to knowingly driving his codefendant to purchase heroin. The only distinction between Henderson and the instant case is that Doemer has admitted nothing as to his knowledge on the drive to Ypsilanti. There was evidence, from which the jury could infer such knowledge. Originally, the shipment was to have come to his home and he admits to knowing marijuana was present on the return trip.
Since no objection was raised below, clear injustice on the whole record must be present to warrant reversal. People v. Schram (1970), 23 Mich App 91. A review of the entire record, with particular attention paid to the jury instruction, reveals no such injustice.
Affirmed.
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Levin, J.
The defendant, Donald Lee Hutchinson, appeals his conviction of driving a motor vehicle under the influence of intoxicating liquor, charged in the information as a third offense.
The complaint charged the defendant with driving under the influence as a second offense, a misdemeanor punishable by imprisonment for not more than one year or a fine or both. At the preliminary examination it appeared that the defendant had been convicted of driving under the influence on two prior occasions witbin ten years. The prosecutor moved to amend the complaint to charge the offense as a third offense, a felony punishable by imprisonment for not less than one year nor more than five years or a fine or both. The motion was granted over the defendant’s objection, and the defendant was bound over on the third offense charge.
The defendant appeals claiming that the offense charged in the complaint could not be changed or increased at the preliminary examination. We affirm.
Before the punishment of a person charged and convicted of driving under the influence can be enlarged because of an earlier conviction of the same offense, the earlier conviction must be charged. See People v. Bosca (1970), 25 Mich App 455, 458.
A person charged with an offense not cognizable by a justice of the peace is entitled to an examination on the charge. He may not be tried for an offense different from the one for which he was examined or waived examination. As stated in People v. Jones (1872), 24 Mich 215, 218, the information may not charge “a distinct offense from that charged in the complaint, and upon which defendant was examined”.
Here the offense originally charged in the complaint and the offense charged in the information filed after the preliminary examination were essentially the same, not distinct. Because the defendant was charged in the complaint as a second offender he was made aware before the examination that his under-the-influence conviction record would.be an issue at the examination. At the examination the question of whether the defendant had been previously convicted of driving under the influence was a subject of inquiry. It developed that he had been convicted on more than one previous occasion — twice before within ten years.
The complaint does not control the after-proceedings; the, information is supposed to be framed on the facts .’(disclosed at the preliminary examination:
“The primary function of the complaint is to move the magistrate to determine whether a warrant shall issue, and the justification for issuance of the warrant need not appear in the complaint. Turner v. People (1876), 33 Mich 363. The complaint does not; ‘fix and control the after-proceedings.’ People v. Kahler (1892), 93 Mich 625, 627. See, also, People v. Pichette (1897), 111 Mich 461, 462. ‘The information is not predicated upon the complaint or the examination upon which the warrant issues, but it is presumed to have been framed with reference to the facts disclosed at the examination which succeeds the arrest.’ People v. Kahler, supra, 627.” People v. Norman (1968), 9 Mich App 647, 652.
In Yaner v. People (1876), 34 Mich 286, 288-290, the Supreme Court referred to the statute which then and now provides that at a preliminary examination it is the duty of the magistrate to examine the complainant and the other witnesses “in regard to the offense charged and in regard to any other matters connected with such charge which such magistrate may deem pertinent”. The Court observed that (pp 289, 290):
“if it should appear, either upon the whole examination, or at any time during the progress thereof, that a higher offense, either of the same or a different degree than that charged in the warrant, had been committed, it would then be the duty of the magistrate, without any further or other preliminary complaint or examination, to issue a new warrant charging such accused with the higher offense, and proceed thereon as in other cases.”
In this case when the prosecutor moved to amend the complaint to charge driving under the influence as a third offense the defendant did not claim surprise or move for a continuance of the examination. He did not seek a further examination; it was his claim, rather, that what was being done could not be done at all. We repeat that the examination focused, after due notice to the defendant that this would be a subject of inquiry, on his under-the-influence driving record.
Under the circumstances, we conclude that the magistrate acted properly in granting the motion to amend the complaint and in binding the defendant over on a charge of driving under the influence charged as a third offense and that the prosecutor properly filed an information charging commission of a third offense.
There is no suggestion that the charge was increased to penalize the defendant because he had pled not guilty when he was arraigned on the complaint charging the offense as a second offense and demanded an examination. We do not read North Carolina v. Pearce (1969), 395 US 711 (89 S Ct 2072, 23 L Ed 2d 656), where the defendant successfully appealed his conviction and was retried and again convicted and which limits a sentencing judge’s power to impose a more severe sentence upon reconviction, as requiring comparable standards at a preliminary stage of the proceedings when frequently the facts are not fully developed. The power to amend to correct inadvertence in charging is not so circumscribed.
Conviction affirmed.
All concurred.
MCLA § 257.625 (Stat Ann 1968 Rev § 9.2325).
“See. 625. (a) It shall be unlawful^and punishable as provided in paragraph (e) of this section for any person whether licensed or not who is an habitual user of narcotic drugs, barbital or any derivative of barbital, or any person who is under the influence of intoxicating liquor or narcotic drugs, barbital or any derivative of barbital, to drive any vehicle upon any highway or any other place open to the general public, including any area designated for the parking of motor vehicles, within this state. * * *
“(c) Any person who is convicted of a violation of paragraph (a) or (b) of this section shall be punished by imprisonment in the county jail or Detroit house of correction for not more than 90 days or by a fine of not less than $50.00 nor more than $100.00 or both such fine and imprisonment in the discretion of the court, together with costs of the prosecution.
“On a second conviction under this section or a local ordinance substantially corresponding thereto, he shall be guilty of a misdemeanor and punished by imprisonment for not more than 1 year and, in the discretion of the court, a fine of not more than $1,000.00.
“On a third or subsequent conviction within a period of 10 years under this section or a local ordinance substantially corresponding thereto, he shall be guilty of a felony.”
MOLA § 257.902 (Stat Ann 1968 Eev § 9.2602).
People v. Handley (1892), 93 Mich 46, 48; Stuart v. People (1879), 42 Mich 255, 259.
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Long, J.
In October, 1891, the husband of the administratrix, while driving his horses and wagon on a public highway where it crosses the defendant’s tracks, was struck by one of defendant’s passenger trains and killed. The accident occurred at 5:30 o’clock in the evening at the place known as “ Mt. Hope Crossing,” in the south boundary of the city of Lansing. This action is for damages.
The negligence alleged is:
1. Running the train at a high rate of speed, the crossing being a dangerous one, and the night dark and foggy.
2. Failing to ring the bell as required by the statute.
3. That the defendant had, in the construction of its road across this street, excavated the ground, which was originally level, to a depth of from 4 to 6 feet, leaving banks about five feet high on each side of its track at the crossing, and had not restored the street at such crossing to its former condition as nearly as it' might have done, but left it, where it crossed said railroad track, and for quite a distance west, cut down to a level with the railroad track, and that said cut was only about 20 feet wide, which rendered it difficult for a person with a team to turn around therein, and that it had not maintained a suitable and sufficient approach and crossing over such track, as required by law, which acts and omissions on the part of said company were, among other things, direct and moving causes of the accident.
4. That there were obstructions on the north side of this street, west of the railroad track, which interfered with the view of an approaching train from the north, to persons passing east on this street over such railroad track, for a distance of 3 or 4 rods west of the defendant's right'of way, which rendered it dangerous, and that the company had for a year or more maintained at such crossing an electric bell to warn those crossing its track of the approach of its trains; that the bell had usually sounded when the train was within 80 rods of said crossing, either way, so that it could be readily heard 40 rods from the crossing, which fact was well known to the deceased; that the bell did not ring upon the approach of the train that killed the deceased; that the company had negligently allowed the same to get out of repair, and consequently such negligence was one of the immediate causes of the accident.
There was evidence tending to show that the train was running at the rate of 25 miles an hour and upwards at the time of the accident, and that no bell was sounded upon approaching the crossing. There was also evidence tending to show that the cut was about 5 feet deep, and 21 feet wide at the bottom, extending westward quite a distance, and also that there was a clump of hushes north of the highway and west of the railroad track, which to some extent interfered with the view of trains coming from the north, to a person passing along the highway towards the east; also that an electric bell had 'for a year and more been maintained, to warn people of the approach of trains, and that such bell, when in proper condition, could be heard for 40 rods distant, when a train was within 80 rods of the crossing; that the deceased lived near this crossing, and was accustomed to pass there frequently; that upon the night in question the deceased was last seen approaching this crossing from the west, driving a span of horses attached to a lumber wagon in which he was riding. Defendant’s engineer testified that he had his head out of the window, looking right ahead; that he had not seen anything until he saw something that looked like a black cloud, and after that there was a crash, and he put on his air brakes and stopped. He says the headlight was shining, but did not shine on the object before it was struck. He also says, as do others, that the whistle was sounded. On cross-examination the witness further testified that—
“We run with our train under full control 400 feet before approaching a crossing. * * * It was a dark night. It may have been a little smoky. I don’t think it was forest fires; something more of a fog, — a little mist. It would make it difficult for a man to walk in the country. Might make it a little difficult for him to see.”
Some contention arose on the trial as to the exact position of this clump of bushes, and just how much it obstructed the view of the railroad track to the north, of one passing along the highway going east; and defendant also contended that the banks where the cut was made were not high enough to obstruct the view, in the least, of one riding in the Tobias wagon. It was conclusively shown that the embankments were no obstruction to the view of an approaching train. Upon this point, and the obstruction by the bushes, plaintiff’s witnesses, on cross-examination, testified substantially as follows: Witness McKin says:
.“I examined the crossing with particular reference to see whether or not one could see an approaching train from the time they got within the lines of the company’s right of way. I think it would be impossible for a man to look down the line without seeing an approaching train from a point 26 rods west of the railroad track. You can see an approaching train all. the way, except where the fence and bank and trees interfere, but after getting on the company’s right of way you can see an approaching train down to the signal post. At any point between 26 rods west of the railroad and the track, a man looking north could see a train anywhere from 20 to 30 rods north, except where the clump obscures the vision. After a person gets on the right of way, riding in a wagon, it is impossible for him to look north without seeing an approaching train. If he looked, he might see it. He could not help but see it. I mean at any point on the right of way; that is, at any point 35 feet west of the west track. I can see a foot or two before I get on the right of way. The clump of trees grows close to the railroad fence on the west side.”
Witness Kitson says:
“ The tiees and bushes are not on the embankment at that place. They are more or less all along as far down as you can see.- They would commence to obstruct the view of an approaching train five or six rods west of the track, and continue to obstruct the view until you get on the right of way.”
Witness Hurd was asked:
“How far west — how wide a space — would that clump of bushes obstruct the view of an approaching train?
“A. It might be some seven or eight rods from the track, as you go east, before you struck the track. You might see it plain there five or six rods away. You can see a part of a train, but you cannot see the whole train.”
Defendant’s witness Harris says he made a correct drawing from the measurement of the track, crossing, and surroundings; that the west line of the company’s right of way was 35 feet west of the west rail; that the clump of bushes mentioned was north of the highway fence; that to a person standing at a point 35 feet west of the west rail in the highway, looking north at the semaphore, the range of vision would be 10 feet east of -the clump of bushes; that the' semaphore is 1,347 feet north of the crossing; that a person standing in the highway 70 feet west of the west rail, looking north, — the range of vision being immediately east of the clump of bushes, — could see a point north on the railroad from the crossing 230 feet; that, to one back 105 feet, the bushes would obscure a very.small space, and when down 70 feet they would obstruct but a very small space; that one could see a portion of an approaching train all the time.
This is substantially all the testimony on that point.
At the close of the testimony, defendant asked the court to direct the verdict in its favor, which was refused. Plaintiff then asked the court to instruct the jury:
“ 1. If you find that the defendant company neglected to give the warning of the approach of the train at the crossing required by law, viz., by ringing the hell, that would constitute negligence on the part'of the defendant, and the plaintiff would be entitled to recover, unless you .should find that the deceased was guilty of contributory negligence in attempting to cross the track."
“ 6. The question as to the speed of the train, and the time that it would take to reach the crossing from where it first came into view, and the time that the deceased would take to reach the track after he came into a position in which the view of the train was cut off, and the manner in which he would have been liable to have approached such a track, are all questions of fact for your consideration, in reaching the conclusion as to whether deceased was guilty of contributory negligence or not."
“ 9. Under all the evidence in this case, it is only a question of fact for the jury to determine whether or not the deceased exercised reasonable care in avoiding the danger, and whether the deceased, in approaching the train, was negligent; and you have the right to consider all the testimony in relation to the condition of the crossing, the obstructions, the speed of the train, and such other facts, as shown by the evidence, as will throw light upon the question. And if, after considering these facts, under the instructions already given you, you are satisfied by a preponderance of the proof that the deceased came to his death in consequence of the negligence of the de fendant, while he was exercising ordinary care, then your verdict must be for the plaintiff for such damages, under the evidence and instructions of the court, as you believe plaintiff is entitled to recover.” .
These instructions were all given. The following request of plaintiff was refused:
“'It appears that the defendant, for a considerable time before the accident, maintained an electrical bell at this! crossing, to give warning of the approach of its trains, and if you find that the deceased, who had been in the habit of crossing this track at this place, knew of this signal, and if you shall find that on the night of the accident this electric bell did not sound its usual alarm on the approach of the train that killed the deceased, and that he did not at that time know of any fault in the condition of the bell, then this fact may be taken into consideration by you, together with all the other facts in the case, as bearing upon the question as to whether or not the deceased was free from contributory negligence.”
The court, in its general charge, instructed the jury:
“ The plaintiff has charged several things against the railroad company as negligence; yet, under the proofs, I instruct you that there is but one of these things which you can consider in determining whether the defendant was or was not negligent, and that is whether the bell on defendant’s engine was or was not rung. * * * Nor would all of these things, — the failure of the electric bell, the failure to restore the crossing, and the rate of speed,— taken together, under the circumstances of this case, be negligence, so as to fix a liability upon the defendant company, provided the bell upon the engine was constantly ringing while the train was passing over the 40 rods of road next northerly from the crossing.”
The court also charged that—
“The failure of the electrical bell to ring was not negligence on the part of the company, because such a bell is liable to get out of order, and people must take notice that it is liable to get out of order, and not place dependence upon it. The company do not guarantee that the bell will ring every time. It was not intended that the bell should take the place of a man’s ordinary caution, but that it should be a help added to such caution.”
Upon the question of not restoring the highway, the court said:
“ The fact that the company had not removed the’ embankment at the crossing, and had not restored the crossing as nearly as possible to its original character as it existed before the railroad went through, would not of itself be such negligence as would entitle the plaintiff to recover, because the facts of this case do not give that matter enough importance, as connected with the result, to have such effect.”
As to the rate of speed at which the train was moving, the court said that “would not of itself make the company responsible.” The court also charged:
“If you find that Mr. Tobias looked and listened carefully until he came where he could see up the track east of the trees, all without being made aware in any way that a train was approaching, and you find that the engine bell was not rung, but that if it had been rung he would probably have heard it, and was listening for it; that the absence of its warning had lulled him into a sense of security, — you may take that into consideration in determining whether, acting as a reasonably prudent man, he should have stopped his horses before the collision, because, if the railroad company did not ring its engine bell, it was negligent, and it can gain nothing by its own wrong, but must consent to measure this man’s conduct by the situation in which its negligence naturally and necessarily placed him. * * * In the absence of all proof by the way of circumstances and otherwise, it will be presumed that Mr. Tobias looked and listened, and acted as he ought. But if there is a fact or circumstance, or any combination of facts and circumstances, in the case, inconsistent with his looking and listening or his proper action, then there is proof that he did not look or listen properly.”
The court also charged the jury at considerable length as to the care which the deceased should have used in approaching the crossing, and ■ that if they found, under the circumstances, that he was guilty of contributory negligence, the plaintiff could not recover. The jury returned a verdict in favor of the defendant company.
1. Plaintiff’s counsel contend that it was the duty of the defendant company to have restored the highway to its original condition, as nearly as might be; and the argument is made that the object the Legislature had in requiring a railroad company to restore a street crossed by its tracks to its former state, as nearly as may be, was for the safety of the traveling public, and that railroad companies are bound to construct and maintain such crossings so as to make them reasonably safe. There can be no question but that such duty is imposed upon railroad companies under the statute, and, indeed, if the statute had not been passed, the common law would have applied; and the company, in cutting through the highway, would have been bound to construct and maintain the crossing in such condition as to make it reasonably safe. Maltby v. Railway Co., 52 Mich. 108; Thayer v. Railroad Co., 93 Id. 150.
The question whether it was the duty of the defendant company to cut these banks down the full width of the highway, we need not consider here. It is not like the case of Thayer v. Railroad Co., supra. There the roadbed was built up to a distance of 30 feet, leaving on the top or crest only a narrow drivéway, about 5 feet wide, and on both sides of which were deep ditches. The plaintiff was driving upon this narrow way; and the negligence charged was in maintaining such a narrow way, and in failing to blow the whistle at' the proper place, and in blowing it just as the plaintiff’s horse was upon this narrow way, thus frightening him and causing the injury. It was evident in that case that the narrowness of the way was the proximate cause of the injury. In the present case there is no evidence whatever that the narrowness of the way had anything to do with the injury. The last seen of the deceased alive was when within a few rods of the crossing. The engineer saw the team just before it was struck. It is not claimed that the deceased was attempting to turn around, and could not, by reason of the narrow way; but the evidence all points to the fact that he deliberately drove upon the crossing, either because he did not see or hear the train, or, seeing it, attempted to cross ahead of it, and miscalculated its speed. We think the court was not in error in charging, the jury that, though the highway may not have been restored to its original condition as nearly as might be, such fact had no bearing in the .case.
2. It is next contended that the court was in error in charging that the rate of speed at which the train was moving would not of itself make the company responsible. It was shown that this highway was. nearly as much traveled as any in the city of Lansing, which was shown to have a population of some 17,000. We think, however, that the court was correct in the instruction given. This was a regular passenger train, running on schedule time. No ordinance was shown or claimed, limiting the rate of speed of trains in the city. There is no general statute limiting the speed, and it is well known that trains are often driven at the rate of 40 or 50 miles an hour across country highways. The statute requires certain signals to be given on approaching such highways, and a failure to give them is held to be such negligence as. to make the company liable. But the running of this train at the rate claimed, under the circumstances shown by this record, cannot of itself be said to be negligence.
In Stern v. Railroad Co., 76 Mich. 597, it was said that SO miles an hour was not an unusual rate of speed for a passenger train past stations; and in Hagan v. Railroad Co., 86 Mich. 615, 624, it was said:
“It must be conceded that in operating a railroad it becomes necessary, at times, to make time between given points, and the running of a freight train at the rate of 40 miles an hour for this purpose is not in itself negligence.”
In Thayer v. Railroad Co., 93 Mich. 150, it was said:
“The averment as to the rate of speed of the train is not that the train was running at an unusual rate of speed, but that it was being run at a speed of 40 miles an hour, in a negligent and careless manner. While it is not necessarily negligent to run a train at the usual rate, or at 40 miles an hour, it is negligent to maintain the usual rate of speed without observing the usual precautions and danger signals to warn the public of its approach.”
But plaintiff’s counsel contend that Klanowski v. Railway Co., 57 Mich. 525, and Guggenheim v. Railway Co., 66 Id. 150, support the doctrine for which they contend. In the first-named case, what was said by Mr. Justice Sherwood about the running of the train at a great rate "of speed, and that whether or not proper care was made to appear in this particular, was a question of fact for the jury, was not concurred in by the remainder of the Court. Mr. Justice Campbell expressly dissented from this doctrine, in which dissension Chief Justice Cooley concurred, and Mr. Justice Champlin concurred only in the result arrived at in the general discussion of the case. In Guggenheim v. Railway Co., it appeared that the street was a public one in the city of Hillsdale, and at the crossing the view was obstructed by buildings coming up within a very few feet of the tracks. It was said:
“While there was at the time of the accident no statute limiting the speed of the train over this crossing, yet the speed of such train must nevertheless be consistent with the degree of care and prudence required in good railroad management; and such crossing must be approached and passed oyer with the care and prudence commensurate with the rate of speed attained, and the train managed and controlled with that degree of care and prudence required for the safety of the lives and property of the persons rightfully approaching and traveling over such crossing.”
No case within this State has gone to the extent of holding that the running of passenger trains at 25 miles per hour is of itself negligence. It is true that such facts might exist as to make the running at that rate of speed •dangerous and reckless, but such facts do not exist here. There was no obstruction to the view of the train by the embankment, and none by this clump of bushes, except at quite a distance back from the crossing; and even there •only a part of the train was obstructed from view, and only for a moment. The whole evidence points to the fact that ■one approaching could see this train, with the headlight burning, for over 1,300 feet before reaching the crossing.
With these facts appearing plainly upon .this record, it is evident that the deceased, if he had looked, might have .seen the train in time to avoid the accident, and the fact ■that he drove upon the track would be conclusive evidence that he did not look; and the court should have directed the verdict in favor of the defendant, but for the question of the maintenance of an electric bell there. The court was expressly asked to charge upon this point, by the plaintiff’s third request, that, if the deceased did not know ■of any fault in the condition of the bell, this fact might be taken into consideration, with other facts in the case, as bearing upon the questiop of deceased’s contributory negligence. This request should have been given. It cannot be said that the deceased would have no right to rely upon the ringing of this electric bell to warn him of the approach of the train. If the electric bell had rung, it would have given him warning. That he expected it to ring might make him less cautious in looking for the coming of a train. The case is somewhat similar in principle to Richmond v. Railway Co., 87 Mich. 374. In that case it was said substantially that it was almost absolutely certain, from plaintiff’s own showing, that he did not look south when within 30 feet of the tracks, and that whether he was negligent depended in a great measure upon whether or not he had a right to rely, under the circumstances, upon the absence of the flagman, and the lack of any signal of danger from him. The cases upon that question are collected, and upon the whole case it was held that the circumstances were such that it became a question for the jury whether the plaintiff was guilty of contributory negligence. So we think in this case that, under proper instructions from the court, that question should go to the jury, in connection with plaintiff’s third request, which should have been given.
The main questions raised by briefs of counsel have been fully discussed, so that upon a new trial the rights of the parties may be fairly submitted.
The judgment must be reversed, and a new trial ordered.
McGrath, C. J., Montgomery and Hooker, JJ., concurred with Long, J. | [
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Long, J.
This action was brought to recover a balance-claimed to be due upon a certain contract dated November 24, 1893. By the contract the plaintiff agreed to sell to-the defendant all the oak saw logs he might lumber off' of certain lands therein described, “for the sum of $10 per M. for same loaded on cars at Roscommon in good shape. All logs to be cut 12, 14, and 16 feet long, and as much as possible 14 feet long, and to be 12 inches and up at the small end. No rough, knotty, wormy, or top logs to be taken. All logs to be cut from good, sound, green, body timber, and not to take more than 10 logs to the-thousand. The above logs to be lumbered and loaded on ■cars on or before April 30, 1894. Logs to be scaled merchantable by Josiah Hoover when there is 100 M. or more -on skids.” The contract then provides for the time and manner of payment; and it is conceded that defendant has made payments upon the contract aggregating $1,125. The evidence shows that the plaintiff let the job of lumbering to one Charles Blanchard, and that very shortly after the contract was made the work of lumbering was begun. After the logs were cut and skidded, Mr. Hoover, the scaler mentioned in the contract, went to Roscommon and made a scale. About the middle of March following, the plaintiff began shipping the logs to Bay City. On the arrival •of the first train load, the defendant wired plaintiff:
“ Come down. Logs will have to be rescaled. About Rali dead and wormy timber. Cars not half loaded. Load heavier.”
Plaintiff did not respond to this message, but kept on shipping the logs, and on the next day defendant wired him again:
“Why don’t you come down? I cannot accept the dead and wormy logs.”
After all the logs were shipped, the plaintiff wired defendant, on March 22:
“ Will be in Bay City at 1 o’clock to-morrow.”
Before plaintiff reached Bay City all the logs had been unloaded, and the defendant had commenced sawing. Defendant says he commenced on the day plaintiff arrived; plaintiff says, two days before. Defendant then gave plaintiff to understand that he would not accept the woods scale made by Hoover, but no agreement was arrived at. Deiendant had Hoover make another scale, and the railroad •company had also made a scale. No money was paid on "the contract after the logs were received at Bay City. Before going north to make the scale, Hoover was notified, that he would find some non-contract logs there, of which-he was to make a separate scale. He made the scale with this in mind. On the trial the defendant contended that he was not bound by the scale made by Hoover. Hoover was called as a witness by plaintiff, and gave testimony which defendant contends shows that he did not use his judgment in getting at the correct amount, for the reason that the logs were so covered with snow and ice that he-could not see them to estimate the quantity and quality of' the timber. But it appears that in making the scale he separated the logs, and scaled the non-contract ones as well as the others. There is no doubt about the logs scaled at Roscommon being the same logs which Hoover' afterwards scaled at Bay City, but there is a great difference in the-two scales. Hoover attempts to account for it by saying-he could not see the logs by reason of the snow and ice-upon them. He measured one end of the logs, and Mr. Cox, who was also sworn as a witness in the case, measured the other end, and he gave, as he says, the correct measurement to Hoover, who got the contents. Mr. Hoover testified further as follows:
“ Q. Is the difference in the number of feet in the two-scales a difference in the judgment, one place and the other?
“A. No; I couldn't see the logs in the woods.
“ Q. Is it, or is it not, a fact that the difference in your scale is a difference simply in judgment of one place and the other?
“A. No; I told you I didn't see the logs in the woods. They were buried in the snow, and here they laid out so-I could see the culls. Lots of the logs there ain't a board in.
“ Q. Is the difference in the quantity of the logs in one-place and the other a difference in your judgment in the two places? *
“A. Certainly there is a difference in judgment.
“ Q. How otherwise can you explain the difference in the number of feet that you found in the logs here and the number of logs in the woods, except your difference in. judgment?
“A. In seeing the logs here, and in the woods I did not see them. I had no chance there to scale them.
“ Q. That is not an answer to the question.
“A.' I cannot answer it any other way. I saw the logs here, and there I did not. I scaled out all the defects I saw in the woods.
“ Q. Does that account for the difference in judgment?
“A. Yes; what I didn’t see in the woods.
“ Q. Then it is not a difference in figures?
“A. No.
“ Q. You think there was a mistake in your scale in the woods. Was that a mistake in computation or a mistake in judgment?
“A. Well, I don’t know. The mistake was made on account of the snow. I couldn’t see the logs. I supposed I scaled them all at that time. It was a mistake in the logs. I couldn’t see the logs. * * * * *
“ Q. Then how do you account for your difference in the scale at Bay City and Roscommon in any other way, except by a difference in judgment on the logs?
“A. I told you I couldn’t see the logs in Roscommon, and here I saw them. * * * , * * *
“ Q. What, if anything, prevented you from correctly estimating the amount of the logs except the snow on them?'
“A. That is all; I could not see the logs.”
Upon recross-examination he testified:
“It was not possible, in the condition in which I found those logs in the woods, for me, or any one else, to make a reasonably correct scale. When I started from Bay City to go up there to make the scale, I didn’t think there was over 6 inches of snow. I spoke to the young man John C. Ross, and he said there was no snow. If I had known about it, I would not have undertaken to scale them at all; but after getting up there I thought I would go ahead, and do the best I could, as it was quite an expense to get me in there. It is not a matter of judgment to tell a dead log from a green one. Anybody, whether he is a scaler or not, can tell that, if he can see the logs. * * * It is not a matter of judgment to tell a log that is 12 inches and upwards from a log that is less than 12 inches; that is simply a matter of measurement. The judgment of the scaler is only brought into play when he puts his rule upon a log that is defective in some way, and he makes, in his own mind, a certain deduction for the defect. That is the only way where the judgment comes in play; so that, as to determining whether logs are dead or green logs, it don’t require the judgment of the scaler; and in determining whether logs are 12 inches and upwards, or less than 12 inches, that is not a matter of judgment.”
The following shows the two scales, according to Hoover’s testimony:
hoover’s woods scale. hoover’s bay city scale.
No. Logs. No. Ft. No. Logs. No. Ft.
Green oak________1,858 215,000 Green oak..... — 1,063 100,710
Dry-............. 67 7,600 Dry and wormy-. 735 56,920
10 and 11 in....... 200 7,250 Under 12 in....... 231 7,290
Culls............. 71
Total.........2,120 229,850 Total.........2,100 164920
The court was requested by defendant to charge the jury:
“1. Under the contract between the plaintiff and the •defendant dated November 24, 1893, the plaintiff agreed to sell and deliver to the defendant, on cars at Roscommon, in good shajDe, the oak saw logs to be cut off of the land therein described, c all logs to be cut 12, 14, and 16 feet long, and as much as possible 14 feet long, and to be 12 inches and up at the small end; no rough, knotty, wormy, or top logs to be taken; all logs to be cut from good, sound, green, body timber, and not to take more than 10 logs to the thousand;’ and the plaintiff had no right to ship to the defendant logs cut from dead or wormy timber, nor to ship him logs that were less than 12 inches in diameter at the small end; and Mr. Hoover, the scaler mentioned in the contract, had no right to scale any wormy logs, or any logs that were not cut from good, sound, green, body timber; and if he did scale any such logs, that did not give the plaintiff the right to ship them to the defendant; and if the plaintiff shipped to the defendant wormy logs, or logs that were not cut from good, sound, green, body timber, mingling such logs with the logs that the defendant was entitled to under the contract, and if it was impracticable for the defendant to sort out and reject such wormy and dead logs, the defendant cannot be required to pay the contract price therefor, but he is only bound to pay what such defective logs were fairly worth.
“2. It was the duty of Mr. Hoover to scale the kind of logs mentioned in the contract, and for that purpose he was agent for both parties; but, if he went to scaling other logs not provided for in the contract, he was not the agent of either party in doing that, and any scale made by him of such non-contract logs would not bind either of the parties; and if you find that Mr. Hoover, when he scaled the logs in the woods, scaled, and included in his scale bill rendered to the parties to the contract, a large number of wormy logs, and of logs that were not cut from good, sound, green, body timber, and if such non-contract logs cannot be separated in his scale from the other logs scaled by him, then such scale is not binding upon the defendant, and you must determine, from all the evidence in this case, how many feet of contract logs there were delivered to the •defendant.”
“4. The defendant is liable for the amount of contract logs, at contract price of $10 per thousand feet, and for the dead and wormy logs at what they are fairly worth;' and in determining the amount to which the plaintiff may be entitled for tbe wormy logs, and logs that were not cut from good, sound, green, body timber, you should take into •consideration any excessive amount of freight which the defendant may have been required to pay upon the logs by reason of dead and wormy logs being mingled with contract logs, and shipped to him by the plaintiff upon the same cars to Bay City.
“5. It appearing, from the undisputed testimony, that the scale of the logs made in the woods was not made entirely by Hoover, but that he scaled at one end of the logs and the young man Cox the other, and it also appearing that Cox had never, except upon one occasion, some three or four years prior, done any scaling or assisted in making any scale, the woods scale so made is not binding upon the defendant.”
These requests were refused, and the court directed the jury as follows:
“Now, under the circumstances, I feel compelled to charge you that this scale made by Mr. Hoover in the woods is, to the extent of the contract logs, binding and final; that what he determined then was the final deter mination; and that no subsequent dissatisfaction of Mr.. Eoss would make any difference. There. is no fraud charged; there is no great mistake, except in the judgment or exercise of judgment. Now, an umpire like that can only exercise his judgment once, and when he has exercised it honestly, and according to his judgment at the time, that is the end of that. Therefore you will find a verdict for the plaintiff for the sum of $1,037.50. In addition to-that, the plaintiff claims that he furnished 67 dry logs.”
The jury were directed that plaintiff could recover only what these logs were worth, and that he had a right to-such value, as they had been received by defendant and sawed. At the conclusion of the above portion of the charge the court stated:
“The attorney for the defendant submits to me the following requests, all of which I refuse, except the third. The third is as follows:
‘“If you find that the scale of logs made in the woods by Mr. Hoover varies materially from what a reasonably true and correct scale of the logs under the contract would have been, and if that variation was caused by fraud on the part of Mr. Hoover, or of the person who assisted him in making the scale, or by gross mistake upon the part of Mr. Hoover or his assistant, then such scale-is not binding upon Mr. Ross, and you will have to determine what the quantity of contract logs actually delivered was, from all the evidence bearing upon that subject which has been given on the trial.’
“I give you that request.
“Mr. Stoddard: Now, if your honor please, that being different from what your honor intimated before the charge was commenced, I would like to argue that question to-the jury.
“ The Court: I have stated to the jury that I did not see any evidence of fraud or any evidence of mistake. Of course, they have heard the testimony the same as I have, but still I think, in the abstract, the request is very proper; but I don’t think it applies to the case. (Defendant’s counsel excepted.)
“Mr. Stoddard: I ask to argue that question to the jury under that request.
“ The Court: I don’t think you can have any argument now, at this late stage of the case.”
The jury returned a verdict for plaintiff of $1,128.24.
We may say here that counsel for defendant, before the charge was given, had announced that the only question he desired to address the jury upon was whether the logs shipped were the same logs scaled in the woods. We think there can be no question, under the evidence, of that fact. But it appears that before the court commenced the charge to the jury h® had substantially stated to counsel that he would hold the woods scale binding and conclusive upon the parties, and he did so charge. If, therefore, he was in error in this, we think he was also in error in not permitting counsel to argue the third request to the jury. The main question in the case, however, is whether the court was correct in directing the jury as he at first did direct them, — that the woods scale was conclusive.
It is contended by counsel for defendant that the case is governed by Malone v. Gates, 87 Mich. 332. In that ease, however, the question was one of measurement. The contract provided:
“No dry or dead logs shall be taken by second party which shall measure less than 7 inches in diameter at small end, inside the sap; and it is further agreed that all timber shall be scaled merchantable for lumber.”
On the trial of that case the court directed the jury, substantially, that the scaler had no right to scale any dry logs under 7 inches in diameter inside the sap, and, if he did so, it was the duty of plaintiffs to throw them out, as the defendant would be under no obligation to pay for them, the contract not applying to them; that the scaler was sent there to scale the kind of logs mentioned in the contract, and for that purpose he was the agent of both parties, and his scale, if honestly made, would bind the parties; but if he went to scaling something else, that was not provided for in the contract, he was not the agent for either party for doing that, and no scale that he might make of those logs would bind anybody. This charge was approved by this Court; but it will readily be seen that it had reference to dry logs under 7 inches. It did not require the exercise of judgment to determine this question. It could be ascertained by the mere measurement. In tho present case, however, Hoover was sent to make the scale for the very purpose of determining what were contract logs, and it required the exercise of judgment to determine that question, as, under the contract, no rough, knotty, wormy, or top logs were to be taken, and all logs were to be cut from good, sound, green, body timber. It was for Hoover to determine whether a log was rough, knotty, or wormy, and whether it was sound, green, body timber. It was not a matter of measurement, but an exercise of judgment, in determining whether each log came within the terms of the agreement. There were no other means agreed upon to determine these questions than Hoover’s judgment; and, as was said in Malone v. Gates, supra: “ His scale, if free from fraud or gross mistake, — a mistake not depending upon the judgment of the scaler, — would be binding upon both parties.” It was said further, in that case, and the language may well be applied to the present one:
“ If its honesty or correctness was subsequently attacked, and any testimony introduced tending to show that it was dishonestly or unfairly made, or that there was gross mistake in it, the burden of proof would then be on the plaintiffs to establish its correctness. By gross mistake we mean a mistake which is clearly shown to have left out some of the logs, or increased the scale by a mistake in the tally or in the addition of the amounts on the tally-sheets, or something of that kind, and not an honest error of judgment in the scaler; for it is well understood and established that, in estimating the merchantable lumber in a given log, the judgment of scalers varies more or less, and that the scale cannot be made so accurate that all scalers will agree upon it.”
In Savercool v. Farwell, 17 Mich. 308, 321, it was said:
“It was insisted by the defendant below that the contracts did not make the inspection of the lumber conclusivé upon the parties, and he offered evidence tending to show that some of the lumber rejected by the inspector was such as came within the description specified in the contracts. We think the court was right in excluding the evidence. If the inspection was not to be conclusive, we are at loss to perceive how it could have any intelligible effect under the contract.”
In Ortman v. Green, 26 Mich. 209, 215, it was said:
“The scaling involves two processes, — one of measurement and computation by figures, and one of judgment, depending on knowledge and experience. * * * If Ortman, with adequate knowledge of Waders competency as a scaler of logs, deliberately agreed to be satisfied with his scale made on the bank, or if Wade was in fact an honest and competent scaler, no complaint could be made of any mere error of judgment not indicating that there had been any blunder in figures or measurement.”
It is true that in the present case no claim is made by the defendant that Hoover-was a dishonest scaler, or that he in any way attempted to make an unfair scale in the interests of either party; but it is claimed that he made no scale at all, and could make none, under the conditions existing. The logs lay only one deep on the skidways, and were covered with snow from two to two and one-half feet deep. The ends were covered with ice. The snow was not removed. The contract contemplated that the logs should be scaled by Hoover when they were in such condition that a fair scale could be made, and he could exercise honest and fair judgment. The contract was that they were to be scaled merchantable. If his testimony was true, this could not be done. It appears that the scale made by the railroad company as the basis for its charge for freight was 55,000 feet less than the scale made by Hoover in the woods. The case differs materially in these respects from the cases above cited. The rule laid down in those cases is that when there has been an exercise of judgment, and no fraud- is shown and no mistake of figures, the scale must stand; but here there was no exercise of judgment, if the testimony of Hoover be true. We think the question was one that should have been left to the jury to determine, whether the scale in the woods was such as the one provided for in the contract; and, if they found that it was not, then they should resort to other means and other measurements to determine the amount. The -court was therefore in error in stating to the jury that the woods scale must govern. The defendant’s first and second requests to charge should have been given. As to the non-contract logs, the jury should determine their reasonable market value.
The judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Grant, J.
This case is now before us for the third time. It was commenced February 7, 1891. The first jury disagreed. The second jury found a verdict for the respondents of $96,143. This verdict was set aside by the circuit court in which the proceeding was tried. The respondents applied to this Court for the writ of mandamus to set aside this order. 89 Mich. 209. The case was after-wards brought to this Court by appeal, and is reported in 92 Mich. 33. After that decision the case was again tried before a jury, resulting in a verdict for Absalom Backus, Jr., for $15,000, and for A. Backus, Jr., & Sons for $48,000. For a full statement of the case, reference is had to the former decisions. The case is now brought before us on a writ of certiorari, and substantially the same questions are involved and argued as are stated in the opinion in 92 Mich. No motion was made for a rehearing of that decision. The case was remanded for a new trial, under the rulings then made. The respondents will not be heard upon the questions then decided, and we shall not argue them. By entering upon a new trial without a motion for a rehearing, both parties adopted that decision as the law of the case, and conducted the trial under it. All these questions are therefore res judicata, and not now open for review. That case was very ably and fully argued by counsel, and received the most careful consideration by the Court, of which four of the present mem, bers were then members. A re-examination shows no reason for doubting the soundness of the conclusions then reached.
We will now proceed to determin'd some questions which were not fully disposed of on the former hearing.
1. Complaint is made because the circuit judge presided at the trial, ruled upon questions of evidence, and charged the jury. No errors are assigned upon his rulings in either the admission or rejection of evidence. The precise complaint seems to be that he presided at all. The petition was presented to the circuit court for the county of Wayne, and all the subsequent proceedings were had in that court. The statute expressly provides that the circuit judge may attend the jury “ to decide questions of law and administer oaths to witnesses.” How. Stat. § 3466. Against this power there is no constitutional inhibition. The same course pursued upon this proceeding was also pursued in the case of Toledo, Ann Arbor & Grand Trunk Ry. Co. v. Dunlap, 47 Mich. 456, and the Court refused to set aside the award, even though the charge of the judge was “ ambiguous and open to criticism.” Hnder the' rule of that case, this award cannot be disturbed, unless some ruling or instruction of the judge is clearly erroneous, and leads to the plain conclusion that the jury were thereby prejudiced against the respondents. The fact that no errors are assigned upon his rulings upon the testimony removes that question from discussion. The judge, in both his rulings and his charge, was very careful not to encroach upon the functions of the jury. The charge was so clear, so appropriate to an important litigation (which had been conducted with great ability and vigor on both sides), and so carefully guarded the rights of both petitioner and respondents, that we here give it in full:
“ I invite your cool, calm, careful, and conscientious considera tion to the matters about to be submitted to you. The case is one of more than ordinary interest. The importance to the petitioner and respondents, the interests involved, the eminence and ability of learned counsel engaged, the wisdom and legal learning shown, the more than ordinary interest exhibited, the far more than ordinary eloquence displayed, and to which you have been unwearied listeners, the great earnestness in the presentation and contest made, all imperiously demand that you seek well and faithfully to perform the further duty which now devolves upon you, and bring to bear in the matters about to be submitted to you a cool and unbiased judgment and a careful consideration of the facts as you may find them, supported by the evidence produced, with a firm resolve to do your duty — your whole duty — to all the parties, without fear or favor, and without regard for the opinions of others as to conclusions honestly reached. The matter has assumed that shape, to be, as I have said, one of more than ordinary interest. Its final determination rests largely, if not entirely, with you. Your responsibility must not be underestimated. The question before you is (as I will more fully explain hereafter), what compensation are the respondents entitled to, as the owners of certain property, by reason of the construction of the superstructure in and along River street? Opportunity has been given you to fully examine the situation and condition of respondents’ property, as well as the superstructure of the petitioner. Such view and such examinations as have been made by you, together with the evidence admitted during the hearing, as well as all the arguments made, based upon [and supported by the evidence admitted, constitute collectively the basis upon which your conclusions should rest. Your award should be the result of a careful, thoughtful, and conscientious consideration of all these matters, remembering that what you have before you upon which to base your award is the knowledge you obtained by viewing the premises, the evidence, and all the evidence, admitted in the case, and the arguments made, in so far as you find such arguments supported by the evidence as you may find it. The evidence and the particular weight to be given to the testimony of any witness, or whether such testimony should be disregarded, are matters upon which I cannot in any way enlighten you. This is a matter belonging solely to the jury, and no judge is or should be permitted to enter upon, explain, elaborate upon, or express, by intimation or otherwise, any opinion to a jury upon this peculiarly absolute province of the jury, in a controversy of this nature. I will, however, add that you should not suppose the existence of facts not supported by your view or ■observation of the premises, or the evidence admitted in the case, unless it be in instances where common experience and frequent observation show a fact fairly inferable, though not fully estab lished by the view of the premises or by the testimony in the case. But the former must be established by evidence before you; you should infer or presume the second. What you may infer as-a fact must be a conclusion logically reached from facts established by evidence and resting in common experience. Thus far I have dealt in the broadest generalities, but I may say that, keeping these matters before you, your duty will be well done; failing, you are likely to be led into error which may terminate in rank injustice to either party.
“ The power of eminent domain, or, in other words, the power to take private property for public uses, is in the State. All property is subject to this power. It is a power recognized under the Constitution and law of the land. It is a power delegated by the people to and vested in the Legislature, subject to certain constitutional limitations, and can only be exercised by virtue of a legislative enactment given in express terms or by necessary implication. The power of the Legislature was, by the Constitution of 1850 of this State, limited and restricted in this: By article 18, § 2, it is provided that, ‘ when private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of 12 freeholders residing in the vicinity of such property,’ etc. Thus, you will observe that the questions of necessity and compensation are for the jury, and are not in any way subject to legislative interference; and, while the manner of procedure may be and is prescribed by statute, still any statute upon the subject which fails to observe and provide for every constitutional safeguard would be inoperative and void.
“ That the petitioner, under the statute under which it is incorporated, is vested with the exercise of this power of eminent domain, is not and cannot be questioned. Certain proceedings have heretofore been had in this matter, and I call attention to-them only for the purpose of stating to you that the question of the necessity for the taking — and which, as I have already stated, is one of the questions to be determined under the provision of the Constitution — is settled. That question — viz., necessity — has been determined, and with that you have nothing to do. That has passed out of the case, and is not before you. The question, and the only question, before you for your determination, is that of compensation, and of compensation only. Your duty, and your only duty, is to ascertain and determine what compensation or damages ought justly to be paid by the Fort ¿Street Depot Company to the respondents for the real estate, property, franchises, easements, and privileges described in the petition, viz,: (1) The amount to be allowed to Absalom Backus, Jr., as the owner of the fee of the land described; (2) the amount to be allowed to A.. Backus, Jr., & Sons, a corporation, as tenants in possession of such lands. Upon this question — viz., compensation or damages — what I have to say must necessarily be in a broad and the most general way. This is a question for you, and, from the very nature of a proceeding of this character, you are vested with large powers and great discretion. These powers and this discretion should not be exercised arbitrarily, nor without proper regard for substantial justice. You should bear in mind that, the greater the power, the more jealous is the law of its careful exercise, and the greater is the responsibility of the persons vested therewith. You should exercise a cool, careful, intelligent, and unbiased judgment. The compensation or damages must be neither inadequate nor excessive, and your award must not furnish a just inference of the existence of undue influence, partiality, bias, and prejudice, or unfaithfulness in the discharge of the duties imposed upon you. You must, however, remember that the respondents’ property is taken, or its enjoyment interfered with, under the so-called ‘ power of eminent domain,’ — a power somewhat and necessarily arbitrary in its character; and that, where this is done, the party whose property is taken, or whose enjoyment or use of the property is interfered with, is entitled to full compensation for the injury inflicted. While the allowance to be made should be liberal, still it must not be unreasonably exorbitant or grossly excessive. It should be a fair and liberal allowance and full and adequate compensation for the damages inflicted. You should not allow too little, nor should you allow too much. Your award should be based upon that which is real and what is substantial, and not upon what is either fictitious or speculative. You should look at the conditions of things as they exist. Under the Constitution and laws, the right to take another’s property for public uses — the power to exercise the right of eminent domain — is a part of the law of the land; but, when this power is exercised, it can only be done by giving the party whose property is taken, or whose use and enjoyment of such property is interfered with, full and adequate compensation, not excessive or exorbitant, but just compensation.
‘ ‘ I shall not call attention to any particular part of the testimony in the case. The responsibility of its application, and the weight to be given it, rests with you; always regarding that which is real and substantial, and disregarding that which is fictitious and speculative; treating conditions as they have been shown and as they are, without speculating as to what might possibly happen or occur; taking conditions as you find them, and the natural and probable consequences following such conditions.
“I do not want to leave this case without again impressing upon your minds your great responsibility. You want to and must do that which is just and right by the petitioner, that which is just and right by the respondents. You have before you such knowledge as you obtained by viewing the premises, the evidence admitted in the case, the arguments of counsel, and which, as I have said, you may consider in so far as supported by the evidence, and also the little that I have had to say to you. These matters are to be your guide absolutely and solely in the determination of the question involved. Let me impress upon you that, in a court of justice, friendship ceases. We know no friends; we know no enemies; we do no favors. Here we are actuated by reason only, in its most cool, calculating, deliberate, and unsympathetic spirit. ‘ Favor,’ ‘ offend,’ ‘ displease,’ are words which neither in thought nor spirit have meaning here. To do what is just and right is and should be our sole and absolute object. In ■the settling and determination of rights, in the administration of the law, acquaintances, associations, and friendships are not in any way factors. Purity and honest intention, the careful exercise of honest judgment, with a firm resolve to do exact justice, are the only virtues. These principles are predominant, and the •indomitable spirit to do right is the only incentive which actuates an honest mind and an honest man.
“ Gentlemen, the matter is now in your hands. Discharge your ■duty faithfully and honestly. I invoke in you the spirit so beautifully, though figuratively, exemplified in the Goddess of Justice, who, blindfolded, weighs in the scale every human action, and fearlessly determines the right, without passion, without prejudice, and regardless of and uninfluenced by wealth, position, or any thought and sentiment not just and pure.”
This charge correctly embodies the law upon the subject. There is nothing in it which could have any other tendency than to direct and aid the jury to a correct result. It in no particular invaded the province of the jury, and left to their consideration every legitimate element of damage. The arguments of the learned and able counsel on both sides, which extended over two days, are found in full in the record. The reading of them discloses the fact that the judge did not restrict their arguments in the least; that they were not interrupted except by •opposing counsel; and that every proper basis of damages was fully presented. Under these circumstances, we cannot concur in the statement of counsel that “the presiding judge made himself a controlling and constraining member of the constitutional tribunal, and thus rendered the proceedings void.” In these proceedings it is important that the jury should be confined to a consideration of those matters which have a legitimate bearing upon the questions confided to them for determination. It is of little consequence what agency under the statute has secured the result, — whether it be the judge, or commissioners, or counsel, or the jury themselves. When courts can say that the proceedings have been conducted fairly and honestly, they must confirm the award. It is proper here to note that no requests to charge were presented on behalf of the respondents.
2. The amount of the first award was paid to the respondents pending the appeal to this Court. Upon the •second trial the award was diminished, and judgment entered for the petitioner for the difference between the two ■awards. The statute provides for the payment of this sum by the respondents to the petitioner. We think judgment 'for this amount was properly entered. As already stated, this proceeding is in the circuit court, and the statute ■clearly contemplates the entry of judgment and the issue of execution to enforce the finding of the jury. The ■statute expressly provides for the entry of judgment. How. Stat. § 3468. A general statute also provides for issuing -execution upon any judgment rendered in any court of ■record. How. Stat. § 7664. The case of Derby v. Circuit Judge, 60 Mich. 1, does not apply to this case. The railroad company in that case had abandoned the proceedings •by refusing to pay the award, and consequently acquired no rights in the land. No execution could therefore issue ■either for the award or costs, both of which were held under the statute to be placed on the same footing.
3. The costs of the second, trial were allowed by the court to the petitioner. The validity of this allowance depends upon the construction to be given to the statute. That part of the statute relative to costs of the second trial reads as follows:
“If the amount of the compensation to be allowed is increased by the second report, the difference shall be a lien on the land appraised, and shall be paid by the company to the parties entitled to the same, or shall be deposited as the court shall direct, and in such case all costs of the appeal shall be paid by the company; but if the amount is diminished, the difference shall b'e refunded to the company by the party to whom the same may have been paid, and judgments therefor and for all costs of the appeal shall be rendered against the party so appealing.”
The costs of the first trial must be paid by the petitioner, and this it did. Had the award been increased, it would have been compelled to pay the costs of the second trial. We think the plain intent was to give costs to the successful party. Upon the appeal of the respondents and the increase of the award, would it be contended that they should pay the costs of securing a victory? If the literal language were followed, judgment for the difference, as well as for the costs, should be against the appealing party; but it is too clear to require argument that the judgment is to be against the respondents for the difference.
4. A motion was made to dismiss the writ of certiorari, on the ground that the second award is final under the statute, and that this provision cannot be evaded by invoking the use of this writ. The statute provides that “ the second report shall be final and conclusive upon all paz-ties interested.” We have chosen to dispose of the questions not adjudicated upon the former hearing on account of the importance of the case. It thus becomes unnecessary to decide the important question raised by the motion, and we pass no opinion upon it.
The award must be affirmed, with costs to the petitioner, the Fort Street Union Depot Company.
The other Justices concurred. | [
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] |
Per Curiam.
Application is made for a writ of certiorari to review the determination of the circuit court for the county of Wayne upon an application made to that court to compel respondent to rescind its action in placing the name of Joseph R. McLaughlin upon the official ballot as the nominee of the Republican party in the Third senatorial district for State Senator, and to place the name of Robert Y. Ogg upon said ballot instead thereof.
The district is composed of the Fourth, Sixth, Eighth, and Tenth wards of the city of Detroit. Each of said wards was entitled to three delegates. The convention was called to order by Robert Barrie, chairman of the senatorial committee'of that district. Several ineffectual attempts were made to elect a temporary chairman of the convention, the result of each ballot being six votes for Charles F. Beck, and an equal number for George Beck. Pending these ballotings, objection was made to counting the vote of one of the delegates who claimed the right to vote upon a proxy. The chairman ruled that the gentleman holding the proxy was in the convention; that he had examined the proxy; that the same was regular on its face; and that the holder was entitled to a vote until such time as the convention determined otherwise. After other ballots had been had, a delegate objected to the vote of one Murphy, on the ground that the vote at the caucus in the ward which Murphy claimed to represent was a tie, and thereupon the matter was determined between the contestants by lot as follows: A bystander drew from his pocket a handful of coins, and the candidates made their choice of odd or even, and a counting of the coins resulted in a victory for Murphy., There is no dispute as to the 'fact of the selection of Murphy in the manner described. The question was discussed at length, and finally the chair announced that, as the convention was at a deadlock, he should appoint a committee on credentials, which was done. On motion a recess was then taken for 15 minutes. At this juncture six of the delegates, including Murphy, left the hall, organized a separate convention, and nominated Robert Y. Ogg. After recess the first-named convention reassembled, and the committee on credentials reported eleven delegates as entitled to seats, and that Murphy was not entitled to sit. The roll was then called, and six of the delegates so reported responded. A temporary chairman and secretary were then elected, who were afterwards made permanent officers, and J. R. McLaughlin was nominated.
It clearly appears that Robert Barrie was the chairman of the Republican senatorial committee of the Third senatorial district, and that the convention presided over by that gentleman was the regularly called convention. An attempt was made to elect a temporary chairman, and a number of ballots were had, resulting in a tie vote. • Pending the balloting, questions were raised as to whether two •of those present and voting were entitled to vote. Under these circumstances, the determination of the dispute became important, and it was entirely proper to refer its solution to a committee appointed for the purpose. We must assume that the reference was made in good faith.
The petition sets forth that—
“Delegate Dayton Parker was absent from the State of Michigan, and in Montana, at the time said caucus at which he was elected was held, and that the said proxy held by Philip T. Van Zile was irregular and void.”
This allegation is wholly insufficient upon which to base .a finding that the committee on credentials erred in determining that Philip T. Yan Zile was entitled to a seat in the convention.
The determination that Robert Murphy was not entitled to a seat is fully sustained by authority. In the case of .a tie vote there is no election, and, in the absence of .statutory authority, neither election officers nor candidates have the power to determine the result by lot. Paine, Elect. § 576; Hammock v. Barnes, 4 Bush, 390; State v. Adams, 2 Stew. (Ala.) 231.
It follows, therefore, that the convention at which J. R. McLaughlin was nominated was regularly called, and that ■after the retirement of the supporters of Mr. Ogg a majority of the delegates elect remained, constituting a valid convention.
The writ must therefore be denied. | [
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] |
Hooker, J.
Eay and Hester made a written agreement whereby the latter was given the right to cut certain timber on the lands of the former. On December 19, 1882, Nester assigned.his interest in this agreement to Turner, who promised to pay to Nester one-third of the profits, and out of Turner’s share of the profits he was to pay Nester the sum of $5,000. On August 11, 1883, Nester sold and assigned his interest in the Turner agreement to Prudden, the plaintiff, for the sum of $6,000, representing that the $5,000, which was to be paid by Turner, was a debt due him from Turner, and not dependent upon the profits derived from the contract mentioned. Turner denied this liability, and defeated Prudden in an action brought by the latter upon this claim. Thereupon Prudden brought an action against Nester, but was defeated, a verdict being directed for the defendant. Plaintiff appealed.
To understand the case it becomes necessary to refer to the agreement which Nester gave to the plaintiff. As set forth in the declaration, it reads as follows:
“Lansing, Mich., August 11, 1883.
“This memoranda witnesseth: That whereas, on the 19th day of December, 1882, Mr. James M. Turner, of Lansing, Mich., was justly indebted to me to the amount of $5,000, but as an accommodation to said Turner I agreed to wait until a sale , of a tract of pine timber, known as the f McGraw Tract.’ My interest in said tract and the indebtedness of said Turner to me are both men.tioned in a certain agreement from said Turner to me, dated December 19, 1882. The $5,000 due me from said Turner is mentioned in said agreement in the following terms:
“ And I [tlie said James M. Turner] am to further pay, out of my share of said profits, to Timothy Nester, the sum of $5,000.’
“The payment, however, of the said $5,000, was not dependent upon the amount of said Turner’s profits. I anticipate that the $5,000 will be-at once paid over to me, or my assigns, on sale of pine timber mentioned; but, should it not, I can and will, should I be called on to protect said payment, show good cause for its payment. I do not, however, guarantee its payment.
“Timothy Nester.”
The action was based upon the claim that although notified of the approaching trial between the plaintiff and Turner, and requested by the plaintiff to be present, and establish the $5,000 claim against Turner, defendant, Nester, neglected to appear, or in any other way aid plaintiff is establishing such demand.
Upon the trial, plaintiff produced a writing, signed by the defendant, which writing was in all respects like the one declared upon, except that it lacked the words, “ I do not, however, guarantee its payment.” The plaintiff testified that these words were a part of the paper produced, but that he had cut them from it before showing the writing to Turner, because he did not want him to know that Nester had refused to guarantee the debt. The paper showed the removal by cutting off a part of the ruled line preceding the signature of Nester. He further testified that the defendant had a duplicate of the agreement. The defendant testified that more than the words mentioned were cut from the contract, but said that he did not know what the rest was. He said: “ There was enough there to satisfy me and him at the time that there was no obligation on my part.” It was contended by coun sel for the defendant that this was such an alteration as to render the contract void. It is well settled that, where the alteration is not such as to change the effect of the instrument, it is an immaterial alteration, and does not preclude recovery. Miller v. Finley, 26 Mich. 249; Gano v. Heath, 36 Id. 441; Leonard v. Phillips, 39 Id. 182; Goodenow v. Curtis, 33 Id. 505; Weaver v. Bromley, 65 Id. 213; First National Bank v. Carson, 60 Id. 432. The language, “ I do not, however, guarantee its payment,” which was the portion admitted to have been removed, did not relieve the defendant from any obligation deducible from the writing, as he nowhere undertakes to guarantee payment, but only to “ show good cause for its payment.” It was, therefore, an immaterial alteration.
The further claim is made that the writing is void for uncertainty. We think that a fair construction of the agreement is that, if called upon, the defendant would •show the $5,000 debt to be a valid and subsisting legal obligation against Mr. Turner.
The case should have gone to the jury.
The judgment will be reversed, and a new trial ordered.
Long, Grant, and Montgomery, JJ., concurred. McGrath, 0. J., did not sit. | [
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McGrath, 0. J.
Defendant, an attorney, was in February, 1890, employed by plaintiff in certain litigation then pending between herself and her husband, relating to a divorce, and also respecting a conveyance of land which was alleged to have been made in fraud of her rights. In June, 1890, he received from her $170, for which he gave her a receipt, as follows:
“This is to show that on the 9th day of June, 1890, I received from Polly Pierce $170, to be returned to her ■on demand.
“M. W. Underwood.”
.In December, 1891, plaintiff brought trover for the •aforesaid moneys, claiming a conversion of the fund. Defendant pleaded the general issue, and gave notice of set-off, and, upon the trial, claimed the right to show title in the husband.
It seems that in September, 1888, plaintiff's husband had secreted in the house in which the husband and wife lived some $1,200 or $1,400, to which plaintiff had access, and from which she had from time to time taken small sums, as needed. In September, aforesaid, she took from such place of deposit $1,000, and made a general deposit of the same in a bank in her own name. She and her husband had considerable controversy over the matter, but finally, according to plaintiff’s testimony, she turned over to her husband $600 of the amount, and her husband agreed that she could retain the balance. The husband admits the payment back of the $600, but denies that he agreed that she could keep the balance; and the defendant testified that the husband had stated to him that he (the husband) claimed that the money in defendant’s hands belonged to the husband. It is not claimed that the money placed in defendant’s keeping was a part of the identical money taken from the husband by plaintiff, but it is conceded that the money received by defendant was drawn from the bank in which plaintiff had made the deposit At the time that defendant received the money, he knew all the facts respecting it, and that she claimed the right and title to it by virtue of her husband’s consent. He induced her to part with the possession of it, promising to return it to her, and he cannot now be heard to say that it was not her money.
The only other question is whether defendant can be allowed to set off his claim for services, or show the extent of such claim in reduction of plaintiff’s damages. We think he can. The money in question came into his hands in the course of his employment. That employment continued for one year, during which time she made no-demand for the money. It was not until after the litigation had been disposed of that she applied for the money. In the'meantime he had expended, in the course of the litigation, various sums in her behalf, and had performed professional services for her without demand for further payments. It is well settled that an attorney has a lien upon the money of his client, in his possession, to secure payment for his professional services, not only in the suit to which it pertains, bnt in other suits. Robinson v. Hawes, 56 Mich. 135. That was an action of trover, and it was there held that the recovery was subject to the lien. In Rall v. Cook, 77 Mich. 681, it was held that a mortgagee who obtained a bill of sale of the mortgaged property by fraud might, in an action of trover brought by the mortgagor, show the extent of his mortgage lien in reduction of damages; citing Brink v. Freoff, 40 Mich. 610, 44 Id. 69; Daggett v. McClintock, 56 Id. 51.
The action of trover has been termed an “ equitable action.” As is said in Rall v. Cook, the damages awarded in such action should only be such as the party is entitled to under .the circumstances of the case. If plaintiff is allowed to recover the full amount claimed, defendant may immediately sue her, and recover as damages the amount of his fees and expenditures. There is no valid reason why the whole matter may not he disposed of in the first suit, and circuity of action be thereby avoided.
The judgment is reversed, and a new trial granted.
The other Justices concurred. | [
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Montgomery, J.
This is an action to recover damages-for an alleged breach of contract. Plaintiff was the owner of an excavator or shovel operated by steam power, and the evidence in his behalf shows that defendant contracted, to pay him eight cents per cubic yard for as much gravel as he should load aboard cars to be furnished by defendant during the season of 1887, and that defendant agreed to furnish 100 cars per day to be loaded. The testimony shows that plaintiff has received pay for loading the dirt actually hauled, so that the only questions involved are-those relating to the alleged damages which plaintiff claims-to have sustained by reason of the non-performance of its-contract by defendant to furnish 100 cars per day, and the questions arising under defendant’s notice of recoupment, it having been set out by such pleading that defendant was delayed -in moving the gravel trains by reason of plaintiff’s default in not maintaining the excavator in repair, and that on account thereof the locomotives, cars,, and employés of defendant were obliged to, and did in fact, remain idle, and suffer various interruptions, in all causing damages to a considerable sum.
1. The plaintiff’s declaration alleged defendant’s undertaking to be to furnish 100 cars per day. The proof sustained this, and also showed that it was agreed that- it should furnish 100 or more flat cars. After these proofs had been received without objection, the defendant moved to strike out the testimony relating to flat cars, on the ground that it was not covered by the declaration. This motion was denied, on the ground that it came too late, and also on the ground that the declaration was sufficient to admit of proof of the kind of cars usually employed in that kind of business. If we treat the declaration as technically faulty, it would, under the circumstances of this case, have clearly been the duty of the court to permit an amendment, upon this question being raised after the testimony had been received without objection. Under these circumstances, we think no injustice is done by treating the declaration as amended when the point arises on review. Smith v. Pinney, 86 Mich. 484; Enright v. Insurance Co., 91 Id. 238; Warder, etc., Co. v. Gibbs, 92 Id. 29.
2. When the plaintiff was- on the stand, he testified that the contract was 'made between him and one Benjamin Bees, the manager of the southern division of defendant’s road, by parol, and that, at the time, he (plaintiff) made a memorandum on the back of a telegram, which he had received that day from Bees, of the terms of the contract. Defendant moved to strike out this testimony, which motion was denied. Defendant also complains of the fact that the witness was permitted to state that the reference to-flat cars was not contained in the,memorandum. We find upon an examination of the record that the plaintiff proved the alleged contract by parol, by two witnesses, whose testimony is wholly uncontradicted; and it is impossible to conceive how the defendant could have been injured by the reference to the memorandum. Moreover, the defendant first inquired as to the contents of the memorandum.
3. The defendant asked the court to charge the jury that—
. tfIf the plaintiff failed to perform the alleged contract upon his part, he cannot recover any damages from the defendant, whether the defendant performed its part of the contract or not.”
Defendant also claims that the verdict of the jury shows that the jury must have found that the plaintiff failed to perform.his contract, as it is claimed to be evident from-the amount of the verdict that an allowance was made to the defendant for delays occasioned by the excavator being out of repaii’, and that it follows,, as _ matter of law, that the plaintiff was not entitled to recover upon the contract at all. Defendant's counsel state the general rule correctly, . — that one suing upon a contract must show performance on his part, or a readiness to perform, before he is entitled to recover. But we do not understand the rule to be so unyielding as is contended' for by defendant's counsel. In other words, we do not think that every breach of contract by a party to it, which is not availed of by the other party as a reason for refusal to perform on his part, so far annuls the contract that the defaulting party can in the future assert no rights under it. In the present case, if it should have appeared that, during the first week' of the services attempted by this steam excavator, it was, by the fault of the plaintiff, out of repair, so that the defendant suffered damages by reason of the delay, which injury could have been compensated for in damages, does it follow that, after both parties have gone on and performed the •contract for six months thereafter, defendant is relieved from its engagement in respect to the contract? We think not. This subject had some attention in the case of McGregor v. Estate of Ross, 96 Mich. 103, in which an instruction no broader than that asked in the present case was given to the jury, and was held erroneous as applied to the facts of that case. It was said in that case:
“When the deceased committed a breach, the plaintiff was privileged to adopt either one of two courses: He •could abandon further work under the contract altogether, and sue to recover the price of work already performed, and whatever damages he had already sustained because of being prevented from completing the contract; or he could continue, under the contract, to do so much of the work as he was permitted to do, and recover damages for the interruption. But in case he did so there is no reason why he should not be bound by the terms of the contract, so far as he did attempt its performance, and responsible for any breach of condition not dependent upon the neglected performance of the other.”
See, also, 2 Pars. Cont. 678, and Franklin v. Miller, 4 Adol. & E. 599.
4. Error is assigned upon the refusal of the court to permit evidence of the condition of the shovel in 1888. We think there was no error in this. It is said that the declaration alleged the contract to have extended to January 11, 1888. The record shows that both parties agreed that the recovery should be limited to what occurred prior to the 2d of December, 1887, when the machine was shipped from Pleasant Lake to Corunna, and the plaintiff entered upon a new contract with the defendant.
We think it is unnecessary to discuss the other points ¡raised, further than to say that we think the charge was sufficiently favorable to defendant, and that no error was committed to its prejudice.
The judgment will be affirmed, with costs.
Lons, Grant, and Hooker, JJ., concurred. McGrath, C. J., did not sit. | [
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Grant, J.
The defendant was the mortgagee of a mort gage upon the lands described in the declaration in this case. The land was owned by one Gates, who was also the mortgagor. Plaintiff was lessee under Gates. Default having been made in the mortgage, it was foreclosed by advertisement. The time of redemption expired without payment, and the sheriff’s deed became absolute. Locke thereupon instituted proceedings to recover possession under How. Stat. § 8295. Gates and Christler were both made defendants. The case was tried before the commissioner by a jury, and verdict and judgment rendered for Mr. Locke. Gates and Christler appealed the case to the circuit court, where it was again tried with a jury, and Mr. Locke again recovered. Execution upon this judgment was twice stayed by the order of the circuit court in order to give them time to settle a bill of exceptions, and bring the case to this Court by a writ of error. The stay expired January 18, and on the following day Mr. Locke took out an execution, being in form a writ of restitution, and placed it in the hands of the sheriff, who executed it as he was therein commanded, by removing Mr. Christler and placing Mr. Locke in possession. Mr. Christler thereupon instituted this suit to recover damages for a wrongful eviction, and recovered judgment.
The court directed a verdict for the plaintiff, upon the ground that the issuance of the writ by the clerk in vacation time was void, and afforded, therefore, no legal justification to the sheriff or the defendant. In this the court was in error. It is, and always has been, the common practice to issue executions in vacation upon the request of the prevailing party or his attorney. Upon the expiration of the time limited by law for the stay of an execution, it may be issued as a matter of course. Circuit Court Rule No. 13; Herm. Ex’ns, § 75; Carpenter v. Vanscoten, 20 Ind. 50; Little v. Cook, 1 Aiken, 363; People v. Clerk of Circuit Court, 14 Mich. 169. We are not favored with the brief on the part of the appellee, nor does the charge of the court state the reason for the holding. How. Stat. § 8309, provides that, if the complainant shall recover judgment in the circuit court, that court may issue a writ of possession. Judgment under this statute stands upon the same basis as other judgments rendered upon appeal ■or upon suits commenced in the circuit court. Chapter 286, How. Stat., provides a summary remedy to recover possession of lands. In some counties six months elapse between terms of court. Under certain provisions of the statute, no writ can issue within five days after final judgment. Under the plaintiffs construction of the law, many cases might arise wherein execution could not issue in from four to six months. The judgment entered upon the verdict provided that said Locke have restitution of the premises, and that he recover his costs, and that he have execution therefor. We think this judgment authorized the issuance of the writ of restitution as well as the writ of fieri facias for costs, and in this view there was a direct authority for the issuance of the writ in vacation as well ns in term.
The judgment must be reversed, and no new trial ordered, with the costs of both courts.
The other Justices concurred. | [
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] |
Long, J.
This action was commenced before a circuit court commissioner, under the provisions of How. Stat. § 8395, relative to summary proceedings for the recovery of lands. The trial resulted in favor of complainant. The cause was appealed to the circuit, and, after a full hearing, that court directed a verdict in favor of complainant.
The defense to the action was that, prior to the year 1881, the complainant owned the land in controversy. It consisted of a farm of 315 acres. The defendant, who is the son of the complainant, claims that during that year he was living with his father upon the farm, and at that time announced his intention of leaving and going west, when his father made the following arrangement with him; That he (the defendant) was to take the whole of the farm and work it, to have charge of and occupy the same, improve and fix it up, clear off certain land which was not cleared,, keep the stone drawn off, and furnish the complainant and his wife a home and a comfortable support on the-farm; that the expense of running t;he farm was to be-first paid off the farm before anything else; that the families of both were to have their living and support and such reasonable amount of money as was necessary forth eir personal expenses out of the proceeds of the farm;, that the debts were then to be paid, consisting of a mortgage of $3,500, then on the north 96 acres; that, when such debts were paid, complainant was to execute to defendant a good and sufficient deed of the north 96 acres of the farm, and that the defendant was to have the possession of said farm until such debts were fully paid; that this indebtedness was in the year'1883, by mutual consent, increased $1,000, to raise money to build a barn; that the-barn was built, but not upon the 96 acres, at a cost of' $1,350. The defendant went into possession of the farm under his claimed agreement; and he claims to have carried out, so far as he could, the terms of it, when, on Decern ber 30, 1892, the complainant served him with a three months' written notice to quit. Claiming rights under this contract in the premises, he refused to surrender possession; and on September 1, 1893, this proceeding was commenced.
The court below, in directing the verdict in favor of complainant, stated that this agreement, as claimed by defendant, was too indefinite and uncertain to be enforced. This was the point upon which the case was ruled below, and the brief of counsel for defendant is devoted almost entirely to that subject. We think that question has no bearing upon the rights of the parties, as such contract cannot be set up as a defense to this action. The complainant, on December 30, 1892, gave the defendant a three months' written notice to quit, and, in the following September, commenced this proceeding. The legal title is in complainant. He has never made any agreement in writing to convey. The whole defense rests upon the oral contract set forth. It is claimed that the possession of the premises by the defendant under it, and its part performance by him, may be shown in this action as a complete defense. We think not. How. Stat. § 6181, provides:
“ Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some per.son thereunto by him lawfully authorized by writing.''
But it is further provided in section 6183 that—
“Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance of such agreements."
By the terms of this statute, all contracts for the sale of lands or any interest in lands are void unless in writing, and signed by the party by whom the sale is to be made. or by some person thereunto by him lawfully authorized in writing. In an action-at law, an oral contract for such sale cannot be set up either as a ground of action or as a ■defense. In a note to Dwight v. Cutler, 3 Mich. 566, it is said:
“This language renders the oral contract as unavailable as a ground of defense as it is as a ground of action/'’
It is only by virtue of section 6183 that courts of chancery have compelled specific performance of such oral contracts; and it is held that even in a court of chancery, to authorize a decree for specific performance of a parol contract to convey, etc., there must be (1) a contract, the terms of which are so clear and complete as to allow of no reasonable doubt respecting the enforcement of it according to the understanding of the parties; (2) such acts of part performance as, according to equitable principles, will -justify its employment; (3) payment of purchase price. Kinyon v. Young, 44 Mich. 339. Though it is held that, where possession of the land has been given and ■ taken in pursuance of a verbal agreement, the part performance is sufficient to authorize a specific performance (Davis v. Strobridge, 44 Mich. 157), and it has been repeatedly held that giving and taking possession in pursuance of a verbal contract of sale, and making valuable improvements in reliance thereon, will constitute part performance and an equitable ground for specific performance (Lamb v. Hinman, 46 Mich. 112), yet all these cases where specific performance has been sought have arisen in equity, and no case can be found under such a statute as ours where it has been held that in an action at law such oral agreement can be set up as a defense against the legal title to defeat recovery of possession. We need not decide in this case what interpretation would be given to the oral contract, or the right of defendant to have it specific •ally enforced, if, in the proper forum, enforcement should be sought. All we hold is that in this action it cannot ■be set up as a defense.
Judgment is affirmed.
The other Justices concurred. | [
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] |
Grant, J.
August 5, 1892, defendant, Jeffers, and plaintiff Burwitz executed a written lease by which Jeffers leased to Burwitz the store-rooms numbered 116 North Franklin street, in the city of Saginaw, for the term of one year, with the privilege of two, “to be occupied for a general store.” The rent was $720 per annum, payable monthly. The lease contained the usual covenants for repair, and against assigning, transferring, or subletting without the written assent of Jeffers. Plaintiffs Strauss and Cooper became sureties for the payment of the rent and the faithful performance of the covenants, and the contract of suretyship was indorsed upon the lease, and signed by them. August 23 it was agreed that this lease should be surrendered and canceled, and that Jeffers should lease to Burwitz a store known as 206 Genesee avenue. The first lease was surrendered and canceled, and a new lease executed in its stead, which was like the first except as to the amount of the rent, which was to be $1,500 per year, payable monthly, and it did not specify for what purpose the store was to be used. Strauss and Cooper also executed a similar contract of suretyship. Sixty dollars for rent was indorsed upon this lease, but was the same which was paid and indorsed upon the first. September 15, Mr. Burwitz tendered the balance of the month's rent, and demanded possession, which was refused. Immediately thereafter the plaintiffs instituted this suit to recover damages for breach of the contract of leasing. The declaration sets forth the lease in full, alleges that it was drawn and executed for the use and benefit of all the plaintiffs, who were copartners under the firm name of Burwitz & Co., and that this fact was known to the defendant. The parol evidence establishes the fact that Mr. Jeffers was informed by some of the plaintiffs that they either had formed or were about to form a copartnership, and desired the store to carry on the cloak business, and that it was designed to use the store for that business. The circuit court held that the plaintiffs were entitled to maintain the suit, and directed a verdict for them. From this judgment the defendant appeals. The court excluded from the consideration of the jury certain elements of damage, from which ruling the plaintiffs appeal.
Was parol evidence permissible to vary the terms of the written contract? The lease was under seal, and it is contended in behalf of the defendant that in contracts under seal none but the parties to them can sue or be sued. It is unnecessary to determine this question, since we are of the opinion that the rights of the parties in this case are the same whether we regard it as a contract of specialty, or one not requiring a seal, and as, therefore, coming under those decisions which hold that the seal may be treated as surplusage. This is not a case where an undisclosed principal is suing or being sued, nor of false representation or suppression of facts. The entire situation was known to the parties, and with full knowledge of ,all the facts they deliberately made the contract. In terms it binds only Burwitz and Jeffers as principals. It binds Strauss and Cooper as sureties, and does not bind G-lick at all. It is now sought to change the contract of surety-ship into another and different contract, and to make one who was intentionally omitted a party to it. Could Jeffers hold Glick as a principal upon this lease, after he had ■expressly refused to make a lease with him? Mr. Jeffers had the right to make a lease with whom he pleased. If he had refused to make a lease with the plaintiffs, or either of them, and had said to them, “I will lease the store to A. B., and if he chooses to let you occupy it he may,” and the lease were made to A. B., could Jeffers have sued the plaintiffs for the rent? Or could he have sued A. B. and plaintiffs jointly? To so hold would be to make a contract which the parties themselves did not make, and which one of them expressly refused to make. Jeffers •chose to deal with Burwitz as an individual, and not with the firm to which he belonged. We are not concerned with his reasons for so doing. Mr. Burwitz chose to so deal with Jeffers, and his reasons for so doing are immaterial. Courts cannot substitute another contract for the cne they made, and force contract relations upon a party who had expressly refused to enter into them. Adair v. Adair, 5 Mich. 204; Jones v. Phelps, 5 Id. 218; First National Bank v. Bennett, 33 Id. 520; Coots v. Farnsworth, 61 Id. 497; Jacobs v. Miller, 50 Id. 119. We think these decisions control the present case. This holding is not in conflict with the many decisions involving the rights and liabilities of undisclosed principals.
This disposal of the case renders it unnecessary to discuss the question of damages.
The judgment against the defendant must be reversed, and judgment entered for him, with the costs of both courts.
The other Justices concurred.
See Blagborne v. Hunger, 101 Mich. 375. | [
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] |
Long, J
This action was brought to recover the value of a one-third interest in an engine and threshing machine. Defendant had verdict- and judgment under the direction of the court.
It appears that in July, 1890, B. R. Cushman, William N. Cushman, and A. R. Dodge entered into a contract in writing with the defendant for the purchase of the engine and thresher for the price of $1,550. To secure the payment of the purchase price four notes were to be given. The property was delivered in August, and the notes given. The first was for $387.50, and was signed by all the parties; the second was signed by the two Cushmans and by Jared A. Cushman as surety; the third by the two Cushmans; and the fourth by Mr. Dodge alone, and to secure the payment of which he gave a real-estate mortgage, signed by himself and wife. Each of the last three notes was equal in amount to the first. The contract contained a printed stipulation as to the material and workmanship of the machine, and in which it was recited:
“The title, ownership, and right of possession shall remain in the party of the first part until the price above' named, including notes, is fully paid.”
The contract was signed by the two Cushmans and Dodge. The first note was fully paid, and the second one also, all but $18.66'. Nothing was paid on the third, and the fourth was not yet due when the machine was taken by defendant. The interest of one of the Cushmans and of Dodge in the machine was transferred to the plaintiff, who took the transfer from Dodge without notice of the rights of defendant under the contract. Defendant took the property into possession, claiming that right under the contract, by reason of failure of the payment of the third note. The real-estate mortgage given by Dodge and wife has been foreclosed, or is in process of foreclosure.
It was claimed on the trial by plaintiff:
1. That the contract was a sale to each of the Cushmans and Dodge of a on'e-third interest, and not a sale of the whole to them jointly, and that each is responsible only for the payment of one-third of the purchase price.
2. That because one note was indorsed by Jared A. Cushman, and one note secured by Dodge by a real-estate mortgage, the sale was a completed one, and the company could not insist upon the subsequent provision in the contract which recited that it retained title to the property; that the recitation of the times and terms of payment are inconsistent with the provision as to the title remaining in the defendant company, and, as the times and terms of payment were written in, while the stipulation as to title is a part of the printed form, the former must control.
3. That Mr. Dodge was induced to sign the contract by fraud, in that, before the contract was signed, the agent of the company read it over to him, as he did not have his glasses with him, and could not read without them, and that the agent did not read this printed stipulation as to title.
Under this last claim the plaintiff sought, to show the alleged fraud; but the evidence was excluded, and, we think, properly. It appeared that the contract was in the form of an order for the machine. A copy was left with the Cushmans and Dodge, and when the machine was delivered the notes and mortgage were given. The notes contained the same stipulation as to title as contained in the contract, and the mortgage given by Dodge referred to this clause. The note and mortgage signed by Dodge were read by him, and he was fully apprised of the stipulation as to title. Knowing the contents of these instruments, he signed them, took the machine into possession, and used it for two years, and finally sold his interest. It cannot be contended, under such circumstances, that he did not know of this stipulation.
The plaintiff, under his claim that the contract conveyed separate interests, sought to show what the arrangement and agreement was. This was based upon the claim that the order or contract of purchase was ambiguous and needed explanation. The court held that no ambiguity existed, and, we think, properly. In the case of Larkin v. Butterfield, 29 Mich. 254, it was expressly stipulated in the contract that “ each of the sai$ first parties to be held personally responsible for one-fourth of the said $1,500.” This was held to be a several, and not a joint, undertaking, and that this was shown upon the face of the- contract. But it is evident that the parties to the contract in the present case did not regard the contract of purchase as conveying to them separate interests. After the purchase, they entered into a contract between themselves relative to the running of the thresher, what each was to do, and how the accounts were to be collected and the proceeds divided.
There cannot be said to have been a completed sale. It is conceded .that the title to personal property sold may be retained by the seller, and that a note may be taken for the price, and the sale'will still be,conditional; but it is claimed that, if other or collateral security be taken, then the sale becomes absolute. This is not the rule. It was held in Peninsular General Electric Light Co. v. Norris, 100 Mich. 496, that a mechanic’s lien could be en forced notwithstanding the title was held by the vendor. In Manufacturing Co. v. Smith, 40 Fed. Rep. 339, it was said:
“Instead of being inconsistent, it was merely additional security to that provided by the statute. It certainly does not establish, as matter of law, that, in thus retaining title to the machinery, complainant has waived its statutory lien upon the lot of ground or premises on which the machinery was placed.”
In Fuller v. Byrne, 102 Mich. 461, a stipulation was inserted in the contract, which provided that the property “is and shall remain the property of Estey & Camp until each and every of said amounts, and interest thereon, and any judgment rendered thereon, is paid in full.” It was claimed that the rendition of judgment for the purchase price passed the title to the property. It was held that it-did not have that effect, but that the vendor could take possession of the property under the contract.
It was held in Couse v. Tregent, 11 Mich. 65, that one in possession of personal property, of which he has made a conditional purchase, cannot, before the condition has been complied with, sell the property so as to vest the title in a bona fide purchaser. This rule has been restated in many subsequent cases, and in which it has been held that the contract need not be recorded as a chattel mortgage. The court below was clearly right in directing verdict for defendant.
The judgment must be affirmed.
McGrath, O. J., Grant and Hooker, JJ., concurred. Montgomery, J., did not sit.
The action was originally brought to recover the value of a two-thirds interest, but at the close of the proofs plaintiff’s counsel stated that they only asked a recovery for the one-third interest purchased of Dodge, as to which they claimed that the plaintiff was an innocent purchaser for a valuable consideration, but not as to the one-third interest purchased from Cushman.
CONDITIONAL SALE OE PERSONAL PROPERTY.
The growing importance of the questions arising out of the sale of personal property, coupled with the retention of title by the vendor until the conditions of the contract of sale are performed, has seemed to justify the preparation and publication, in conneo tion with the foregoing opinion, of a note collating the Michigan cases bearing upon the subject.
General Rules Applicable to the Subject.
1. Couse v. Tregent, 11 Mich. 65, holding that the right of the owner of chattels' to sell the same conditionally is as old as the right to loan them; that the possession by the conditional purchaser is no more a means of defrauding third parties than that of the bailee of goods for hire; that, so long as the conditions are not waived and remain unperformed, the property does not vest in the purchaser; that the principal question which has engaged the attention of courts is that of a waiver, for, if the condition be waived, the property passes with delivery.
2. Edwards v. Symons, 65 Mich. 348, 355, holding that the rule of law that permits a vendor to retain the title to goods bartered by him, and placed apparently in the exclusive possession, control, and ownership of the vendee, until the whole purchase price is paid, without notice to parties dealing with such vendee, is, at best, a harsh one, and should not be enforced except in cases where the agreement so to hold the title is positive and unambiguous.
3. Jenks v. Colwell, 66 Mich. 420, 428, holding that in Michigan, where the validity of conditional sales of personal property is recognized, the right of the vendor to follow the property into the hands of third parties, or to sue them for its conversion, depends upon the good faith of the transaction; that where the purchase is made from the vendee in good faith, and without notice, and under circumstances in which the original vendor must have known or contemplated that the property would be sold by his vendee, and incorporated into or made a part of the freehold, his rights are subservient to those of the innocent purchaser.
4. Thirlby v. Rainbow, 93 Mich. 164, holding that the question of the right of a vendee of personal property, the title to which was retained in the vendor until the payment of the purchase price, with the right to reduce it to possession in case of non-payment, to recover the amount paid thereon in excess of what the vendor had a right to retain, cannot be tried in a replevin suit brought by the vendor after default in payment and refusal to surrender the property.
Illustrative Cases.
1. Couse v. Tregent, 11 Mich. 65, where a piano was sold and delivered to the vendee upon a written agreement that the instrument should remain the property of the vendor, and subject to his direction, until paid for, when it should become the property of the vendee, who, in case of default in such payment at the time specified, should pay interest on all amounts not paid. The vendee sold the piano to a good-faith purchaser, from whose possession it was replevied by the vendor, who claimed to be the owner. And it was held that the original sale and delivery of the piano were both conditional; that the vendor could not, as between himself and the vendee, be said to have parted with the title; that the possession of the vendee was determinable at the pleasure of the vendor from the moment of delivery until payment; that by such delivery the vendor did not give to the vendee the ostensible ownership any more than the lender or hirer of chattels gives it to the person to whom he lends or hires them; that the possession of goods, although prima facie evidence of ownership, is not such proof of it as to confer any equities upon third parties against the title of the actual owner, unless fraud exists.
2. Dunlap v. Gleason, 16 Mich. 158, where a sewing machine was delivered by the owner to a man and his wife, who agreed in the receipt given for the machine to safely keep and cai'efully use the machine, and not remove it from the county in which they resided, and at the expiration of three months return it to the owner, free of charge and unincumbered. This agreement was subject to an understanding, expressed in a proviso, that if, on or before the expiration of said three months, the husband should pay to the owner the sum of $60, the receipt should be null and void, and the owner should execute to the husband a bill of sale of the machine. And, in replevin by the owner against a purchaser of the machine from the husband and wife, it was held that the terms of the paper clearly showed that the owner of the machine did not intend to trust to the personal responsibility of the husband, or to part with his title to the machine, conditionally or otherwise, until the $60 should be paid; that he did not take from the husband an alternative promise, leaving with him a choice in performance, but required an absolute undertaking for the return .of the machine within a time limited; that the further stipulation was in the nature of a defeasance of that undertaking, dependent, not upon the husband’s agreement to pay the $60, but upon his actually paying it; that, until such payment should be made, the agreement to return the machine remained in full force, and that the owner had a right to replevy it when the husband put it out of his hands, whether the three months had expired or not.
3. Preston v. Whitney, 23 Mich. 260, where a music dealer contracted in writing for the sale of a piano at an agreed price. The contract provided that the unpaid portion of the purchase price should be paid in installments, and that until paid the piano should remain the property of the vendor; that, in case the vendee should fail to make any payment as specified, at and from the time of such failure the vendor should be entitled to the possession of the piano, and the contract should become void. After the vendee had paid $100 of the purchase price, and the piano had been in .his possession three months, he failed to make the fifth payment, whereupon the piano was taken back by the vendor, who gave the vendee his note for $70 to cover the $100 so paid, less $30 deducted for the use of the instrument. And in a suit upon said note it was held:
a — That the agreement was one for a conditional sale only, the property remaining in the vendor, as owner, until paid for; that it never passed to the vendee; that while it was expressly provided that, for non-payment of any one of the several installments, the vendor might take possession and said agreement to sell should become void, no provision was made for the forfeiture by the vendee, or the retention by the vendor, of any sum or any portion of the sum which might have been paid upon it before forfeiture; that, from the time of taking possession, the agreement for the sale might be treated as void, or, more properly, as terminated.
b — That the vendor, having received $100 of the vendee’s money, paid only in consideration of the proposed purchase, and having taken back the property which constituted the consideration, and having terminated the contract upon which it was paid, had so much of the vendee’s money in his hands, for which he should account upon just and equitable principles; that he would have the right to deduct from the amount so paid a fair compensation for the use of the piano during the period it remained in the vendee’s possession (or perhaps, at his option, the interest on its price for that period), as well as for any reduction in value from injury beyond that arising from its legitimate use, and for any incidental expenses in regaining possession; but that he would have no right, under the agreement, to claim any forfeiture of all the money paid, beyond such reasonable compensation.
4. Giddey v. Altman, 27 Mich. 206, where a piano was delivered to a firm upon their agreement to purchase the instrument, and in payment therefor to deliver to the vendor certain subscription tickets for a newspaper. The contract further provided that the vendees should repurchase, at a stated price, all the tickets which the vendor had not disposed of by a given date, he agreeing to use all reasonable exertion and diligence to sell the tickets. It was further agreed that the piano should remain the property of the vendor, and subject to his directions, and should not be moved from place to place without his written assent, until the conditions specified should be fulfilled. No penalty was imposed upon the vendees for failure to observe this latter stipulation. In case of default on the part of the vendees in any of the conditions to be by them performed, the vendor was to have the right to declare the agreement void, and take possession of the piano wherever it might be found, without legal process, and retain the payments theretofore made to apply as damages for the non-performance of the agreement. The vendees sold the piano, and it finally came into the possession of a good-faith purchaser. The vendor did not succeed in selling all of the tickets, and after tendering to the vendees those remaining unsold, which they refused to accept, he placed the same in the hands of an attorney for collection, and, without previous demand, took possession of the piano, and it was replevied by said purchaser. And it was held that the most natural and obvious construction of the agreement was that the vendees were to have possession of the piano until the sale should be declared void for their default, when the vendor would be restored to all his former rights; that no penalty was attached to the failure of the vendees to observe the stipulation as to the non-removal of the piano, etc., beyond what would follow the breach of an ordinary contract, and the vendees would therefore lose no rights in the piano, and the vendor gain none, by a violation of said stipulation; that the vendor was not entitled to the possession of the piano when he took it, unless he had previously exercised his right to declare the contract of sale terminated, of which there was no proof, unless the tender of the unsold tickets to the vendees was sufficient; that the vendor waived the tender when he subsequently delivered the tickets to the attorney for the purpose of collecting the money which they nominally represented, and he must be regarded, therefore, as still treating the agreement of sale as in force.
5. Johnston v. Whittemore, 27 Mich. 463, where a firm of music dealers made a conditional sale of an organ, and took from the vendee a contract in which he agreed to hold in his possession the organ, and purchase the same at an agreed price, payable as stated in the contract. It was provided, further, that the organ should remain the property of the vendors, subject to their direction, and not to be moved from place to place without their written assent, until the purchase price should be paid; that, in case of default in any of said conditions, the vendors might declare the agreement void, and take possession of the organ without legal process, and the payments which might have been made might be retained to apply as damages for the non-performance of the con. tract. And in trover for the organ, which had been converted by the vendee after all of the purchase price, except $100, had been paid, it was held that the vendors could not recover, as damages, the value of the organ; that the unpaid portion of the purchase price and interest represented their entire interest in the organ at the time of the conversion; that the provision for the retention of the payments that had been made, as damages for the non-per^formance of the contract, was connected with, and intended as a I>art of, the provision for declaring the contract void and retaking the organ, and was intended to apply only to such á contingency; that the vendors did not proceed upon that ground; that what might have been the effect of said provision in case the contract had been declared void need not be decided, though it was clear that such a provision is not one which the law would enforce as for stipulated damages, as it is not based upon any idea of just •and adequate compensation,
6. Whitney v. McConnell, 29 Mich. 12, where music dealers made an executory bargain for the sale of a piano, evidenced by a •contract containing a provision that the instrument should remain the property of the vendors until paid for, and that until paid for it should not be removed from the residence of the vendee without the written consent of the vendors. The vendee pawned the piano, and the vendors replevied it from the pawn-broker without demand. And it was held that the contract created a bailment in the vendee; that the condition against removal was not only valid, but necessary to secure the vendors from just such transactions as the one complained of; that the transfer and removal of the piano into the custody of the pawn-broker was a direct violation of the duty of the vendee as bailee, and that no demand was necessary before replevying the instrument.
7. Knowlton v. Johnson, 37 Mich. 47, where certain waterwheels were sold to the lessees of a grist-mill with the express understanding that they were to be put into the mill and used therein, but that no property in the wheels should vest in the lessees until they were accepted and paid for. The lessees received the wheels, and, against the objection of the lessor, removed those already in the mill, and set up the new ones in their stead. The new wheels were attached to the building, and the flume was built up around them in such manner as to prevent their being removed without injury to the building to the extent of from $100 to $300. The lessees, after operating the mill for a time, surrendered their lease, and the lessor leased the mill to one of their ■employés, who ran it until the lessor sold the mill, without reservation, except of the old wheels, which were lying unused in the mill basement. The purchaser had no notice of any claim against or on account of the new wheels. And, in trover by the vendors for the new wheels, it was held that the plaintiffs deliberately agreed that the wheels should be converted in all outward appearance into real property, and thereby put it into the power of the lessor to make sale of the wheels as part of the mill; that he sold accordingly; that the defendant purchased; that he acted in good Jaith, and was guilty of no want of care; that, when the plaint iffs allowed the wheels to be worked into the mill, they assumed risks, and among them such a result as had occurred; and that it would be contrary to justice to allow them to save themselves by casting the consequences upon the defendant.
8. Smith v. Lozo, 42 Mich. 6, where a sewing machine was-rented to a proposed purchaser at a specified rental, of which $35 was paid down, and of the remainder $5 was to be paid on the first day of each succeeding month until the sum of $85 should be paid. The agreement contained the usual provisions as to forfeiture in case of non-payment of rept or of a sale or attempted sale of the machine, and closed with a stipulation that, if the lessee desired to purchase the machine, she should have the privilege of doing so at any time during the continuance of the renting by paying to the lessor the $85, in which case all sums-paid for rent should be deducted from said sum, but that such privilege to purchase should in no way interfere with the right of the lessor to control the machine, all property remaining in the-lessor the same as though the privilege of purchase had not been added to the agreement for renting, until the $85 should be paid. And it was held that the title to the machine continued in the-lessor, and that in point of law it was entitled to dispossess the lessee in case of her default.
9. Winchester v. King, 46 Mich. 102, holding that the mortgaging by a vendee of goods furnished him under a contract retaining the title in the vendor until the goods are paid for is an assumption of ownership on the part of the vendee wholly inconsistent with the title claimed by the vendor, and such a termination of the contract of bailment as entitles the vendor to the possession of the goods.
10. Ingersoll v. Barnes, 47 Mich. 104, where a steam engine was-sold under a written agreement which provided that, after the making of a cash payment thereon, the vendee should be allowed to take the engine and put it in the flouring mill he was then building, subject to the further provision that the engine, although put into said mill and used there or elsewhere, should be and remain the property of the vendors until fully paid for. The engine was placed in the mill, and the vendee, after running the mill for a time, conveyed the mill property by a warranty deed to a third party. The vendors sued the purchaser in trover for the engine,, and recovered a judgment for its value. And it was held:
a — That, it not appearing that either of the vendors had any knowledge of the manner in which the engine was attached to the realty previous to the sale to the defendant of the mill property, the case stood in that respect as the ordinary one of a sale of an engine to be put up and used as the motive power in a, mill.
b — That as the evidence tended to show that the defendant had sufficient knowledge of the plaintiffs’ claim to have put him upon his guard, and put upon him the duty of making inquiry, acting as a prudent, cautious man should do under the circumstances, the case was not governed by Knowlton v. Johnson, 37 Mich. 47, and the judgment was affirmed.
11. Marquette Manufacturing Co. v. Jeffery, 49 Mich. 283 where certain steam and wood-working machinery was delivered to proposed purchasers under an agreement retaining the title in the vendor until paid for, with the right to resume possession of' the property, wherever found, at any time, for the breach of the contract. The contract further provided that, when all of its terms and conditions should be performed, the vendor should give to the vendees a bill of sale and guarantee the title. Before the machinery was paid Tor, and after it had been fastened and permanently bolted down, and the boiler walled up in a building owned by the vendees and standing on leased land, the entire property was levied upon by a judgment creditor of the vendees, whereupon the vendor replevied the machinery from the sheriff; And, in affirming a judgment in favor of the plaintiff, it was held that no language could have been used which would have expressed more plainly the intention of the parties to pass no title, and that there was no title in the vendees which could authorize the levy.
12. Adams v. Wood, 51 Mich. 411, where a vendor replevied a horse which he had sold and delivered to the defendant, retaining the title until the animal should be paid for. The purchase price, except $10, which was not due at time of the seizure, had been paid. No demand for the horse or the $10 was made. The defendant had never sought to change or in any manner incumber the title to the property, or do any other act in violation of his contract of purchase. Upon these facts the circuit judge found that the suit was prematurely brought, and rendered a judgment in favor of the defendant for a return of the property and $10 damages for its detention, with costs, and in favor of the plaintiff for a special interest in the horse to the amount of $10. And in affirming the judgment it was held:
a — That the defendant came lawfully into the possession of the property; that, under the facts found, the question of the waiver of necessity for a demand became immaterial, as the taking under the writ appeared to have been withoirt right.
b — That the judgment for the return of the property did no more than transfer the possession to the party from whom it had been wrongfully taken; that it did not impair the plaintiff’s rights under his contract of sale, upon which there was no contest; that it gave him the amount of his interest therein, and with this he fihould have been content.
13. Edwards v. Symons, 65 Mich. 348, where one of two copartners agreed with the other (a corporation) to purchase its interest in the partnership at an agreed price, payable in installments, with interest on deferred payments. The vendor was to retain its title to the property until full performance by the vendee of the agreement, as its interest in the partnership might from time to time appear, it being agreed that the interest of the vendee should increase, and that of the vendor decrease, in proportion to the payments made by the vendee in accordance with the terms of the contract of sale, and that, so long as the vendee was not in default, all of the profits of the business should belong to him, the interest received upon the deferred payments being accepted by the vendor in lieu of its share of said profits. Pursuant to the terms of the agreement the vendee assumed, and up to the time of the making by him of an assignment for the benefit of creditors, which occurred some six months later, retained, the sole possession and management of the business, which was carried on in the partnership name, during which time he purchased goods and contracted debts to quite an amount. The assignee for the creditors took possession of the property, and converted it into money. And, in an action of assumpsit brought by the assignee of the contract against the assignee for creditors, it was held:
a — That the title of the vendor to the partnership property could not be extended to goods or property purchased by the vendee after the date of the contract of purchase, which did not, by express terms, cover after-acquired goods; that the filing of said contract in the office of the clerk of the city in which the parties resided could not enlarge the scope of the agreement as to the title to the property, nor could it be considered as creating a lien or mortgage upon goods bought after its date.
b — That the plaintiff was entitled to a judgment for the amount of the goods on hand at the time of the assignment to the defendant that were a part of the stock when the contract of sale was made, and to such portion of the collections made by the defendant as assignee as came from the proceeds of the sale of such goods or property as formed a portion of the stock on hand at the date of said contract.
14. Jenks v. Colwell, 66 Mich. 420, where a millwright contracted to construct a mill building on land owned by the contractees, and placed therein a steam boiler and machinery. He then entered into a contract with the manufacturers for the purchase from them of the boiler and machinery at a specified price, $500 of which was to be paid down, and the balance in 20 days, with interest, upon the making of which latter payment the manufacturers were to execute to him a bill of Sale of the property. The contract further provided that the title to the boiler and machinery should not pass out of the manufacturers until the purchase price should be fully paid; that the same should not become a fixture by being placed in any mill or other building, or by being annexed in any manner to the realty; and that, upon the violation by the vendee of any of the conditions of the contract, the manufacturers might take possession of the property, and that any money already paid thereon should be considered as having been paid for the use of the same. At the time of the making of the contract, the manufacturers knew what use the vendee proposed to make of the boiler and machinery, and were informed by him of his contract in regard thereto. The vendee did not make the $500 payment himself, and the boiler and machinery were shipped to him upon the telegraphic guaranty of the contractees to make said payment for him. The vendee, claiming to have completed his contract, gave the manufacturers an order on the contractees for the balance their due. The contractees sent to the manufacturers a draft for said amount, less $800, which they claimed to have expended in completing the mill according to contract, leaving a balance due the manufacturers of $597.44. The contractees had no notice of any claim by the manufacturers upon the boiler and machinery until one month after their shipment, at which time they received a letter from them stating the balance due and asking for payment of the same. And, in an action of trover by the manufacturers against the contractees for their claimed interest in the boiler and machinery, it was held that a verdict should have been directed in favor of the defendants, for the reason that the plaintiffs understood, when they sold the property, that it was purchased by the vendee for the purpose of attaching it to tho realty of the defendants under his contract with them to do so; that with that knowledge they obtained $500 of the defendant’s money, and guaranteed the shipment of the machinery for the purpose stated, without notice to or knowledge on the part of the defendants that they still claimed the title to the boiler and machinery.
15. Hood v. Olin, 68 Mich. 165, holding that a purchaser of property on condition that it is not to be his until paid for cannot mortgage it in hostility to the rights of the vendor. (See Wiggins v. Snow, 89 Mich. 476, 478.)
16. Sewing Machine Co. v. Bothane, 70 Mich. 443, holding that a vendee in the lawful possession of a sewing machine under a contract retaining title in the vendor until paid for, and who has nearly paid for the same, cannot be dispossessed by replevin without a prior demand; that in such a case, on waiving a return, the value of the defendant’s interest in the machine should be assessed at the purchase price, less the balance due, with interest from the time the machine was replevied, it appearing that it had lost-nothing in value.
17. Begole v. Stone, 72 Mich. 71, where the bona fide holder of a chattel mortgage replevied the property from a third party, who claimed to have sold it to the mortgagor conditionally, and to have retained the title until the property was paid for. And it was held that the rights of the defendant under such sale should not have been submitted to the jury apart from the circumstances tending to show, as claimed by the plaintiff, that by his conduct-the defendant had waived or abandoned his rights to the property.
18. Button v. Trader, 75 Mich. 295, where one of two owners of a stock of meats and a meat-market outfit sold his half interest-to the other owner upon condition that the title should remain in him until the purchase price should be paid. The purchaser sold the entire property to third parties, who paid a portion of the purchase price with their negotiable note, after which the part owner who had sold his interest to their vendor sued him for the-purchase price, and recovered a judgment for the full amount due. And, in a suit upon the note by an alleged bona fide purchaser, it was held that by suing and recovering said judgment said part-owner elected to confirm the sale of the property to the makers-of the note; that he could not thereafter repudiate such election, and maintain a claim to the property; that therefore it made no-difference whether the plaintiff had notice before he bought the-note of the claim of such part owner or not; and that a verdict should have been directed for the full amount of ■ the note and interest.
19. Kendrick v. Beard, 81 Mich. 182, holding that the following clause in a note given in part payment for a span of horses, immediately following the statement of the sum agreed to be paid, namely, “being balance due on one span of horses bought of him [the payee], said horses to be holden to him as security for payment of this note,” is not so certain and unambiguous as to import a mortgage, and not a conditional sale, and parol evidence that the title to the team was not to pass until the horses were paid for is admissible as explanatory of the doubtful language.
20. Hovey v. Gow, 81 Mich. 314, where a contract for the sale of' lumber provided that it should belong to the vendors until shipped, in the spring of 1889, and when so shipped should be free from any insurance charges or taxes that might be assessed against it. A portion of the lumber was seized to satisfy taxes assessed for 1888 against the vendees, and was replevied by the vendors. And it was held that the contract is unambiguous, and that under it. the vendors remained the owners of the lumber until it was shipped.
21. Brewery Co. v. Merritt, 82 Mich. 198, holding that a contract by which a brewing company agrees to ship to a firm all beer ordered by them at an agreed price per barrel, the title to remain in the company until the beer is sold, and by which the firm agree to take and pay for the beer on the conditions named, is valid as to creditors of the firm, and creates a mere agency, under which the firm are to take and sell the beer, and pay over from the proceeds the agreed price per barrel.
22. Pratt v. Burhans, 84 Mich. 487, holding that a contract by which the title to goods is to remain in the owner until they are paid for, or sold in the due course of trade, by the person to whom they are delivered, is valid, and such purchasers take a good title, and those who do not purchase in the due course of trade cannot rely upon the bare possession of their vendor as conclusive evidence of title.
28. Tufts v. D’Arcambal, 85 Mich. 185, where a contract for the sale of certain soda-water apparatus provided for the retention of title by the vendor until the property should be paid for, and that, in case of the non-payment of either of the purchase-price notes at maturity, the vendor might take possession of the property, but did not provide that such act should operate as a rescission of the contract, or as a forfeiture of the payments made thereon. On default being made in such payments the vendor replevied the property. And it was held that such action did not entitle the vendee to rescind the contract, or to recover the amount paid thereon, or to a delivery of the unpaid notes, nor did it give him any lien upon the property for the amount of such payments; that plaintiff was entitled to judgment, and to his damages for the detention of the property; and that upon the payment of the amount due the vendee would' have a right to a return of the property.
24. Wiggins v. Snow, 89 Mich. 476, holding that a contract of sale which provides that the title to the property shall remain in the vendor until the purchase price is fully paid, but which contains no provision authorizing the vendor to retake possession in case of default, clearly implies that the right of the vendee to possession is dependent upon his making such payment as provided in the contract, and that, in the event of default and demand, the vendor may maintain replevin for the property.
25. Gill v. De Armant, 90 Mich. 425, where the owner agreed to sell an undivided half interest in a saw and shingle mill, and it was stipulated in the contract that a failure to pay the purchase price should avoid the contract. The purchaser went into possession with the vendor, and then sold her interest in the prop erfcy, and her vendee purchased the remaining one-half interest upon a contract which reserved the title to the vendor until the purchase price should be paid, and went into sole possession. After the partial destruction of the property by fire, the second vendee sold a portion of the machinery to certain mill-owners, and they, without the consent of the original vendor, affixed it to their mill. The original vendor replevied said machinery, and on the trial offered the two agreements in evidence, and they were received, in connection with proof that a considerable sum was due and unpaid upon each when the suit was commenced. And, in affirming a judgment in plaintiff’s favor, it was held that the title to all of the mill property remained in the original vendor at the time the mill-owners purchased the machinery, and, in the absence of his consent, they could not attach it to their mill so as to make it a part of the realty.
36. Lansing Iron & Engine Works v. Walker, 91 Mich. 409, where the owner of an undivided interest in a farm purchased a portable saw-mill. The vendor retained the title and right of possession until the mill should be paid for, but gave the vendee permission to take and use the mill in the township where his farm was situated, and in adjacent townships, so long as he took reasonable care of it, and was not in default in any of the payments provided for in the contract.' The vendee made the first payment, and set up the mill on his farm, the boiler being bricked in and arched up, and the engine set upon brickwork and bolted to the foundation, and both being roofed over, while the saw-mill and carriage were uncovered. He afterwards conveyed the farm by quitclaim deed. And in an action of trover, brought by the vendor against the grantee on refusal to pay the remainder of the purchase price, a judgment was entered upon a verdict directed in his favor, which judgment is affirmed.
37. Powell v. Eckler, 96 Mich. 538, holding that an agreement for the leasing of a piano at an agreed monthly rental, and for its sale to the lessee at the expiration of the term of the lease upon payment to the lessor of a specified sum, merely gives the lessee the right to the use of the instrument on payment of the rent, with an option to purchase it on the terms stated.
38. Fuller v. Byrne, 102 Mich. 461, where a contract for the sale of a piano provided that the instrument should remain the property of the vendor until the purchase price and any judgment rendered thereon should be paid in full. And it was held that the vendor had the right to obtain such judgment, and the title to the piano would not pass until the judgment was paid. | [
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] |
Wiest, J.
In Detroit Trust Co. v. Hart, 274 Mich. 144, we affirmed the circuit court in refusing to confirm a sale and ordering a resale under a decree of foreclosure of a trust mortgage on a 33-apartment building in the city of Detroit.
Resale has been had with a slightly increased bid by plaintiff A. H. Moorman in behalf of the mortgage bondholders. Again the circuit court has refused confirmation and plaintiffs review by appeal.
Confirmation by the court is not a mere ministerial act but a judicial function involving- consideration of the circumstances in each instance and the exercise of sound discretion. On both occasions the court found the bids inadequate. The second sale has demonstrated that no one will bid the amount the court thinks adequate. The court refused a moratorium delay in May, 1935.
Prior to the last sale, Mr. Moorman, as chairman of the committee for protection of the mortgage bonds, sent a written communication by way of letter to the members of the Detroit Real Estate Board calling attention to the time and place of sale and the intention to bid $30,000, subject to unpaid taxes amounting, approximately, to $18,000, exclusive of interest and penalties; that confirmation of a bid of $25,000, subject to taxes, made at a former sale, had been refused as inadequate, and ending*—
“If you are interested in offering* a bid for this property, you are invited to do so and all information available in the hands of the committee and the Detroit Trust Company, trustee under the mortgage, will be made available to you upon request.
“If you know of any one who would be interested, we shall appreciate your informing him of the time and place of the foreclosure sale.”
A somewhat similar notice was published in the Detroit Free Press, but also stating:
“The committee invites any party interested in acquiring this property to offer a bid at the time and place above stated of more than $30,000, subject to taxes, and will ask the court to confirm the sale to the highest bidder.”
A copy of the above mentioned letter and of the published notice was also mailed to Harry Applebaum, one of the defendants who had opposed the confirmation of the first sale, and also stating:
“The committee will welcome your securing a bidder for this property for any price in excess of $30,000 and will ask the court to confirm the sale to any such bidder. We hope you will take advantage of this opportunity to purchase the property or have some one purchase it for you at this price.”
The offered bargain, if such, had no appeal to investors or to Harry R. Applebaum, executor under the last will and testament of Isaac Applebaum, deceased, who, in March, 1935, filed the petition for a moratorium claiming to be the owner of the property.
The value of the property may exceed the bid but such is not the sole test. G-ood faith in making the bid and honest endeavors to induce others to bid should be considered, as well as the effort to obtain more at a second sale. The refusal to confirm the second sale operates, in practical effect, to a stay of sale or, at least, to further trials and consequent loss to the mortgage bondholders without any reasonable probability of benefit to the mortgagors.
The mortgagors may be unfortunate, by reason of financial inability to meet the mortgage obligation or to bid at the sale, but the appeal thereof served its allowable end when the second effort proved a failure.
We are loath to disturb the action of the circuit court in ordering a third sale, but consideration of the rights of all parties leads to the conclusion that further delay will but injure the holders of the mortgage bonds and accord possessors of the property all the advantages of a moratorium without exaction of any equitable requirement.
We think the disclosed circumstances command confirmation of the sale, and the case is remanded to the circuit court with direction to enter such an order, conditioned, however, upon the waiver made in the circuit court and as extended in terms in the brief filed herein as follows:
“The holders of 81-% per cent, of the mortgage indebtedness have waived the deficiency arising from this sale. The deficiency created by this sale is $59,873. The holders of 81-% per cent, of this deficiency waive it. This amounts approximately to $49,000, leaving a deficiency of approximately $11,000.”
Costs to plaintiffs.
North, C. J., and Fead, Butzel, Bushnell, Sharpe and Toy, JJ., concurred. Potter, J., did not sit. | [
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73
] |
McGrath, G. J.
This is an application for an order do show cause why the Attorney General should not file an information in the nature of a quo warranto to inquire by what right the Detroit Citizens’ Street-Bailway Company claims to exercise, and does exercise, in certain streets •of the city of Detroit, the right of maintaining and using street-railway tracks in said streets.
Petitioners allege that in November, 1862, the common council of the city of Detroit passed an ordinance whereby •consent was given to one Bushnell and his associates, who were about to organize as a corporation, to lay street railway tracks and to operate a street-railway system in and ■upon certain streets in the city of Detroit; that “ afterwards, •on the 9th day of May, 1863, said.Bushnell and his associates organized into a corporation, which, by its articles, was to continue for 30 years, under the name of .the Detroit City Bailway, which entered into possession of said streets, and built and maintained street-car lines, and exercised all the usual franchises connected therewith; ” that “ November 14, 1879, another ordinance was made, adding other provisions to the agreement between the street-railway company and the city, and providing that "the ‘powers and privileges conferred and obligations imposed on the Detroit City Bailway Company by the ordinance passed November 24, 1862, and the amendments thereto, are hereby extended and limited to 30 years from this date;”’ that in 1891 the Detroit Citizens’ StreetBailway Company was organized for a period of 30 years, and, soon after its organization, received a conveyance of all the property rights and franchises of said Detroit City Bailway Company, and under such conveyance the Detroit Citizens’ Street-Bail way Company claims the right to operate, and is now using, all the franchises in said streets; “that the value of the franchises and rights in said streets occupied and claimed by said Citizens’ Street-Bailway •Company is very great, and that its claims are a great obstacle, as your petitioners are informed and believe, and therefore aver, to the making of the best terms which the city can make for the public accommodation by the establishment and maintenance of improved street-car lines on said streets, and are therefore injurious to the city and all residents; that, if the claims of said Citizens’ Company are declared void, arrangements can readily be made with other street-car companies by which the car service can he greatly improved, and either the fares much reduced, or the amount paid to the city be greatly increased, or both; that the said ordinance of 1879, attempting to-extend the franchises and rights of said Detroit City Railway 30 years from November 14, 1879, was void after May 9, 1893, because the life of said grantee expired at that tipie.”
In 1892 the city of Detroit filed its bill in the circuit court for the county of Wayne, in chancery, against the-Detroit City Railway, the Detroit Citizens’ Street-Railway Company, and others, setting forth at length the matters which are substantially set forth in the petition herein, and praying that defendants might be enjoined from operating street railways in said streets after the 9th day of May, 1893. The said cause was afterwards removed to the circuit court of the United States for the Eastern District of Michigan, in equity, where a decree was finally entered in accordance with the prayer of the bill. City of Detroit v. Detroit City Ry. Co., 60 Fed. Rep. 161. Defendants took the case to the court of appeals, where it was heard upon its merits; and in October, 1894, a decree was entered reversing the decree of the circuit court, and dismissing the bill. 64 Fed. Rep. 628, 12 C. C. A. 365.
Why must not the question here sought to be raised by quo warranto be regarded as res judicata as against the moving parties, the city of Detroit and certain of its citizens? Under its charter, the city of Detroit has the charge and supervision of the streets of that city. It has the power to establish, open, widen, extend, straighten, alter, vacate, and abolish streets; to clean, grade, pave, repair, and improve the same; to prohibit and prevent incumbering or obstructing highways; to remove incumbrances froim such streets; and to control, prescribe, and regulate thei manner in which streets within the city shall be used and enjoyed. In the very act containing the grant to the, street-railway company, the supervision and control, by cities and other local municipalities, over streets and highways, is recognized,- and the exercise of the right granted is made dependent upon the consent of the local entity. If a street-railway company is operating its system upon the streets of the city of Detroit in the absence of a valid and binding consent granted by the city, the municipality is certainly a proper party, if not the proper party, to take proceedings to enjoin such operation, not only by virtue of its control over the streets, but also because the power to consent involves the-authority to prevent. The municipality moves in such case, not as a proprietor, but in its representative capacity, — as the representative of the public, — as the proper party to complain of the unauthorized use of such streets. The only question in issue is as. to the validity of the consent granted.
Counsel for the petitioners say in their brief that—
“ This application is made by the municipal authorities of the city, who are the trustees of the public, for the-protection of the interests of the public in the streets.”
Again they say:
“In this case the municipality itself makes the complaint. It is vested with the control of the streets in the interest and for the protection and benefit of the public. It is hindered and prevented from the exercise of such control by the acts of the railway company.”
The bill in the case in the United States court was filed by tbe same authorities, in precisely the same capacity, and to reach the same result. Can the adjudication, then, be avoided by the simple addition of individual members of the body comprising the beneficiaries? If so there will be no end to the litigation. In the case of Clark v. Wolf, 29 Iowa, 197, cited in Wells on Res Adjudicata (section 136), it was held as to a county — and the same principle would apply to a city — that a judgment against it, or its legal representatives, in a matter of general interest to all the people thereof, as one respecting the levy and collection of a tax, is binding, not only on the official representatives of the county named in the proceeding as defendants, but upon all the citizens thereof, though not made parties defendant by name. This must be the true rule as to matters of public concern, when the proper representative of the public has moved or has been made a party to the proceeding.
If the authority to consent to the use of its streets be regarded as a delegation of power to the municipality, and the authority over the streets be also considered as a delegation of power to the city, the municipality must be regarded, as is said in Railway Co. v. City of Belleville, 47 Ill. App. 388, as “related to the State as its agent," in so far, at least, as to conclude the State by litigation had in good faith respecting the subject-matter. Again, the State has regarded the matter of consent as one of purely local concern. A controversy arose between the city of Detroit and the Citizens’ Railway Company as to whether the consent of the city had been given in such a manner .as to be available to the present company and binding upon the city, and the city appealed to the courts, where the matter has been determined. The only question litigated was whether the consent given survived to the present company. In a proceeding instituted by the municipality, a court of competent jurisdiction has determined that matter in favor of the company, and that determination is conclusive upon all parties concerned.-
The order to show cause must be denied.
Long, Grant, and Montgomery, JJ., concurred with McGrath, 0. J. | [
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North, C. J.
This suit in chancery was instituted by plaintiff for the purpose of clearing cloud from the title of a parcel of land located on the shore of Runyan lake in Tyrone township, Livingston county. The parcel is known as “outlot B” of the plat of Runyan Lake Point, which plat is located on section nine of the township. Plaintiff’s claim of title by adverse possession was sustained by the circuit court. Prom the decree granting plaintiff the relief sought, defendants have appealed.
The facts and circumstances in consequence of which plaintiff asserts title by adverse possession áre, in brief, as follows: In 1911 William W. Watson was one of two grantees in a deed from Catherine Angus which purported to convey title to a certain described portion of the southwest quarter of the northeast quarter of section 9 of Tyrone township. In 1918 the other grantee conveyed his interest to Watson. The record seems to indicate that the southwest quarter of the northeast quarter of section 9 was owned bj^ a party by the name of Angus. As a matter of fact the parcel in question is located on the southeast quarter (not southwest quarter) of the northeast quarter of said section. This error in description, which was discovered by making a survey in 1932, obviously came about from the erroneous understanding or assumption of the parties that the point of land conveyed extended westerly out into the lake far enough so that the land (outlot B) was part of the. southwest quarter of the northeast quarter. Instead it was in the southeast quarter of the northeast quarter of section 9. Prior to 1911 this property was wild land and inaccessible except by crossing the lake, the waters of which bounded the property on all sides except to the east. As early as 1912 or 1913 an ordinary farm wire fence was built along the easterly boundary line of this property. This fence marked the easterly boundary line of the parcel for many years and was finally replaced by a picket fence which was there at the time the case was tried. Not later than 1913 Watson to some extent cleared the brush and undergrowth from this point of land and erected thereon a cottage. This building still remains upon the property. One of the witnesses described it. as follows:
“You could see that cottage from all around the lake, through three sides, from the south, north and west. * * * It wasn’t no up-to-date cottage at the time it was built, but it was a comfortable cottage inside at the time I was there. It was made from slabs from the mill.”
William Watson died August 18, 1932. There is abundance of testimony to establish the fact that from season to season Mr. Watson either occupied this property as a summer cottage or that others under him had possession. There is also testimony that Mr. Watson sometimes went to the cottage and would spend a week at a time when he was fishing on the lake during the winter season. He lived in the village of Fenton, only a few miles from the lake. The exact dates or duration of the various periods of occupancy are not fully or definitely disclosed by the record; but it clearly appears that from 1913 until his death in 1932 Mr. Watson, either in person, or his tenant or contract vendee used the property for the purposes for which it was developed as frequently as they saw fit, and that their right to do so was not questioned. At the time of his death plaintiff herein was the wife of William Watson; and by the terms of his will which was probated in Livingston county all of his property,, both real and personal, passed to plaintiff herein. For a number of seasons a Mr. Bryant Gf. Marble occupied tbe premises for a greater or less length of time as a tenant of Mr. Watson. In 1924 Mr. Bryant Gr. Marble purchased the property on a contract from Mr. and Mrs. Watson, but this contract contained the same erroneous description of the land as was embodied in the deeds to Watson. Mr. Marble, as contract vendee of Mr. Watson, continued to occupy and utilize the property in practically the same manner it had theretofore been used until this suit was started in December, 1935.
The circumstances under which defendants assert title to this property are as follows: They were interested in the purchase of property adjacent to the shore of a lake which could be developed as cotfage property for summer use. Defendants considered several pieces of land owned by Harry W. Croft, including the southeast quarter of the northeast quarter of section nine of Tyrone township. In May, 1931, defendants entered into a contract with Mr. Croft to purchase the land just above described; and substantially a year later defendants received a deed from the administratrix of the estate of Mr. Croft, he having died in the meantime. In 1932 defendants had the land surveyed and platted. It is admitted by plaintiff that defendants through the Croft deed became possessed of the record title of the land last above described, which includes “out-lot B” in controversy in this suit. Defendant Bowers testified that, at the time they bought this land,
í < There was a little shack on the end of the point of land, looked kind of like a log cabin. * * * There was no one in this shack, it was a plain little cabin. * * * I saw this cabin. That was before we purchased this property. We found some equipment, but we notified the people that claimed to own it. There was some equipment, but just what was there I couldn’t say. I went down and looked at that property in 1931. I came in with a boat. That was before we had our deed. We had already made an option to purchase before I went there.
“Q. There was enough there to warn everybody someone else was claiming some interest in the land, before you purchased?
“A. Possibly, but there was no one there, there wasn’t any equipment there of • any consequent value.
“Q. As a matter of fact you never figured that you owned that point until after Clay Gordon, the county surveyor, made that survey and found that section line ran past (west of) the point?
“A. I wouldn’t say that. We didn’t know exactly where our lines would be until we had it surveyed, that is true. * * *
“Q. You never tried to find out if anyone owned that piece of land out there ?
“A. Nobody came to me representing themselves as owning it, no.
“Q. You saw the furniture there?
“A. I notified them as soon as I found it there. I notified them their stuff was there. I gave them four or five months’ time to take their stuff before he (a man working for defendants) moved in there. * * * I gave the notice as soon as the survey was completed by the surveyor. * * * We notified the Marbles where the line was. They expressed a willingness immediately to purchase this lot, they didn’t want to lose this lot.”
The requisites of acquiring title by adverse possession have been stated by this court in the following language:,
“Adverse possession, to give title, must be actual, continued, visible, notorious, distinct, and hostile possession, and a finding of adverse possession must set forth in explicit terms a state of facts that will satisfy the legal definition.” Simons v. McCormick, 202 Mich. 485, 494.
This record convincingly establishes such possession of “outlot B” by William W. Watson as vested him with title by adverse possession. Either he or his tenants actually occupied the property as continuously and in the manner that property of this type would normally be occupied. His cottage was there on the land continuously after 1913 or 1914. This parcel of land was fenced off from the adjoining lands which are owned by the persons through whom defendants claim title, and hence such -parties obviously had actual knowledge of Watson’s possession and apparent claim of ownership. Personal property of Watson’s vendee was in the cottage at the time defendants purchased; and their testimony rather clearly discloses they knew such property did not belong to their grantor. Someone else was in possession. For much more than the statutory period of 15 years the possession of William W. Watson and those who hold under him had all of the elements requisite to acquiring title by adverse possession; and such title ripened in Mr. Watson prior to his death in 1932. The circuit judge correctly decreed title by adverse possession was in plaintiff.
Contention is made in appellants’ brief that this bill to clear cloud from title cannot be maintained by plaintiff, who they assert was not in possession of the land at the time suit was started against defendants, and who also assert they were then in possession through a vendee in a land contract entered into by him with defendants as vendors. The record discloses that the circuit judge had this ques tion in mind. It is a necessary inference from his decree that he found against defendants on this phase of the ease. Review of the record satisfies us that in this particular also the holding of the trial judge was correct.
The decree entered in the circuit court is affirmed, with costs to appellee.
Read, Wiest, Butzel, Bushnell, Sharpe, and Toy, JJ., concurred. Potter, J., did not sit. | [
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] |
Tot, J.
Plaintiffs appeal from a decree of the circuit court in chancery granting motion of defendants and dismissing plaintiffs’ bill of complaint.
In their bill of complaint the plaintiffs allege that they were owners of a certain house and lot in the city of Flint and that in November, 1928, they secured a loan from the defendant Oakland Mortgage Company and that a mortgage to secure said loan was made to the defendant Investors Syndicate. They allege that at the time of giving said mortgage the defendants deducted $244.53 as charges for making such loan, although the interest rate on said mortgage was seven per cent. They allege that they were charged interest upon interest and that illegal interest charges were deducted by defendants on many occasions when plaintiffs made payments upon said mortgage; that defendants commenced foreclosure proceedings and that defendant Investors Syndicate secured a sheriff’s deed after foreclosure sale on August 9, 1933, and that the deed was given for the sum $3,605.16. They allege that the period of redemption expired August 9, 1934; that plaintiffs still have possession of property and have been paying rent to defendants in the amount of $30 per month since the expiration of the redemption period; that they had been led to believe that the Home Owners Loan Corporation bonds applied for by them would be accepted by defendants before the period of redemption expired; that the Home Owners Loan Corporation offered $2,700 which the defendants refused. Plaintiffs alleged:
“The defendants told the plaintiffs that they would not lose the property and led them to believe that they would have nothing to fear, and were misled and lulled by the defendants in not acting to protect their rights before the period of redemption expired. In fact with, the last week the defendants have held out the hope of the Home Owners Loan Corporation loan being completed. That the defendants did not reject the loan until after the period of redemption expired. Thus the plaintiffs were prevented by the defendants from acting sooner to protect their property. ’ ’
Plaintiffs seek an accounting, moratorium relief, cancellation of the alleged usurious and illegal charges, and to be allowed to redeem by paying the actual amount due and to have the foreclosure set aside. Defendants moved to dismiss the bill and dissolve the temporary injunction which had been issued restraining eviction, on two stated grounds, namely: that because plaintiffs did not file their bill of complaint until several months (7) after expiration of the redemption period they are not entitled 'to relief under the Michigan moratorium statute; and that plaintiffs were not in a position to raise the question of usury after the expiration of the period of redemption.
The court granted the motion.
Plaintiffs in their brief, say:
‘ ‘ There is only one question involved in this case:
“A. Inasmuch as the defendants fraudulently led the plaintiffs to disregard their rights until after the period of redemption had expired, may the plaintiffs still obtain relief, either by an accounting with an opportunity to redeem, being given credit for illegal charges, bonuses and interest or under the moratorium. ’ ’
Defendants counter by saying that the allegations of fraud relied on by plaintiffs are conclusions and hence not properly pleaded. The motion to dismiss, however, was not based upon this ground, therefore we will not here consider it. Plaintiffs allege fraud. They are entitled to a hearing thereon. Had de fendants before the trial court raised the point now presented, namely, the insufficiency of the fraud allegations, the plaintiffs on proper showing would have been entitled to amend. Not having raised the point below, we will not consider it here. As presented to us, the bill alleges ground for equitable relief based on fraud. Therefore the order dismissing such bill is reversed and set aside, with costs to plaintiffs.
Fead, Wiest, and. Sharpe, JJ., concurred with Toy, J. | [
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] |
Toy, J.
Defendants review by certiorari the order of the department of labor and industry, awarding plaintiff compensation for total disability arising from an injury occurring on March 7, 1935.
Appellants present one question for review, namely, did the accident arise out of and in the course of plaintiff’s employment.
Nine years before the injury plaintiff was hired by the then cashier of the Loan & Deposit State Bank in Grand Ledge as a janitor for the bank. Since that time he has received from the bank its check of $15 per month for his services. Three months before the accident Rutgers Alexander employed plaintiff to do the janitor work of the Alexander Block, a building in Grand Ledge owned by the Alexander estate, which employment plaintiff undertook in addition to his duties as janitor of the bank, and for which he received the sum of $15 per month. Mr. Alexander was, at that time, cashier of the bank and also manager of the estate. Plaintiff was paid for his services separately, receiving each month, one check from the bank and one check from the estate. Neither position was a “full time job.”
On the date of the accident, plaintiff went to the Alexander Block, fired the boiler and carried ont the ashes. He then left that building and started for the bank bnilding, to perform janitor services there, and when abont four rods from the Alexander Block and about half a block from the bank building, and while on the public street, he fell and sustained the injury complained of. Plaintiff had no regular hours of employment, but performed his janitor work mainly at hours of his own selection, and fired the furnaces in the two buildings as required by varying weather conditions.
Plaintiff was not injured while employed as janitor for the Alexander estate. Neither was he performing his janitor duties for the bank at the time of his injury. He was proceeding from one job to the other. His injury did not arise out of or in the course of his employment as janitor of the Alexander Block, nor did it arise out of and in the course of his employment as janitor of the bank. We are constrained to hold therefore that the award made by the department of labor and industry is erroneous. See Reed v. Bliss & Van Auken Lumber Co., 225 Mich. 164. This case cites several authorities holding that an accident does not arise out of and in course of employment, when it occurs while employee is on his way to work, and before he has reached the premises of his employer, or when he is on his way home from his employment and has left the employer’s premises.
In Dent v. Ford Motor Co., 275 Mich. 39, Mr. Justice Wiest, speaking for the court said:
“In Morey v. City of Battle Greek, 229 Mich. 650 (38 A. L. R. 1039), this court applied the general rule excluding from the compensation law accidents to an employee in going to and leaving the place of employment. There are exceptions to this general rule, but, to constitute an exception, there must be such a causal relation between the accident and the time and place thereof as to be an incident of the employment in order to bring the same within one arising not .only out of employment but as well in the course of the employment.
“Defendant was not master, in any sense, of plaintiff’s movements upon the public street.
“We note the tendency of some decisions in other jurisdictions to extend the terms, ‘arising out of’ and ‘in the course of employment’ to accidents happening on the way to and from work, but we are not prepared to depart from our previous holdings and adopt the theory that the employment created the necessity of going to and returning from the place of employment and such necessity was the cause or occasion of the employee meeting with an accident on a public street.”
The award of the department of labor and industry is set aside and vacated, with costs to appellants.
North, O. J., and Fead, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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] |
Butzel, J.
Plaintiff on appeal denies the applicability of Act No. 98, Pub. Acts 1933, as amended (the moratorium act), to proceedings brought to foreclose a mortgage given to and owned by a joint stock land bank organized under the Federal farm loan act. Plaintiff claims that it is a Federal instrumentality organized under a law designed to relieve the financial distress of farmers and that additional relief may not be extended to them by moratorium legislation. We accept plaintiff’s contention that the State has no power to obstruct or interfere with the proper functions and legitimate operations of a bank organized under a national banking act. Davis v. Elmira Savings Bank, 161 TJ. S. 275 (16 Sup. Ct. 502); Owensboro National Bank v. Owensboro, 173 U. S. 664 (19 Sup. Ct. 537); Easton v. Iowa, 188 U. S. 220 (23 Sup. Ct. 288). The moratorium law, however, does not seek to regulate, obstruct or interfere with the proper functions and legitimate operations of national banks. In loaning money on mortgages, such banks subject themselves to the laws of the State which prescribe and regulate the remedy in foreclosure proceedings. That remedy may be altered, provided no substantial rights are taken away or contract obligations impaired. Following the decision in Home Building & Loan Ass’n v. Blais dell, 290 U. S. 398 (54 Sup. Ct. 231, 88 A. L. R. 1481), in which the Minnesota moratorium act was upheld, we held in Russell v. Battle Greek Limber Go., 265 Mich. 649, that the act did not impair the obligation of a contract, but merely granted an extension of time upon proper showing and equitable terms.
Our attention is called to the cases of Leuthold v. Des Moines Joint Stock Land Bank of Des Moines, Iowa, 197 Minn. 132 (266 N. W. 450), and Dallas Joint Stock Land Bank of Dallas v. Ballard (Tex. Civ. App.), 74 S. W. (2d) 297 (affirmed on other grounds in Ballard v. Dallas Joint Stock Land Bank of Dallas, 124 Tex. 113 (76 S. W. [2d] 1042). In each of these cases, however, the moratorium acts contained express provisions excluding Federal agencies from their operation. The Michigan moratorium act makes no such exception.
In McClellan v. Chipman, 164 U. S. 347 (17 Sup. Ct. 85), in discussing whether a Massachusetts statute invalidating preferences made by insolvent debtors applied to a national bank, the court stated the following rule which is applicable to the instant case:
“National banks ‘are subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the nation. All their contracts are governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional. ’ * * *
“No function of such banks is destroyed or hampered by allowing the banks to exercise the power to take real estate, provided only they do so under the same conditions and restrictions to which all the other citizens of the State are subjected, one of which limitations arises from the provisions of the State law which in case of insolvency seeks to forbid preferences between creditors.”
Again in First National Bank in St. Louis v. State of Missouri, 263 U. S. 640 (44 Sup. Ct. 213), where the State statute forbade banks from establishing branch banks, it was held that this statute also was applicable to a national bank, the court again stating:
“Clearly, the State statute, by prohibiting branches, does not frustrate the purpose for which the bank was created or interfere with the discharge of its duties to the government or impair its efficiency as a Federal agency.”
The decree of the lower court is affirmed, but without costs, the question being a public one.
North, C. J., and Fead, Wiest, Btjshnell, Sharpe and Toy, JJ., concurred. Potter, J., did not sit.
See 12 USCA, § 811 et seq.—Reporter.
See TJ. S. Const, art. 1, § 10; Mich. Const. 1908, art. 2, § 9. | [
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Fead, J.
Plaintiff liad judgment for car demurrage. Defendant was denied recovery for money it had paid plaintiff under engine hire agreements, with claim of damage doubled under 2 Comp. Laws 1929, § 11035.
For many years defendant has operated a sugar beet factory near Mount Clemens. Its plant is. about two miles from the main line of plaintiff’s railroad and is reached by a single spur track, from which run a number of stub tracks to defendant’s loading and unloading docks and bins.
The sugar manufacturing “campaign” lasts about three months from October 1st. During the campaign some 1,200 to 1,500 cars of beets are received by defendant, sometimes 100 in a day. The rest of the year is quiescent. It is conceded that both intrastate and interstate commerce is involved in the action.
For some 20 years the parties have made an engine hire contract annually for the campaign. The agreement recites that “the Grand Trunk as a common carrier, serves the plant of the Sugar Company;” that “in the successful operation of its plant, the Sugar Company requires considerable service of a locomotive engine and full crew and desires that the Grand Trunk furnish the same;” and provides that the Grand Trunk agrees to furnish its engine and crew “for the purpose of performing switching- service for the Sugar Company” for a period of not more than 12 hours per day; the crew to work on Sundays if requested by defendant ; the engine to tie up at the defendant’s plant each night; the crew to be considered employees of the Grand Trunk and subject to its rules and regulations “when performing said switching service for the Sugar Company; ’ ’ the Grand Trunk to fuel and oil the engine and pay the crew; the Sugar Company to indemnify the Grand Trunk from damages, etc., arising out of the performance of the contract or condition of the track, etc.; defendant to pay the sum of $8 per hour, with a minimum of- $48 per day; the contract to run for five months, with right of defendant to terminate it upon 60 hours’ notice.
The engine was employed in hauling cars from the main line, spotting them at the unloading docks and bins and the loading places, hauling- out empties and loaded cars, switching cars from place to place at the plant for loading or unloading, moving a clam-shell about, and was sometimes idle. In other words, cars were moved as the operations required. Defendant gave few directions to the crew but that it had the. contract right to control the car movements at the plant cannot be doubted.
The usual place of delivery was at. the unloading bins or docks at defendant’s plant. Plaintiff had a published switching tariff of $3.15 per car movement.
Defendant’s contention is that, as spotting the cars at the docks or bins is covered by the line haul tariff and the intra-plant movements by the switching tariff and no other service was contemplated by the engine hire agreement, the contract was in violation of the Federal and State commerce acts, consequently was illegal for want of consideration and the money paid-thereunder- may be recovered with the statutory penalty.
Defendant relies largely on Chesapeake & Ohio R. Co. v. Westinghouse, Church, Kerr & Co., Inc., 270 U. S. 260 (46 Sup. Ct. 220), where the court held illegal, as without consideration and as affording an undue preference, an engine hire agreement which, however, so far as the opinion shows, was designed only to complete the delivery which the carrier Lad contracted to make and which was included in its haul tariff.
This case presents the additional and different factor of intra-plant switching, which is no duty of a common carrier, is not a part of “transportation,” Terminal Allowance for Switching at Humboldt, Kan., 192 I. C. C. 67, 70, and is the subject of private contract, Grasselli Chemical Co. v. Director General, 81 I. C. C. 562, American Smelting & Refining Co. v. Railroad Co., 168 C. C. A. 83 (256 Fed. 737).
Whether the services contemplated‘in the engine hire agreement were identical with those covered by the tariffs is a question of specific fact, not a mere matter of resemblance. The tariffs cover the usual and ordinary services of a carrier, which has some regard for its own cost and convenience and must have regard for the needs of other shippers. The carrier owes no legal duty to spot cars solely at the shipper’s convenience, nor does a published switching tariff obligate it to conduct intra-plant movements of cars to the sole end of efficient operation of the plant. Timken Roller Bearing Company Terminal Allowance, 209 I. C. C. 441.
The engine hire agreement at bar provided for defendant a special and superior service not contemplated by the tariff, which placed engine movements under control of defendant and enabled it to direct them at its own convenience and to the efficient and profitable conduct of its plant, without the delays and uncertainty incident to ordinary traffic operation. In effect, it converted the local situation from one of railroading to one of plant operation. .Practices of Carriers Affecting Operating Revenues or Expenses — Terminal Services, 209 I. C . C. 11. The distinction is recognized, by way of contrast, in the Chesapeake Case, p. 266:
“The service by special engine and crew contracted for and given was not spotting solely for the convenience of the shipper. It was the spotting service covered by the tariff. ’ ’
Defendant argues at length that cases covering “interchange yards or tracks” are not in point.
We need not discuss this contention because the essential question is one of character of the service covered by the contract. In our opinion, the contract provided for a service not covered by plaintiff’s duty as a common carrier, Sasinowski v. Railroad Co., (C. C. A.) 74 Fed. (2d) 628; Pennsylvania R. Co. v. M. McGirr’s Sons Co., (C. C. A.) 287 Fed. 334; Grasselli Chemical Co. v. Director General, supra; Practices of Carriers Affecting Operating Revenues and Expenses — Terminal Operations, supra. Defendant’s counter-claim for return of rent paid was properly disallowed.
Defendant also challenges the judgment for demurrage.
Plaintiff filed bill of particulars of the demurrage, verified by oath. At the hearing, the court held the pleadings sufficient, under Court Eule No. 20, § 5, to constitute a prima facie showing of the facts of plaintiff’s case. In opinion at the close of hearing, however, the court, after closer inspection of the pleadings, held defendant’s answer sufficient under the rule to put plaintiff to its proof. On motion of plaintiff, the court reopened the case and took testimony on demurrage. Defendant contends this was an abuse of discretion. We think the court decently could not have done otherwise.
Plaintiff claimed demurrage under an “average agreement” and the court computed it in accordance with section D of rule 3 of the demurrage tariff, which covers cases where the industry does not do its own switching. Section E of rule 3 applies to industries doing their own switching. Rule 7 applies to cases not subject to an average agreement. Plaintiff claimed under all or the applicable rule. Defendant alleges as error that the court refused to compel plaintiff to elect the rule of computation but it cites no authority for its contention and we know of no rule which requires such election. Having shown the facts, plaintiff was entitled to the rule of damages which fits them. Nor was defendant injured because the court adopted the rule most favorable to it.
Defendant also complains that the testimony does not support the award of demurrage damag'es. It did not assign as error that the judgment was not supported by testimony nor against the preponderance or weight of the evidence nor did counsel attempt a computation which would indicate the specific error claimed nor the true amount due. Nor did defendant produce its records to show the facts. It is sufficient to say that there was testimony supporting the verdict.
Judgment affirmed, with costs.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe and.Toy, JJ., concurred. Potter, J., did not sit. | [
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Toy, J.
On June 27, 1933, the circuit court in chancery entered its decree of divorce in this cause. The marriage relation had existed since 1913. In its decree the court disposed of the property rights of the parties in accordance with an agreement made between the parties and dated June 24, 1933. In pursuance with such agreement the decree provided:
"It is further ordered that in addition to said back alimony above provided, the defendant shall pay to the friend of the court, as permanent alimony for the maintenance and support of the plaintiff and for her use and benefit, the further sum of $3 per week for a period of 80 weeks, commencing the 24th day of June, 1933, and that when said defendant has fully paid said sums as in this paragraph provided, the said defendant shall thereupon be released from any and all further or future claims for the support of the plaintiff herein as alimony or otherwise.”
Defendant made the payments ordered.
On March 28, 1935, plaintiff filed her petition to amend and modify that portion of the decree above quoted so as to provide for additional permanent alimony for her support and maintenance. The motion was opposed by defendant. The court after receiving a report from the friend of the court of Wayne county relative to the respective financial and physical conditions of the parties and after hearing testimony in open court, on February 4, 1936, entered its order amending the decree of divorce as follows:
“It is further ordered, adjudged and decreed that the defendant pay to the friend of the court as permanent alimony for the support and maintenance of the plaintiff and for her use and benefit the sum of three dollars per week payable weekly commencing September 23,1935, until plaintiff remarries or until further order of the court.”
Defendant appeals from such order and contends that the court is without power to amend its decree to provide for further alimony because the original decree, in accordance with the property settlement agreement, provided that when defendant had fully paid the amounts specified in the agreement and decree he should be released from all further and future claims for the support of plaintiff.
The circuit judge in modifying the alimony provision of the original decree, based his decision upon the case of Mulcahy v. Mulcahy, 270 Mich. 520. An examination of the decree in that case, however, discloses a provision, the like of which is not included in the decree before us. There the original decree contained a provision reserving to either party the right to apply further to the court as occasion might require. No such provision is contained in the instant decree, but on the contrary the decree expressly provides that when the defendant has paid the alimony therein provided he shall “be released from any and all further or future claims for the support of the plaintiff herein as alimony or otherwise.”
The decree makes final provision for alimony between the parties, without any reservation of a future right to modify. The defendant has made the required payments. Such decretory provision, after performance, is final and binding upon the parties. The order of the circuit judge amending the decree is reversed and set aside, without costs.
North, C. J., and Fead, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred. Potter, J., did not sit. | [
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P. J. Glennie, J.
This case is before the Court on appeal by plaintiff upon denial of attorney fees and costs. Defendant Michigan State University cross-appeals on the issues of whether information on students’ names and addresses is exempt from disclosure under the Family Educational Rights and Privacy Act of 1974, 20 USC 1232g, and whether the Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq.; MSA 4.1801(1) et seq., requires a public body to give to private persons, at a nominal cost, items of proprietary interest owned by the public.
The history of this case began when plaintiff filed a complaint on October 6, 1978, in Ingham County Circuit Court, alleging that the defendants had violated the Michigan Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., by refusing to give the plaintiff a copy of a computer tape containing student information. Defendants answered that they would provide plaintiff with a computer print-out of the information contained on the tape, if the information was not exempt from the FOIA under § 13(l)(e).
On October 18, 1978, the trial court ordered defendants to create a duplicate magnetic tape containing the students’ names and addresses and to give the tape to the plaintiff until the conclusion of the November 1978, election, at which time the tape was to be returned to defendants. Plaintiff was ordered to pay reasonable costs for duplication. The trial court denied attorney fees, costs, disbursements or damages for the reason that the defendants’ denial of the request for the tape was not arbitrary or capricious and that the matter presented involved a valid question of first impression which could have a significant effect on the rights of third persons.
The FOIA explicitly outlines the conditions un der which attorney fees and costs shall be awarded to the plaintiff.
MCL 15.240; MSA 4.1801(10) reads, in part:
"(4) If a person asserting the right to inspect or to receive a copy of á public record or a portion thereof prevails in an action commenced pursuant to this section, the court shall award reasonable attorneys’ fees, costs, and disbursements. If the person prevails in part, the court may in its discretion award reasonable attorneys’ fees, costs, and disbursements or an appropriate portion thereof. The award shall be assessed against the public body liable for damages under subsection (5).
"(5) In an action commenced pursuant to this section, if the circuit court finds that the public body has arbitrarily and capriciously violated this act by refusal or delay in disclosing or providing copies of a public record, the court shall, in addition to any actual or compensatory damages, award punitive damages in the amount of $500.00 to the person seeking the right to inspect or receive a copy of a public record. The damages shall not be assessed against an individual, but rather be assessed against the next succeeding public body, not an individual, pursuant to whose function the public record was kept or maintained.”
Plaintiff contends that, since he prevailed in the action, § 10(4) required that the court order the defendants to pay attorney fees and costs. Originally, plaintiff requested a copy of the complete tape. The trial court ordered defendants to produce a copy of the names and addresses only and restricted its use to some extent. Under such circumstances, the trial court concluded that the plaintiff had only prevailed in part.
In cases of partial success, § 10(4) allows for the award of attorney fees and costs in the trial court’s discretion.
It is our opinion that the trial court did not abuse its discretion. We concur with the trial court’s decision denying attorney fees, costs, compensatory and punitive damages.
In defendants’ cross-appeal, we are asked to decide a question of first impression concerning the Family Educational Rights and Privacy Act (20 USC 1232g), specifically: whether that act prohibits the university from releasing confidential information about 44,000 students to the general public in a format and for uses not expressly consented to by those students.
Michigan State University is a constitutional body corporate, established pursuant to Const 1963, art 8, § 5. The university is charged with the responsibility of providing educational opportunities to the persons currently enrolled.
Plaintiff is a private individual who requested a copy of a university computer tape and the file layout of that computer tape. The tape contained the names, addresses, phone numbers, and other items of information with respect to students enrolled at Michigan State University.
Michigan State University annually prints a student directory which contains the names, local and permanent addresses, local phone numbers, year, major and numerous other items of student information. A computer tape is developed by the university in order to assist the printer in the mechanical printing process.
The trial court ruled that the students’ constitutional right to privacy would not be violated if only their names and addresses were released. The court further ruled that the FOIA required that the university duplicate and deliver to plaintiff a copy of the computer tape, rather than a computer print-out.
This issue requires interpretation of the Family Educational Rights and Privacy Act of 1974 (20 USC 1232g), and the regulations published pursuant thereto. Plaintiff contends that any document "prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function * * *” is a public record. MCL 15.232(c); MSA 4.1801(2)(c). Plaintiff further claims he is entitled to the computer tape under the FOIA, MCL 15.233(1); MSA 4.1801(3):
"Upon an oral or written request which describes the public record sufficiently to enable the public body to find the public record, a person has right to inspect, copy, or receive copies of a public record of a public body, except as otherwise expressly provided by Section 13.”
Michigan State University, because it is a recipient of Federal funds, falls within the purview of the Family Educational Rights and Privacy Act (Buckley Amendment; PL 90-247, Title IV, § 438 as amended; 20 USC 1232g, 45 CFR 99.1 et seq.).
The latter statute serves two functions. First, it provides access to student records by students and their parents. Second, it establishes the privacy of those records. The information contained in the records is classified as being educational, personally identifiable or directory information. 45 CFR 99.3 defines each type of record. The names and addresses requested by the plaintiff fall into two of these classifications: personally identifiable information and directory information.
Pursuant to 45 CFR 99.30, educational institutions are required to follow an explicit procedure before releasing any personally identifiable student information:
"(a)(1) An educational agency or institution shall obtain the written consent of the parent of a student or the eligible student before disclosing personally identifiable information from the education records of a student, other than directory information, except as provided in § 99.31.
"(2) Consent is not required under this section where the disclosure is up to (i) the parent of a student who is not an eligible student, or (ii) the student himself or herself..
"(b) Whenever written consent is required, an educational agency or institution may presume that the parent of the student or the eligible student giving consent has the authority to do so unless the agency or institution has been provided with evidence that there is a legally binding instrument, or a State law or court order governing such matters as divorce, separation, or custody, which provides to the contrary.
"(c) The written consent required by paragraph (a) of this section must be signed and dated by the parent of the student or the eligible student giving the consent and shall include:
"(1) A specification of the records to be disclosed.
"(2) The purpose or purposes of the disclosure, and
"(3) The party or class of parties to whom the disclosure may be made.
"(d) When a disclosure is made pursuant to paragraph (a) of this section, the educational agency or institution shall, upon request, provide a copy of the record which is disclosed to the parent of the student or the eligible student, and to the student who is not an eligible student if so requested by the student’s parents.”
45 CFR 99.30 thus requires that the university secure from the parent, or student over 18 years of age, a written, dated, signed document which specifies the disclosable data, the purpose of the disclosure, and the parties to whom the disclosure may be made. Michigan State University did not follow the procedure with respect to the personally identifiable information sought by the plaintiff.
The plaintiff asserts, however, that the univer sity complied with another section of the statute, given that the names and addresses also constitute directory information and that the regulation describing the procedure for release of directory information was followed.
45 CFR 99.37 outlines the procedure to be followed by educational institutions prior to releasing directory information. It reads:
"(a) An educational agency or institution may disclose personally identifiable information from the education records of a student who is in attendance at the institution or agency if that information has been designated as directory information (as defined in § 99.1) under paragraph (c) of this section.
"(b) An educational agency or institution may disclose directory information from the education records of an individual who is no longer in attendance at the agency or institution without following the procedures under paragraph (c) of this section.
"(c) An educational agency or institution which wishes to designate directory information shall give public notice of the following:
"(1) The categories of personally identifiable information which the institution has designated as directory information;
"(2) The right of the parent of the student or the eligible student to refuse to permit the designation of any or all of the categories of personally identifiable information with respect to that student as directory information; and
"(3) The period of time within which the parent of the student or the eligible student must inform the agency or institution in writing that such personally identifiable information is not to be designated as directory information with respect to that student.”
45 CFR 99.37 thus requires the educational institution to give public notice of the type of information to be published, the right to forbid disclosure, and the time period within which a student or parent must act to forbid disclosure.
Defendant Michigan State University complied with the regulation insofar as publication of the student directory is concerned. Michigan State University contends, however, that the approval of the student can be construed only as applying to the publication of the student directory and not to the release of the magnetic tape, for which the signed permission of the student is required under 45 CFR 99.30.
The trial court held that the students’ names and addresses were included within both definitions when it stated:
"Standing alone, a name and address are not types of data which would easily or clearly trace, point out or mark an individual. Section 99.3 mentions other 'personal identifiers’ around which the law cloaks privacy.
"When compared with 99.3’s definition of directory, it is noted that name and address are also listed as directory-type data. Such interchangeableness among definitions tends to signal the data’s nature as sometimes deserving a higher cloak of privacy and sometimes a lower. Such is not the case with other personal or directory data.
"Without question, it is a difficult line to draw, but on these facts, the Court holds such data to be directory, thus Section 99.37 applies.”
That Congress recognized names and addresses as included within both classes of information is reflected in the wording of the regulations. 45 CFR 99.30(a)(1) requires written consent of the parent or student before disclosure of personally identifiable information other than directory information. This exempts from the written consent requirement data which is included in both definitions, so long as no purely personal information is released. Names and addresses only thus would not fall under 45 CFR 99.30(a)(1).
The notice published in the student handbook and Michigan State University Bulletin complies with the requirements of 45 CFR 99.37(c). It would therefore appear that the trial court’s order was not contrary to the Family Educational Rights and Privacy Act of 1974.
Another question which arises is whether the release of such information to plaintiff constituted a violation of the students’ right to privacy. The FOIA, § 13(l)(a), exempts from disclosure "[information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy”. The trial court determined that the release of the names and addresses was justified on the basis that the information released would be used to inform the students of political issues:
"There can be no question but that the disclosure of a person’s name and address does constitute an invasion of privacy. Disclosure of the magnetic tape would involve a release of each student’s address; information the student might wish to remain secret or selectively release [sic]. One consequence of any disclosure is that a student will be subject to unsolicited or unwanted mail and possibly offensive material. * * *
"The purpose for which Plaintiff seeks the magnetic tape is to assist in a political campaign mailing. Clearly, informing the electorate of candidates’ views and qualifications helps voters make intelligent choices in the democratic process. It is not a commercial purpose but political and necessary to the workings of a free society.
"On balance, while an invasion occurs, it is warranted in the public purpose. Exemption (a) does not prevent disclosure of the magnetic tape.”
In International Business Machines Corp v Dep’t of Treasury, 71 Mich App 526, 535; 248 NW2d 605 (1976), the Court, in discussing disclosure provisions, stated:
"The Michigan disclosure provisions are essentially an abbreviated version of the Federal Freedom of Information Act (FOIA), 81 Stat 54 (1967), 5 USCA 552. The close similarity between the Federal and state acts’ language makes constructions of the FOIA by the Federal courts persuasive in construction of our own disclosure requirements. Citizens for Better Care v Dep’t of Public Health, 51 Mich App 454, 463; 215 NW2d 576 (1974), lv den, 392 Mich 758 (1974).”
In Citizens for Better Care, the plaintiff sought disclosure of nursing home records kept by the Michigan Department of Health. The issue of patient privacy was resolved on the basis that the patients’ privacy could be safeguarded by deleting from the reports, prior to disclosure, any information indicating the identity of specific patients. 51 Mich App 454, 470. Such a solution is not possible in the present case since plaintiff specifically requested the names and addresses of Michigan State University students.
Two Federal cases have considered the question of whether the release of names and addresses constituted an unwarranted invasion of privacy. In Getman v National Labor Relations Board, 146 US App DC 209; 450 F2d 670 (1971), two law professors wanted a list of names and addresses of employees eligible to vote at NLRB elections. The NLRB denied their request, claiming that such a disclosure would constitute an invasion of the privacy of the voters. The court disagreed and stated:
"[0]ur first inquiry is whether disclosure of the names and addresses of employees constitutes an invasion of privacy and, if so, how serious an invasion. We find that, although a limited number of employees will suffer an invasion of privacy in losing their anonymity and in being asked over the telephone if they would be willing to be interviewed in connection with the voting study, the loss of privacy resulting from this particular disclosure should be characterized as relatively minor. Both the House and Senate reports on the bill which became the Freedom of Information Act indicate that the real thrust of Exemption (6) is to guard against unnecessary disclosure of files of such agencies as the Veterans Administration or the Welfare Department or Selective Service or Bureau of Prisons, which would 'intimate details’ of a 'highly personal’ nature. * * *
"In determining whether this relatively minor invasion of privacy is 'clearly unwarranted,’ we must also weigh the public interest purpose of appellees’ NLRB voting study, the quality of the study itself, and the possibility that appellees could pursue their study without the * * * lists.” (Footnotes omitted.) 146 US App DC 209, 213-214.
In Wine Hobby USA, Inc v United States Internal Revenue Service, 502 F2d 133 (CA 3, 1974), plaintiff sought a list of the names and addresses of persons filing for a permit to make wine for home use from the Bureau of Alcohol, Tobacco and Firearms. Plaintiff intended to send advertisements concerning its amateur wine-making equipment to the home wine-makers. The court held that the release of the names and addresses would constitute an invasion of privacy since the people on the list would be subjected to unsolicited and possibly unwanted mail. Since plaintiff was seeking the list for private commercial exploitation, no compelling public interest would be served by releasing the information. The pertinent language from that case is as follows:
"The disclosure of names of potential customers for commercial business is wholly unrelated to the purposes behind the Freedom of Information Act and was never contemplated by Congress in enacting the Act. In light of this failure by Wine Hobby to assert a public interest purpose for disclosure, we conclude that the invasion of privacy caused by disclosure would be 'clearly unwarranted,’ even though the invasion of privacy in this case is not as serious as that considered by the court in other cases, see e.g., Rose v Dep’t of the Air Force, 495 F2d 261 (2d Cir 1974). On balance, therefore, we believe that the list of names and addresses of the Form 1541 registrants is exempted from disclosure under § 552(b)(6) in the circumstances of this case.” (Footnote omitted.) 502 F2d 133, 137.
A person seeking information under the Michigan Freedom of Information Act is not generally required to divulge the reason for the request. Where an invasion of privacy may occur, however, the person seeking disclosure is required to show that the benefit to the public interest in releasing the information outweighs the possibility of harm to the people involved.
Section 1 of the FOIA states that it is the "public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees * * *. The people shall be informed so that they may fully participate in the democratic process.” MCL 15.231(2); MSA 4.1801(1)(2). The list of names requested by plaintiff is not related to the affairs of government in such a way as to constitute a basis for official decisions on the part of the university. The release of these names and addresses and the other information contained in the student directory does not assist the general public in such a way as to permit them to fully participate in the affairs of government. The only reason plaintiff desired the information in the form requested was to develop a mailing list so that plaintiff could engage in a commercial enterprise of mailing notices for and on behalf of other parties who pay for the service. We do not believe that this purpose outweighs the invasion of the students’ privacy which would result, particularly where plaintiff had other means of disseminating information of a political nature without discovering the names and addresses of the students. Plaintiff could have passed out leaflets at the dormitories, at rallies, and in the streets of East Lansing. Plaintiff could have made a general mailing to the electorate in the name of "occupant”. Michigan State University has a radio and television station which plaintiff could have employed to convey such political views. Plaintiff could also purchase the student directory at a nominal cost, when it became available.
This issue was discussed in a recent Florida decision. Byron, Harless, Schaffer, Reid & Assoc, Inc v Florida, 360 So 2d 83 (Fla App, 1978). Florida has a public records act which would require public officials and employees to save all notes and memoranda and make such documents available to the public. The court was faced with a demand by a television executive and the attorney general for the release of notes made by a consultant firm hired to interview and select the director of a utility company owned by a public agency. The court construed the notes made by the consultant as public records within the meaning of the Florida statute. It became clear to the court that, upon examining the notes, much of the information was highly confidential. In refusing to make these records available to the general public pursuant to the applicable statutes, the Florida court made the following observations:
"In general application, Florida’s public records law and its companion, the open public meetings law, promote a state interest of the highest order. By promoting open government and citizen awareness of its workings * * * [the statutes] enhance and preserve democratic processes. Florida’s interest in opening governmental processes to public inspection has repeatedly been emphasized in decisions of our Supreme Court.
"When fundamental privacy interests secured by the due process clauses of the United States and Florida Constitutions are implicated, however, it is not enough that the statute generally serves a compelling interest in disclosure of public records. There must be a compelling state interest in the public revelation of the particular information in which the prospects would otherwise enjoy privacy. To override constitutional privacy interests, a countervailing state interest must exist and be compelling at the point where those interests collide. When the public interest is not sufficiently compelling to override constitutional privacy interests in the particular information sought, an intrusive statute 'must be narrowly drawn to express only the legitimate state interests at stake,’ [Roe v Wade, 410 US at 155; 93 S Ct at 728; 35 L Ed 2d at 178] or its general terms must be appropriately narrowed in judicial application.” (Footnotes omitted.) 360 So 2d 83, 97.
One other factor bears significantly on our decision. It is a well established principle of law that public funds may not be used to support a private purpose. To require the university to surrender property of commercial value to a private party, when the information required can be released without surrendering the public property, contravenes this established rule of law. Const 1963, art 9, § 18, Skutt v Grand Rapids, 275 Mich 258; 266 NW 344 (1936).
Neither the preamble to the FOIA nor its purpose states that it was the intent of the Legislature to surrender publicly-owned property free of charge to private enterprise. Arnold v Ogle Construction Co, 333 Mich 652; 53 NW2d 655 (1952), People v Stanley, 344 Mich 530; 75 NW2d 39 (1956), Butcher v Grosse Ile Twp, 387 Mich 42; 194 NW2d 845 (1972). The computer tape which plaintiff requested constitutes publicly-owned property of commercial value aside from the information contained thereon. Defendant thus should not have been required to provide plaintiff with such property.
In General Services Administration v Benson, 415 F2d 878, 880 (CA 9, 1969), the following principle of law was enunciated:
"In exercising the equity jurisdiction conferred by the Freedom of Information Act, the court must weigh the effects of disclosure and nondisclosure, according to the traditional equity principles, and determine the best course to follow in the given circumstances. The effect on the public is the primary consideration.”
It is evident there is a tendency to interpret the FOIA as a freedom of public records act. When a statute is so broad that it makes all information available to anyone for any purpose, the court has an obligation to narrow its scope by judicial interpretation.
It is our opinion that the computer tape is exempt from release under § 13(a) of the FOIA for the reason that the public purpose of dissemination of political views could have been accomplished by other means without invading the privacy of the individual students. The FOIA provides for freedom of information, not freedom to acquire valuable technological data which was developed at public expense, nor highly personal and sensitive information through records maintained by the university. Finally, release of the information would not further the purpose of the FOIA since plaintiff sought this information for commercial gain, not so that he might be able to monitor governmental affairs.
Reversed. No costs, a public question being involved. | [
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] |
North, C. J.
In this suit there are 10 plaintiffs, each of whom is a dentist licensed to practice in this State. The relief sought is that the defendant State board of dentistry be enjoined from “molesting or disturbing” plaintiffs in their use of their respective names under which, they are practicing dentistry; or from instituting criminal proceedings or proceeding to cancel or suspend the right of plaintiffs to practice dentistry because of the use of the names under which the respective plaintiffs are carrying on the practice of their profession. The hearing was upon bill and answer. The circuit judge dismissed plaintiffs ’ bill of complaint and they have appealed.
The bill of complaint discloses that plaintiff Raymond H. Dix conducts four dental offices in Detroit and one in Flint, under the name of “Dr. Dix Dentists.” Five other plaintiffs use substantially the same modification of their respective names. Plaintiff Treverton E. Lewis does business under the title of “Peerless Dentists.” Plaintiff William G. Zieve conducts each of his four offices under the style of “Dr. Zieve’s Modern Dentists.” The business of plaintiff J. Bain McGilvray, is carried on under the name of “Red Gross Dentists;” and that of plaintiff Gordon B. Sullivan as “Dr. G. B, Sullivan’s Practical Dentists.”
Each of the plaintiffs has been engaged in the dental profession for a number of years, some of them upwards of 30 years. Each employs “a varying number of * * * registered and licensed” dentists, and each alleges he has established a substantial and valuable business under the name or title he is using.
The practice of dentistry in this State is regulated by Act No. 235, Pub. Acts 1933. By its provisions the practice of dentistry in Michigan is placed “under the supervision of” the Michigan State board of dentistry, composed of seven members. The act forbids the practice of dentistry except by persons duly licensed, prescribes certain regulations, and provides for suspension or revocation of the license and for criminal prosecution of persons whose practice of dentistry is in violation of prescribed regulations. We quote in part sections 14 and 15 of the act:
“Sec. 14. No corporation shall practice or continue to practice, offer or undertake to practice or hold itself out or continue to hold itself out, as practicing dentistry, except where every person practicing dentistry under a firm name and every person practicing dentistry as an employee of another shall cause his name to be conspicuously displayed and kept in a conspicuous place at the entrance of the place where such practice shall he conducted, and any person who shall neglect to cause his name to be displayed as herein required shall be liable to a penalty of one hundred dollars. ’ ’
“Seo. 15. * * * It shall be unlawful for any person to practice dentristry or to operate or control as proprietor, manager or otherwise any room, office or parlor where dental work is done or contracted for or in any way to advertise the same under any false or assumed name, or under the name of a corporation, company, association, parlor or trade name or under any name other than that under ivhich his license was granted.”
The defendant board, acting through its secretary, served written notice on certain of plaintiffs which quoted sections 14 and 15 of the dental act and, following such quotation, stated:'
“The Michigan State board of' dentistry wishes to inform you that the above provisions must be adhered to, and expect that no later than November 1, 1934, corrections in your practice have been effected. The use of any other name, other than that which appears on your license will be considered a violation of this act. * * * It is also hereby intended’ that no reference be made to any previous title or name. ’ ’
It is rather obvious that by this notice the board intentionally conveyed to plaintiffs warning that parties so notified would be proceeded against as alleged violators of the dental act unless they discontinued carrying on their dental business under any other name than that under which they were respectively licensed.
The power of the State to regulate in a reasonable way the practice of dentistry is not challenged by appellants. But as set forth in their brief appellants urge:
‘ ‘ That section 15 of the dental law, if construed as the board construes it, is arbitrary, and unreasonable and therefore violative of the privileges and immunities, equal protection of the law, and due process clauses of the 14th amendment to the Federal Constitution, and of section 16 of article 2 of the State Constitution; * * * that, properly construed, the dental law, particularly section 15, does not prohibit an employing dentist from using the word ‘dentists,’ after his own name so long as he complies with the provisions of section 14 requiring the employees who are dentists to have their names conspicuously displayed as provided in the act.”
In amplification of appellants ’ contention we also quote from their bill of complaint:
“That in the case of the plaintiffs in which their own names are included as a part of. the name under which their respective dental offices are operated, said names are not false nor are they assumed names * * * and they show that the only truthful method of properly informing the public of the fact that other dentists are employed-by or associated with them is by the use of such names, for instance, as ‘Dr. MacDonald’s Dentists,-’ rather than of ‘Dr. MacDonald, Dentist, ’ and they further show that in so far as said -section 15 purports to prohibit plaintiffs from so revealing the truth, said section is therefore arbitrary, unreasonable and oppressive and therefore in violation of the aforesaid constitutional provisions.”
Concerning the practice of dentistry, and the statutory enactment now under consideration, we said in a recent decision:
“It is a well-known fact that in the profession of dentistry, the services rendered are personal and call for knowledge in a high degree and that to separate this knowledge from the power of control is an evil, the correction of which was attempted by the instant legislation. The evils which arise from divorcing the ‘power of control’ from ‘knowledge’ apply with equal force to a partnership as well as a corporation. * * * in the practice of a profession such as dentistry which has to do with personal privacy and where the licensee must possess skill and character, we think it is within the police power of a State to control and regulate the ownership and operation by a firm of a dental parlor as well as prescribe the qualifications of those who engage in its practice.” People v. Carroll, 274 Mich. 451.
The legislature evidently having in mind the nature of the profession it proposed to regulate undertook to provide conditions essential to regulation, to prevent deception, and to require a definite and accurate announcement to the interested public as to the individual identity of each dentist who was practicing in a dental office. To accomplish this the statute enacted requires, among other things, (1) that every person practicing dentistry as an employee of another shall cause his name to be conspicuously displayed at the entrance of the place where-such practice is conducted; and (2) that it shall be unlawful to practice dentistry or to operate a place where dentistry is practiced, by any person “under any name other than that under which his license was granted.”
The instant case concerns only alleged noncompliance with the latter of these two statutory requirements and whether this provision is a reasonable regulation of the practice of dentistry.
When properly construed, this latter clause does not impose upon those practicing the profession of dentistry a regulation that is either arbitrary or unreasonable. On the contrary, the provision is reasonably suited to the requirements of proper supervision of the practice of the profession and also incident to providing prospective patients with pertinent information. For example, one would be disinclined to patronize a dental office if it appeared by the name under which the business was carried on, or from the names conspicuously displayed at the entrance of the office that a dentist at whose hands he had received unsatisfactory service was operating in such office. Clearly for this reason it is both competent and proper that the legislature should forbid the carrying on of the profession of dentistry under an assumed or fictitious name, such as “Peerless Dentists,” “Red Cross Dentists,” “Dr. G. B. Sullivan’s Practical Dentists,” and “Dr. Zieve’s Modern Dentists.”
A closer and more difficult question is presented by those of plaintiffs who have been carrying on their profession under such names as “Dr. J. C. Toole, Dentists,” “Dr. J. R. Applegate’s Dentists” or “Dr. Dix, Dentists.” We can see no hardship or anything that is arbitrary or unreasonable in requiring one engaged in the profession of dentistry to put into the name under which he carries on his profession, the identical name under which he has a license to practice. There may be several Smiths or several Browns practicing dentistry in the same community. Obviously for the purpose of supervision, as well as conveying accurate information to prospective patients, it is helpful if not essential, that the exact name of the licensee appear. For that reason the statutory requirement is valid.
We think it follows that it is essential to full compliance with the statute that the exact name of the dentist, as embodied in Ms license, should be included in the name under which he carries on Ms professional work. And it is equally plain that the legislature intended to prohibit and has forbidden the use of any word or words as a part of the business name which are either “false” or “assumed.” However, it would be too narrow a construction of legislative intent to hold that a name, which otherwise conformed to statutory requirement, because it had affixed thereto some such word as “dentists,” “associates,” “employees,” or the like, was violative of the statutory provision, provided the appended word or words were not such as convey a false impression or mislead the public. But in every case compliance with the statute requires that the name under which the dentist is licensed must be included. It would not be contended that John Doe, a dentist, might not in his practice use the business title “John Doe, Dentist.” If he employed other dentists in his office a sign reading “John Doe, Dentists” would tend to accuracy, and be informative rather than deceptive. It would not violate the statute. Further, if John Doe desired to convey to the public that other dentists in his office were his employees and hence under his control as to quality of service, etc., he might well carry on his profession as “ John Doe’s Dentists. ’ ’ Such designation speaks the truth. It is not a false or assumed name, nor a “parlor or trade name,” and it accurately discloses the full name under which John Doe was granted his license, hence it must be held to conform to the statutory requirement.
Appellants’ assertion of vested rights claimed to have accrued to them from a long-established professional business and the expenditure of large sums of money in its development, cannot be sustained. A dentist enters upon the practice of his profession knowing it is subject to reasonable regulation by the State. He has no right to use, or by reference to continue to make use of, a type of business title which, in its exercise of reasonable regulation, the State has forbidden.
“And in that case (People v. Phippin, 70 Mich. 6) it was substantially held that no person, no matter how long he had been in the practice of his profession, had a vested right to practice medicine in Michigan.” People v. Moorman, 86 Mich. 433.
“The practice of medicine is subject to regulation under the police power of the State, and any reasonable condition or requirement may be imposed by the State upon those engaged in that profession.” People v. Cramer (syllabus), 247 Mich. 127.
Both in the circuit court and in this court the defendants have urged that the equity court has no jurisdiction to grant plaintiffs the injunctive relief sought; but instead that each of plaintiffs has an adequate remedy at law by urging as a defense his present contentions in event of legal proceedings being instituted against him. On this ground appellees assert the circuit judge’s dismissal of the bill of complaint should be affirmed. We are not in accord with this contention. The situation with which these plaintiffs were confronted threatened them with irreparable injury. The instant case falls within Michigan Salt Works v. Baird, 173 Mich. 655.
As to some of plaintiffs it is not possible from the record in this case to determine whether the names under which they are carrying on their profession comply with the requirements of the statute as here construed. ‘ Nor under the pleading’s can it be determined by this court whether plaintiffs, as in effect is alleged in paragraph 5 of their bill of complaint, were threatened by defendants with irreparable loss. By defendants’ answer this allegation in plaintiffs’ bill of complaint is both admitted and denied. The case must be remanded to the circuit court with direction to set aside the order dismissing plaintiffs’ bill of complaint, and to take such further proceedings therein as may be requisite for final disposition of the cause.
We do not review the propriety of the practice and procedure tolerated in this case under which these 10 plaintiffs, each having a separate cause of action, if any at all, have joined their suits in one bill of complaint. The parties litigant have not presented this question in either court.
On this appeal neither plaintiffs nor defendants have fully sustained their respective contentions. The question presented is of public interest and of very general interest to the dental profession. For these reasons costs on this appeal will not be granted to either party.
Fead, Wiest, Butzel, Bushnell, Sharpe, and Toy, JJ., concurred. Potter, J., did not sit. | [
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Butzel, J.
On the afternoon of September 13, 1935, plaintiff, a 15-year old boy, rode his bicycle down Vermont avenue, a street running north and south in the city of Detroit, Michigan. He was accompanied by his young brother, not yet three years of age, whom he seated on the top bar and held between the handlebars and the seat. On reaching Vernor highway, a very wide thoroughfare running east and west, he saw defendant’s truck approaching thereon in a westerly direction. Plaintiff turned toward the west propelling his bicycle at the rate of from 6 to 8 miles an hour. The truck, consisting of a tractor, semi-trailer and an overlapping coupling, had a length of approximately 30 feet. It was proceeding at the rate of 15 miles per hour, the driver intending to drive north on Wabash avenue, which also runs north and south, and is one block west of Vermont avenue. The driver of the truck testified that as he drove along Vernor highway, he remained from 10 to 12 feet south of the northerly curb, that he passed plaintiff who was riding about 6 or 7 feet south of the northerly curb; that an alley runs through the middle of the block between Vermont and Wabash avenues to Vernor highway and that there were a few automobiles parked between the alley and Wabash avenue; that plaintiff rode his bicycle about 2 feet to the south or left of these cars; that he drove the truck from 4 to 6 feet to the left of plaintiff; that the speed of the truck was slowed down to approximately 4 miles an hour when it arrived at about 50 feet from the corner of Vernor highway and Wabash avenue, at which time the truck was about 10 feet from the curb; that he brought the truck to a stop before making the turn; that in order to make the turn, it was necessary to keep the truck some distance from the right curb so that the rear right wheel of the trailer Avould riot run over the corner of the curb; that the truck arrived at the easterly curb of Wabash avenue before plaintiff had proceeded that far; that he first became aware of the accident when he heard plaintiff’s outcry and that he brought the truck to an immediate stop. He stated, however, that he knew that in making the turn into Wabash avenue, the boy Avould also be compelled to make a similar turn.
Plaintiff testified that he could stop his bicycle Avithin a foot or two and that when he was 40 feet from Wabash avenue he saw the truck make the turn. On further examination, hoAvever, he changed or corrected his testimony and finally stated that the truck was just 10 feet ahead of him when it turned onto Wabash avenue; that he immediately threw his younger brother off the bicycle onto the grass between the sidewalk and the curb, but before he could stop the bicycle the rear end of the truck swung over to the curb against the bicycle, partly crushing the bicycle, with plaintiff under it, and causing him serious injuries. Plaintiff further testified that when the truck made the turn it was only 10 feet from the point at which he had arrived with his bicycle; that he found himself in a position of peril, and with an emergency thus arising, and the necessity of saving his little brother from a dangerous situation, he could not stop his bicycle in time to avoid being struck. The boy further stated that when the front part of the truck reached the corner, he was opposite the mid-section of the truck.
Other testimony showed- that the truck turned when the boy was about 12 feet from Wabash avenue and that he was just 5 feet from the corner when he put the little boy off the bicycle; that the driver gave no signal of his intention to turn; that the truck was proceeding at the rate of 15 miles per hour and that it suddenly turned to the right to go north on Wabash avenue.
Defendant claims that the accident was due to the fault of the boy who should have stopped his bicycle and that the boy’s own testimony as first given showed that he had more than ample time in which to alight from his bicycle as he could have stopped it within a foot or two.
There was sufficient testimony introduced so that the questions of the negligence of- defendant and the contributory negligence of plaintiff became issues of fact for the jury.
Defendant’s driver was asked whether he gave any signal with his arm or any mechanical device when he turned into Wabash avenue. Evidence showed that he was seated on the left side of the comparatively high cab of the truck and had he given a signal, it could not have been seen by the boy. The attorney for the defendant objected to the question on the ground that it would have been a physical impossibility for the boy to see the signal had one been given. The objection was overruled. At the close of the driver’s testimony, a juror inquired as to what the driver had testified in regard to the giving of the signal. This indicated that the jury must have been impressed with the import of the question. Defendant requested the judge to charge that the failure of the driver to give the signal in violation of the statute did not contribute to the accident and was not the proximate or contributing cause therefor. The judge refused to grant the request, but read the following- statutes:
“1 Comp. Laws, 1929, §4706. Sec. 14. Overtaking a vehicle, (a) The driver of any vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof, and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle.
“4710. Sec. 18. Turning at intersections.
“(a) Except as otherwise provided in this section, the driver of a vehicle intending to turn to the right at an intersection shall approach such intersection in the lane for traffic nearest to the righthand side of the highway, and in turning shall keep as closely as practicable to the righthand curb or edge of the highway.
“4711.- Sec. 19. Signals on starting, stopping or turning.
“(a) The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety and shall give a signal as required in this section.
_“(b) The signal herein required shall be given either by means of the hand and arm in the manner herein specified, or by a mechanical or electrical signal device which conveys an intelligible signal or warning to another driver approaching from the rear. ’ ’
He thereupon made further statements as follows:
“I charge you that it is negligent to operate an automobile in violation of said statute.
“I charge you further that if you find that the driver of the said truck and trailer did not give the warning as provided for by the statute law and did not make a right turn into Wabash avenue in the manner provided for by the statute law, then he is guilty of negligence.
“I charge you further, members of the jury, if you should find from the greater weight of the evidence, that the defendant’s truck was being driven west on west Vernor highway, and that, before it reached the corner of Wabash avenue, the motor truck passed the plaintiff, Albert Crookshank, riding on his bicycle on the right side of the truck three or four feet from the north curb, and you further find that it suddenly turned to the north without giving any notice or signal as required by statute, that this would be negligence. If,. however, it is apparent that such violation could have no influence in causing the injury, the jury has no right to consider it.
“In this connection, I charge you that the plaintiff was not required to anticipate that the defendant’s driver was going to violate the statute by turning north into Wabash avenue without giving proper warning or signal. # * #
“I further charge you that a bicyclist need not anticipate that a truck driver will fail to signal an intention to turn. ’ ’
It will be noted that after charging the jury that it was negligence not to give the warning as required by statute, the judge did state that if it was apparent that the violation had no influence in caus ing the accident, the jury need not consider it. He, however, immediately thereafter stated that plaintiff was not required to anticipate that defendant driver was g'oing to violate the statute by turning north into Wabash avenue without giving* the proper signal, and further that the bicyclist need not anticipate that a truck driver would fail to signal an intention to turn. He thus led the jury to believe that the failure to give the signal was negligence per se, and though some effort was made to modify ’his first remarks, he again emphasized them by his further statements. Defendant was entitled to the charge as requested in regard to the failure to give the signal, and if, as the record indicates, it was impossible for the boy to see the signal, then the testimony in this regard was immaterial. If the boy was alongside the truck, as he claims, when it made the turn, the giving of the signal would have been an idle gesture, and therefore, the driver’s failure to give it was not the proximate cause of the accident.
The defendant was entitled to an instruction that, notwithstanding the driver’s failure to comply with 1 Comp. Laws 1929, § 4711, such violation was not the proximate cause of the accident. The refusal of the lower court to properly charge the jury, as requested, constituted prejudicial error under the circumstances. Lagassee v. Quick, 273 Mich. 295; Patt v. Dilley, 273 Mich. 601; Stahl v. Bell, 276 Mich. 37.
As the case must go back for a new trial, we need not discuss whether the amount of the verdict was excessive or the other claims of error made by defendant. Those of any merit can be avoided on a new trial.
The judgment is reversed, with costs to defendant and a new trial ordered.
North, C. J., and Fead, Wiest, Bushnell, Sharpe and Toy, JJ., concurred. Potter, J., did not sit. | [
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Williams, C.J.
The issue in this case arises from the challenge of a prison inmate to the disciplinary directives of the Department of Corrections as not being properly promulgated as rules pursuant to the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. The department defended its disciplinary provisions as being subject to an exception to the rulemaking requirements of the apa for
[a]n intergovernmental, interagency or intraagency memorandum, directive or communication which does not affect the rights of, or procedures and practices available to, the public. [MCL 24.207(g); MSA 3.560(107)(g).]
The narrow question we decide today is whether, in granting summary judgment, the trial court correctly held that inmates are not members of the "public” for purposes of the apa, and the department thus acted with proper authority; or whether the Court of Appeals was correct in holding that prison inmates are members of the "public” under the apa and the department therefore did not come under the quoted exception to the apa procedural requirements. We affirm the decision of the Court of Appeals.
I. Facts
Plaintiff, Morris Martin, an inmate of the State Prison of Southern Michigan in Jackson, brought an action in Ingham Circuit Court, seeking a declaratory judgment to determine the validity and applicability of an agency rule and to review an adverse and final decision by the Department of Corrections. MCL 24.264, 24.301; MSA 3.560(164), 3.560(201). The trial court granted defendant’s motion for summary judgment, holding that prison misconduct regulations need not be promulgated as rules under the apa because prisoners are not members of the "general public” and hence within the quoted exception to apa requirements. The Court of Appeals reversed, finding that this Court’s decision in Green v Dep’t of Corrections, 386 Mich 459; 192 NW2d 491 (1971), led to a conclusion that prisoners are members of the public for purposes of the apa.
II. Corrections Is an Agency Covered by Apa
Section 113 of the apa states that it applies to "all agencies and agency proceedings not expressly exempted.” MCL 24.313; MSA 3.560(213). The Department of Corrections is not expressly exempted from the apa. We therefore agree with the Court of Appeals holding in Human Rights Party v Corrections Comm, 76 Mich App 204, 208; 256 NW2d 439 (1977), lv den 402 Mich 906 (1978), that the corrections department is an "agency” for purposes of the apa. Furthermore, prison discipli nary proceedings have not been expressly exempted from the act’s rulemaking provisions.
III. Apa Rule Requirements and the "Nonpublic” Exception
The apa requires administrative agencies to follow certain specified procedures for promulgating rules, including the requirements of notice and hearing. MCL 24.241; MSA 3.560(141). The apa defines a rule as follows:
"Rule” means an agency regulation, statement, standard, policy, ruling or instruction of general applicability, which implements or applies law enforced or administered by the agency, or which prescribes the organization, procedure or practice of the agency, including the amendment, suspension or rescission thereof, but does not include the following:
* * *
(g) An intergovernmental, interagency or intraagency memorandum, directive or communication which does not affect the rights of, or procedures and practices available to, the public. [MCL 24.207(g); MSA 3.560(107)(g).]
Defendant Department of Corrections contends that rules which affect only inmates are subject to the above exception and thus exempt from the rulemaking requirements of the act because inmates are not members of the "public.” _
IV. The Green Tort Decision
In Green v Dep’t of Corrections, supra, 464, this Court expressly adopted the language of the Court of Appeals which stated:
[P]laintiff is a member of the public community whether in or out of jail. The difference being that when incarcerated, he is prevented, by law, from exercising the rights and privileges he enjoyed as a free member of society. [30 Mich App 648, 654; 186 NW2d 792 (1971).]
The issue in Green was whether an inmate injured in the Detroit House of Corrections could recover damages pursuant to the "public building” exception to governmental immunity. The Court of Appeals was of the opinion that the above language compels a similar finding in this case. We do not agree. A finding that an inmate is a member of the public for purposes of tort liability does not necessarily lead to a conclusion that the word "public” as used in the apa includes prisoners. See Fletcher v Employment Security Comm, 355 Mich 278, 282; 94 NW2d 78 (1959). To make this determination, we must attempt to ascertain legislative intent. Aikens v Dep’t of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972).
V. Legislation Requiring Corrections to Promulgate Apa Rules
The Legislature has enacted a number of statutes directing the Department of Corrections to promulgate rules pursuant to the apa, indicating an intent that the department generally at least is subject to apa requirements. Several of these statutes deal directly with inmate rights.
MCL 791.262(3); MSA 28.2322(3) directs the de partment to promulgate rules under the apa to promote the "proper, efficient and humane” administration of jails and lockups under the jurisdiction of the county sheriff.
MCL 791.265c(10); MSA 28.2325(3)(10) directs the department to promulgate rules under the apa to establish criteria to determine prisoner eligibility for participation in programs of paid employment in the community.
MCL 791.254(4); MSA 28.2320(54X4) directs the department to promulgate rules under the apa to implement the procedures in rehearings involving prisoner misconduct hearings.
MCL 791.206(l)(d); MSA 28.2276(l)(d) requires the director of the department to promulgate rules under the apa "[f]or the management and control of state penal institutions . . . .”
A number of these directives apply to rules which would affect only prisoners. Additionally, the directive of MCL 791.206(l)(d); MSA 28.2276(l)(d) to promulgate rules for the management and control of state penal institutions would appear to include, by definition, rules governing the discipline of inmates. We believe the import of these statutes mandating rulemaking is that the Legislature regards a regulation which affects only inmates as being within the definition of a "rule” as defined by the apa.
VI. Pertinent Legislative Action and Inaction Regarding Inmates
The Legislature’s intention to include inmates within the purview of the apa rules is suggested in two other ways. In one instance, the Legislature immediately enacted a specific apa exception when the Court of Appeals held that a prison disciplinary proceeding is a contested case under the apa. In another, when the Model State apa was revised to include a specific exemption from apa procedures for rules affecting prisoners, the Legislature did not similarly amend the Michigan apa.
In Lawrence v Dep’t of Corrections, 88 Mich App 167; 276 NW2d 554 (1979), the Court of Appeals held that a prison disciplinary proceeding is a "contested case” within the meaning of the apa. The same year, the Legislature enacted 1979 PA 139, which amended the apa and expressly exempted prison disciplinary hearings from the contested case provisions of the act. MCL 24.315; MSA 3.560(215).
In many respects, the Michigan Administrative Procedures Act closely parallels the Model State Administrative Procedures Act drafted by the National Conference of Commissioners of Uniform State Laws. 14 ULA 1-101 et seq. The Model Act was redrafted in 1981, however, and now contains a section specifically exempting certain types of rules from formal promulgation requirements. In addition to exempting
a rule concerning only the internal management of an agency which does not directly and substantially affect the procedural or substantive rights or duties of any segment of the public [§ 3-116(1),]
the Model Act exempts
a rule concerning only inmates of a correctional or detention facility, students enrolled in an educational institution, or patients admitted to a hospital, if adopted by that facility, institution, or hospital [§ 3-116(6).]
We need not decide whether a provision similar to the Model Act if it were incorporated in the Michigan act, would serve to exempt the rules at issue here from the promulgation provisions of the Michigan apa. We only note that the drafters of the Model Act found it necessary to enact a specific exemption for inmates in spite of the provision exempting rules which do not affect the "public.” Our Legislature has not chosen to adopt a similar provision.
In view of the apa’s requirement of an express exemption, the example of the Model State Administrative Procedures Act in expressly exempting inmates and the lawmakers’ timely action exempting the department from the apa’s contested-case requirements in prison misconduct cases, we are persuaded that, had the Legislature intended to exempt the department from the duty to promulgate rules pursuant to the apa covering prison discipline, it would have enacted a provision similar to the express exemption in the Model Act.
VII. Public Interest and Input
The department contends that the purpose of a promulgation requirement is to provide for public input in the rulemaking process. Since the department argues that rules of prison discipline affect only that restricted population, it believes that comment by the general public would be of little benefit. This belief seems to overlook the obvious public concern of humanitarian and civil rights groups. Furthermore, it completely overlooks the concern of the Legislature. In Spruytte v Walters, 753 F2d 498 (CA 6, 1985), the United States Court of Appeals for the Sixth Circuit held that a Michigan Department of Corrections policy directive which limited inmates to receiving only books sent by publishers was invalid because it conflicted with a rule promulgated pursuant to the apa which allowed inmates to receive any book which did not present a threat to the order or security of the institution. The court stated:
Agency compliance with the provisions of the apa is particularly important because all proposed rules are subject to the approval of the Michigan legislature. A proposed rule must be submitted to a legislative joint committee on administrative rules. See MCL 24.245(2) [MSA 3.560(145)(2)]. If the joint committee disapproves the proposed rule or is at an impasse after two months of considera tion, the agency may not adopt the rule unless it is subsequently approved by a concurrent resolution of the legislature or by further action of the joint committee. See MCL 24.245(6) [MSA 3.560(145)(6)]. Thus, the question whether the Policy Directive may be adopted without compliance with the apa is more than a mere question of notice and hearing requirements; it is a question of the allocation of decisionmaking authority. [Id., 503.]
VIII. Rule Flexibility
Finally, the Department of Corrections argues that the management of prison discipline requires flexibility in response to changing circumstances and the inventiveness of inmates. Requiring every disciplinary rule change to go through a lengthy rulemaking process would, according to this view, endanger prison security. We are not unsympathetic to the necessity for flexibility, but we observe that the apa provides for emergency rules which may be made effective without prior notice and hearing procedures and may remain in effect for up to one year. MCL 24.248; MSA 3.560(148).
IX. Conclusion
For all of the above reasons, we are compelled to conclude that the Legislature, in enacting the apa, did not intend to include disciplinary provisions adopted by the Department of Corrections as "an intergovernmental, interagency or intra-agency directive or communication which does not affect the rights of, or procedures and practices available to, the public” and consequently excluded from apa requirements. Therefore, while we do not adopt the rationale of the Court of Appeals, we affirm their decision that the disciplinary directives of the Department of Corrections were not properly promulgated as rules pursuant to the Administrative Procedures Act.
Levin, Brickley, and Riley, JJ., concurred with Williams, C.J.
Although plaintiff’s complaint did not refer to any specific misconduct, the Court of Appeals stated that Martin was apparently disciplined for "substance abuse.” Martin v Dep’t of Corrections, 140 Mich App 323, 325; 364 NW2d 322 (1985). Plaintiff’s counsel at oral argument stated that plaintiff was disciplined for possession of one marijuana "joint.”
In Kirkeby v Dep’t of Corrections, 141 Mich App 148; 366 NW2d 28 (1985), another panel of the Court of Appeals reached the opposite conclusion. Pursuant to Administrative Order No. 1984-2, the Kirkeby panel certified that its decision conflicted with the decision in Martin. This Court granted leave to appeal in both cases, 422 Mich 879, 880 (1985). Plaintiff in Kirkeby has not filed an appellate brief.
In spite of its present contention that the apa does not require the promulgation of rules governing inmate misconduct, the department has in fact promulgated, pursuant to the apa, a number of rules relating to resident misconduct. 1979 AC, R 791.5501 ei seq. In one of these rules, "major misconduct” is defined as follows:
"(a) Escape or attempt to escape.
"(b) Behavior that constitutes a felony under state or federal law. "(c) Serious insubordination as defined in resident guide book.
"(d) Assault or threat of violence.
"(e) Repeated rule violations as defined in resident guide book.
"(f) A violation of rules that clearly jeopardizes facility security or safety as defined in resident guide book.” 1979 AC, R 791.5501(2).
Although "substance abuse” is not specifically listed as major misconduct, the department’s Resident Guidebook (referred to in sections [c], [e] and [f]) defines "substance abuse” as a "major rule violation.” Plaintiff charges that the Resident Guidebook cannot be adopted by reference in the rules because of the following apa provision:
"An agency may adopt, by reference in its rules and without publishing the adopted matter in full, all or any part of a code, standard or regulation which has been adopted by an agency of the United States or by a nationally recognized organization or association. The reference shall fully identify the adopted matter by date and otherwise. The reference shall not cover any later amendments and editions of the adopted matter, but if the agency wishes to incorporate them in its rule it shall amend the rule or promulgate a new rule therefor. The agency shall have available copies of the adopted matter for inspection and distribution to the public at cost and the rules shall state where copies of the adopted matter are available from the agency and the agency of the United States or the national organization or association and the cost thereof as of the time the rule is adopted.” MCL 24.232(4); MSA 3.560(132)(4).
The department has also issued a policy directive, designated PD-DWA 60.01, which outlines disciplinary procedures and was promulgated as a guideline under the apa. The apa defines a guideline as:
"[A]n agency statement or declaration of policy which the agency intends to follow, which does not have the force or effect of law, and which binds the agency but does not bind any other person.” MCL 24.203(6); MSA 3.560(103)(6).
PD-DWA 60.01 lists "substance abuse” as a major rule violation. Plaintiff charges that PD-DWA 60.01 cannot be employed in disciplining inmates because it has not been promulgated as a rule. The apa prohibits the adoption of a guideline in lieu of a rule. MCL 24.226; MSA 3.560(126).
Rather than defending the validity of its rules, the department chose to argue that promulgation of rules was unnecessary since plaintiff was not a member of the public. At oral argument, defendant’s attorney stated that promulgation of PD-DWA 60.01 as a guideline under the apa was "gratuitous.”
MCL 691.1406; MSA 3.996(106).
In Prisoners’ Labor Union v Dep’t of Corrections, 61 Mich App 328; 232 NW2d 699 (1975), lv den 394 Mich 843 (1975), the Court of Appeals held that inmates are not "public employees” within the meaning of the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq. The Court based its conclusion on a finding that the relationship between the inmates and the Department of Corrections is not primarily an employment relationship. The Court expressed no opinion regarding whether prisoners are members of the public.
The Spruytte court did not reach the precise question we consider here. Faced with a claim that inmates are not members of the public, and that the challenged directive therefore was exempt from the promulgation requirement, the court noted that the right of noninmates to mail materials into the prison was also affected, citing a similar holding in Schinzel v Dep’t of Corrections, 124 Mich App 217; 333 NW2d 519 (1983). The court further noted:
"A section 1983 claim adjudicated in federal court may be the only means of conclusively determining the correct interpretation of the Administrative Rule and the Policy Directive. The course of the litigation in the Marquette Circuit Court indicates that the Department of Corrections may be committed to a policy of preventing state appellate court adjudication of the controversy. The Department’s strategy apparently has been to enforce its Policy Directive despite court orders from the Marquette Circuit Court. Thus, a prisoner must litigate every time he wants to receive a book from a source other than a publisher.
"The Marquette Circuit Court’s contempt citations have been directed at the Department of Corrections rather than individual officers. The court has been reluctant to cite the individual officers because they are operating under the Department’s Policy Directive. Of course, the court cannot incarcerate the Department of Corrections and a fine is ineffective because the result would be mere transfer of funds from one state agency to another. Because the Marquette Circuit Court is without an effective remedy, the Department of Corrections has chosen to ignore the circuit court orders. To insulate its actions from review by the state’s appellate courts, the Department refuses to appeal the circuit court’s contempt citations, despite the pleas of the circuit judge: 'I strongly suggest to the Department that they either appeal this present order, in order that the relationship between the Policy Directive and the Administrative Rule can be clarified, or initiate procedures under the Administrative Procedure Act to have an amendment to the Administrative Code rule. ... If such an amendment is not that vital [to the order or security of the prison], the defendant Department should honor this and the prior orders of this court. . . .’ Mithrandir v Michigan Dep’t of Corrections, No. 11531, slip op at 3 (Marquette Cir Ct Feb 11, 1983).” Spruytte, supra, 502-503. | [
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The judgment of the Detroit Recorder’s Court is vacated and the cause is remanded to that court for entry of a judgment of conviction of assault with intent to do great bodily harm less than the crime of murder, MCL 750.84; MSA 28.279, and for resentencing. Reported at 422 Mich 554. | [
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Cooley, C. J.
The Legislature of the State at its session in 1883 passed an act “ to provide for straightening and opening the channel of Cedar river and its east and west branches, and making an appropriation of State swamplands to aid the work, and to authorize the levying of a tax for the completion of the same,” etc. Pub. Acts, 133.
The first section provided that “ for the purpose of aiding in straightening the channel of the Cedar river and its east and west branches, and opening, widening and deepening the same, to the end that the large territory now periodically submerged may be reclaimed, and the sanitary condition of the adjacent lands improved, there shall be, and hereby is, appropriated to the county of Livingston ten thousand acres of swamp lands in the lower peninsula not otherwise appropriated.”
The second section directed that the lands when selected should be withheld from sale during the time fixed by the act for the completion of the work, and that when the com: missioner should certify that one-half the work was completed, one-half the lands should be patented to the county, its assigns or the contractor, and the remainder upon a like certificate of the entire completion of the work.'
The third section named Spiridon S. Abbott as commissioner under the act, and directed that he give bond in the sum of $30,000 for the faithful performance of his duties as such.
By the fourth section the commissioner was to proceed at once to prepare plans and specifications for the work in the townships of Conway, Handy, and Iosco, in Livingston county, and of Locke, Leroy, and Williamstown, in Ingham county, or in so many of the towns as he might find necessary, and to submit the same to the board of review, provided for in a subsequent section.
By the fifth section provision was made for procuring the right of way for the improvement. No question arises upon that in this case.
The sixth section provided that “ the cost of constructing said improvement, together with the expenses incident thereto in excess of the appropriation hereby made, shall be paid by the lands and property benefited thereby, and by any township, city, or village, by reason of the benefit to the public health, and as a means of improving any public -highway,” and the commissioner was empowered to lay an assessment on the lands benefited for the excess in cost above the appropriation.
Section seven provided that on the completion of the assessment the commissioner should advertise for letting a contract for the work to the lowest bidder, and for making the contract and taking bond for security.
By section eight provision was made for the collection of the assessments by the township collectors, and the moneys when collected were to be held, subject to the order of the commissioner, for the payment of the contract and other expenses pertaining to the improvement.
Section nine declared that the supervisors of the several townships named should, together with the commissioner, constitute a board of review; and section ten made provision for the return of unpaid taxes.
Section eleven required the improvement to be completed within five years from the passage of the act, and gave direction for settlement by the Commissioner of the State Land-office with the special commissioner, and for cancelment of his bond.
The act was declared to have “passed the senate and house by a two-thirds vote of all the members elect of each house respectively, and ordered to take immediate effect.”
The special commissioner immediately gave bond under the act and proceeded to the performance of his duties. On July 19, 1883, he made certificate in writing of his determination “ that the proposed improvement was necessary and for the good of the public health, and as a means of improving the public highways,” and ought to be constructed. A survey, with plans and specifications, was duly made and completed, and was submitted to the board of review and duly approved. The commissioner then went on to obtain releases of the right of way for the improvement, and succeeded except in a few instances where lands were owned by minors. As to such minors, proceedings to appropriate a right of way as for a public use were taken, upon which no question is made now.
The commissioner then proceeded to make an assessment of benefits as contemplated by the act, and the assessment was laid before the board of l’eview, and approved by the board, with some changes, after hearing the parties complaining thereof.
On September 3, 1881, the commissioner advertised for letting a contract for the construction of the work, and on October 1, 1881, in pursuance of the advertisement, he received and examined the bids. That of Edward W. Sparrow, who proposed to construct the work for $12,600, in addition to the land appropriated, was the lowest bid, and was accepted, and a contract entered into with him. The commissioner then made an assessment upon the lands benefited for this sum and for the other estimated expenses, which increased the total to $15,000. The whole sum thus assessed, with the exception of about $500, was voluntarily paid by the parties assessed.
Sparrow, as contractor, immediately proceeded in the construction of said improvement, and became assignee of the county of Livingston' of the right to the lands appropriated therefor. On March 19, 1885, after a considerable proportion of the work had been done, he applied, as such contractor and assignee, to the Commissioner of the State Land-office to have certain designated State swamp lands reserved for sale, according to the provisions of said act. The commissioner, in view of doubts which had been suggested of the constitutionality of the act, declined to make the reservation, and Sparrow thereupon applied for this remedy. The commissioner has answered the application, and submitted the facts to the Court for its decision. It is not questioned in the answer that the terms of the act have been so far complied with that the relator is entitled to the relief he seeks if the act itself is valid.
The grounds of supposed invalidity which are advanced in the brief of the Attorney General are — first, that the act contemplates a scheme of internal improvement not permitted by the Constitution ; second, that it is an encroachment upon the constitutional right to local self-government; and, third, — which is perhaps embraced in the other two, — -that it provides for an inadmissible scheme of taxation. Upon these, so far as necessary, I shall briefly present my views.
The Constitution provides that “ The State shall not be a party to, or interested in, any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.” Article 14, § 9. This provision is supposed to be violated by the act under consideration, and the case of Anderson v. Hill 54 Mich. 477 is relied upon in support of that view.
The case referred to arose under “ an act to provide for the straightening and otherwise deepening the channel of the Dowagiac river in Van Buren County,” approved March 17, 1881. Local Acts 1881, p. HO. That act imdertook to empower the legal voters of the townships of Decatur and Hamilton to determine by a majority vote whether a tax should be levied on their townships respectively in aid of the improvement mentioned in the title of the act; the money, if voted, to be “assessed and collected in the same manner as other township taxes are, and expended in connection with other funds and means donated to and provided for such river improvement, after a full investigation of its merits under the supervision of the State board of control of State swamp lands.” It appeared in the case of Anderson v. Hill that an appropriation of State swamp lands had been made for the improvement, and that one of the townships had voted a tax, the avails of which were to be paid over to a person with whom a contract had been made for the construction of the work. The plaintiff was a taxpayer in the township, who, having paid the tax under protest, brought suit to recover back the amount paid. The only question involved in the case was whether the tax was legal.
It was conceded in that case that the State had authority to make an appropriation of swamp lands for the purposes of the improvement, and that the contract which had been made was a competent one for the State to enter into. The work was spoken of as one of internal improvement, but the lands had be"en donated to the State to be made use of for the purposes of drainage and reclamation (9 Stat. at Large 519), and making use of them for the purpose expressed in the act was entirely in the line of the donation. The tax levied upon the townships was, however, held invalid in that case.
In this case the tax is not in question. It is incidentally stated, though the statement has no relevancy to the relief asked, that nearly all the persons taxed have voluntarily paid the sums assessed upon them. Persons have an undoubted right in any case, where the State is making a donation of State lands, to give their money in aid of the purpose of the State donation; and it is immaterial in the case that they make the gift in the form of taxes. Their giving or withholding does not in any way affect the right or power of the State to make donation of the lands.
It was suggested on the argument that if that part of the act which concerns the tax is void, the whole act must fail. That might be so, perhaps, if the tax were to be the consideration to the State for the donation of lands; but this is not the case. The tax, if paid, goes to the contractor, and it goes in furtherance of the purpose for which the donation is made. The State is willing to make a certain donation for a specified improvement; but it is supposed a further inducement to a contractor is essential, and to furnish such further inducement the tax is laid. But the willingness of the State to make the donation does not at all depend upon the local community paying a tax. It depends upon the improvement being made; and if the people secure the improvement by a voluntary payment of money, the will of the State would be defeated, and at the same time gross in justice done if the lands are then withheld from the contractor.
I do not intend by this decision to raise any question of the correctness of the decision in Ryerson v. Utley 16 Mich. 269 and Hubbard v. Township Board of Springwells 25 Mich. 153, or of any of the cases in which the right of the people to local self-government has been vindicated. Putting out of question now the tax, which is in no way involved here, it is plain that the State has done nothing in restriction of the right to local government, what it has done being a favor to the local community, though worked out through State agencies ; and the donation of lands is not only in harmony with the act of Congress under which the lands are held, but it is in general accord with the practice of the State, which has prevailed for more than thirty years, to have these lands appropriated, under the general supervision of a State officer,- — a practice never before, so far as I know, questioned on constitutional grounds.
The Commissioner should reserve the lands as prayed.
Sherwood, J. concurred.
Champlin, J.
The Constitution does not prohibit the State from donating lands belonging to her to aid internal improvements, but expressly permits such action. I see no constitutional objections to sections 1 and 2 of the act in question, which clearly and unequivocally donates ten thousand acres of land to aid the improvement named. The act also contains provisions for protecting the State from imposition, by providing that the land shall not be patented until after the improvement is made ; one half when the work is half completed, and the balance when the whole work is done. The relator shows that the conditions under which the lands were donated have been complied with, and so far as the State is concerned he is entitled to the lands applied for. While I agree with my brother Campbell that the act under which the improvement is made, is subject to grave objections on constitutional grounds which he has pointed out, and which I should feel it my duty to consider if complaint was brought before us on behalf of any person aggrieved, yet I do not ►think the Commissioner is in a position to raise the objection on constitutional grounds. The State has by the act in question donated the lands, which she had a legal right to do to aid the improvement ; the conditions have been complied with by the contractor, and it seems to me that it would be an act of injustice if the State should now refuse to carry out such provisions of the law as are legal and valid, by selecting and patenting the lands according to the provisions of the act. The Legislature, acting in behalf of the State, has not repealed the grant, and I can see no propriety in refusing to give it effect according to the manifest intent of the Legislature.
I think the writ should issue.
Campbell, J.
Relator asks a mandamus to compel the Land Commissioner to transfer to him certain swamp lands under an ajDpropriation made by act No. 130 of the statutes of 1883, for straightening and opening the channel of Cedar river and its east and west branches in Livingston and Ingham counties. Respondent declines to do so, on the ground that by our previous decisions such a statute as this appears to be is unconstitutional. No question is presented concerning relator’s right as assignee of Livingston county to have what he asks if the statute is valid. The Constitution declares, by section 9 of article 14, that “The State shall not be a party to or interested in any work of internal improvement^ nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.” It is claimed that this is a work of internal improvement carried on by the State, and not confined to the expenditure of grants to the State .of land or other property.
There can be no doubt of its being a work of internal im provement. That phrase is as broad as language can make it. It can make no difference for what direct or indirect purpose of public utility an improvement is made so long as it comes-within sucli a definition, and it can make no legal difference over how much of the State it passes. All works of convenience, whether for travel, drainage or irrigation, are similar in their nature when small and large, and works for all of these purposes have been made of all dimensions, and for large and small districts. It is impossible to draw any line of magnitude. Any such work. that is deemed important enough for the State to construct is within the rule, and if not built in the permitted way, is within the prohibition. The present work affects several townships and two counties, and is declared by the statute itself as intended to reclaim a “large territory now periodically submerged.”
The cases which we have decided illustrate this principle. In Ryerson v. Utley 16 Mich. 269, the improvement passed upon was the improvement of navigation over the sand-flats of Muskegon river, which the State undertook to build, and did provide for building, out of a proper fund that turned out to have no existence, and we held there was no authority to raise funds by tolls or in any way not mentioned in the Constitution to pay for it. In Hubbard v. Springwells 25 Mich. 153, the road provided for was a short one of but a few miles in one township, for which the State required township bonds to be issued and taxes to be levied to pay the interest by assessment on the township, and taxes to pay the principal by assessment on neighboring lands, while the road was to be kept in repair by tolls, and if necessary by taxes. In Anderson v. Hill 51 Mich. 177, the improvement' involved was that of deepening and straightening the channel of Dowagiac river, for the same general purposes contemplated in the Act before us. At first it was intended to make the entire improvement out of swamp lands, but it was subsequently attempted, under State management, to complete the work by local taxation, and it was held that this could not be done, because the work was made a State work.
The question therefore arises whether the present work comes within the same category, as a State work not to be entirely carried out by lands or property granted to the State.
The statute upon its face indicates that the work is not expected to be completed by the ten thousand acres of swamp lands granted to Livingston county for that purpose. The commissioner to superintend the work is appointed by name in the act, and his successor, if any, was to be appointed by the Governor. Lie was empowered to make the proper plans and specifications for straightening, opening, widening, and deepening the Cedar river in the six townships named, three of which were in each county, “ or in so many of said towns as he may find necessary,” and on their completion to submit them to a board of review, provided for, which was to consist of the supervisors of the six townships named, over whom he was to preside, and empowered to vote when their vote should be tied. Upon the approval of his plans, which were to be as extensive as he should choose to make them, the commissioner was empowered to procure releases of right of way, or to procure condemnation under proceedings in accordance with the drain laws, and to take land without either release or condemnation if within the meander lines of the government survey. He was required, after getting the way, to advertise for letting the contract to the bidder who would do the work for the smallest sum in money in addition to the land appropriation, and to assess in one roll the cost of construction, and the expenses of locating and establishing the same, including his own compensation at three dollars a da}-, and the damages and incidentals in a gross sum, and then to apportion the whole upon what he should deem the lands and property benefited at a valuation fixed by himself in the first instance, fixing the amount chargeable on any township, city, or village as a municipality benefited in gross, and on individuals benefited separately. This assessment was to be reviewed by the same board, and on completion was to be divided into six rolls, one for each township, to be collected with the annual assessment rolls, and in the same way, and the money to be paid over to the commissioner for disbursement. Unpaid taxes were to be returned and lands sold as in other cases. The several supervisors were to be paid two dollars a day, to be audited by their respective town boards as township charges.
It is impossible to treat this as anjdhing but a State transaction. The commissioner, who controls the proceeding throughout, is a State officer, whose bond is fixed by statute at $30,000, and, although given nominally to the county of i Livingston, is to be approved by the Land Commissioner. Although it is not said in the outset expressly where it is to be filed, yet section eleven provides for a report from him to the Land Commissioner of all his doings, and a cancellation and surrender of the bond by the latter, if satisfied that the duties have been properly done.and the money faithfully-disbursed, and a suit on the bond of the Land Commissioner for any default. The county of Livingston has not, neither have any of its agencies, from first to last, any action to take or any rights or interests to enjoy. How the county came to be named at all can only be inferred from a probable enlargement and change in the scope of the statute from its first purpose before enactment.
The board of review consists of three supervisors from each county, in no way representing the county or their own towns for any county or township purpose. They are selected for a new, single, and special purpose. The townships as such have nothing to do with assessments or taxes, except to collect them and to pay them, not into the township treasury for township purposes, but to the statutory commissioner. There is no duty laid on any one except as ancillary to the action of the State agent. The case is in this respect stronger than that of Hubbard v. Springwells, where there were some subordinate functions performed by town officers, and that of Anderson v. Hill, where the tax was left optional with the voters of the townships concerned. Here neither township nor county authorities, nor people, in any known, direct, or representative way, have any control in the matter.
■ It is also plain that the improvement was to be and has been constructed in chief by funds raised by taxation. It was urged on the argument that this objection is not valid unless made by the tax-payers. But it is evident from the Constitution, and is known to every one in fact, that the chief object of the prohibition was to protect the State itself and its interests from such complications. There are many considerations outside of the mere money question. It is for the interest of every citizen that the State shall confine itself to its own functions. Every thing looking like inter-meddling in local affairs or in business enterprises or improvements has either been positively forbidden or jealously guarded. The credit and prosperity of the State were impaired and nearly ruined by a wild system of enterprises in which every portion of the State was anxious to have its share, and many persons found profit and influence in official jobs. The prohibition of such things altogether was found easier than any discretionary and discriminating power, however limited, and the courts cannot recognize what is forbidden to the Legislature. It cannot be held that money raised by taxation can be treated as a grant of money within the Constitution, and moreover, although the balance unpaid is not very large, there is still some balance unpaid, and there are some rights which have been taken without release which have to be taken into the account.
But beyond that it is clear that if an act is void as unconstitutional in its provisions as beyond legislative power when passed, it cannot be made valid by either private or legislative action by way of confirmation. It was held in Fenn v. Kinsey 45 Mich. 446 that a void act cannot bind the State by way of estoppel any more than in any other way, and that an authorized grant could not attach to a title subsequently released to the State unconditionally, without new action. This statute contains upon its face the evidences of its own illegality, as beyond the power of any State authority, and cannot bind the State any more than it can bind private interests.
The two-thirds legislative vote necessary to authorize the appropriation of public property to local purposes (Art. 4, § 45), while it would have sanctioned the use of swamp lands granted in aid of local enterprises in lawful, liands cannot do so where they are carried on by the State. There is no provision which would justify this.
In my opinion the Commissioner of the Land Office was. right in declining relator’s application, and no mandamus should issue. | [
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Cooley, C. J.
This case comes before the Court on demurrer to a supplemental bill of complaint. The circuit court overruled the demurrer, and the parties demurring'appealed.
The original bill was filed September 12, 1881, against a large number of defendants, the leading purpose being to obtain payment of the purchase moneys on a certain contract for the sale and conveyance of lands, made between the Blendon Lumber Company, as vendor, and the defendant Edward Cole, as vendee,- and bearing date September 1, 1866. The case on its facts was exceedingly complicated. There were two collateral contracts assigned as security for the principal contract. The members of the lumber company, which was a partnership, were all dead, and there had been transfers of interests by personal representatives and heirs. On the hearing on the original bill, the court was satisfied that all parties in interest were not before the court, and had directed the case to stand over for the bringing in of other defendants. This was done by the supplemental bill, and several of the parties brought in demurred for want of equity.
One ground assigned for demurrer in the brief for defendants is that the bill prays for a forfeiture, which equity will not grant. Crane v. Dwyer 9 Mich. 350; Wing v. Railey 14 Mich. 83. But this is not the correct view to take of the bill. It is in the nature of a bill of foreclosure, and when the rights under the contract are determined, the court will have full power to provide for the protection of all equities, and to order a sale for the satisfaction of moneys due, if necessary. Fitzhugh v. Maxwell 34 Mich. 138.
Another ground of objection to the bill is that it appears thereby that complainant is not owner of the title to all the lands contracted to be sold, but a part of them are owned by the defendant Jordan, who should have been joined as complainant. But if this objection is well grounded in fact, it is not good in law as a ground for general demurrer. If all the parties in interest are before the court it is sufficient; and they are before the court, either as complainants or defendants, if the allegations of the bill are true, as the demurrer admits them to be.
The claim upon the contract is said to have become, by the great lapse of time, a stale claim ; but the remedy upon it does not appear, in view of the recitals in the bill of the dealings of the parties, to have become barred by the statute of limitations or any rule applied by analogy. Besides, complainant, by his bill, claims to represent the title; and lapse of time would seem to tell rather against the purchaser, who has failed to demand and obtain a conveyance, than against the seller.
Complainant claims his rights under the contract through an assignment by executors, whose authority was derived through a will made and probated in another state; and the assignment is said to be ineffectual, not only because made by foreign exeentors, but also because it is not shown by the’bill that the condition of the estate was such as to give the executors power to sell to the exclusion of the heirs. The first ground is without merit, because it appears that letters based upon the foreign probate were issued in this State; and the second, if of any force, might perhaps be ground for special demurrer, but not for general demurrer for want of equity. Mere technical defects in the statement of the case, which might be cured by amendment if specially pointed out, will be overlooked on general demurrer, and the court will examine the bill only so far as to see that the substance of a good case is set out, even though it be inartificially, or with technical faults and deficiencies. Clark v. Davis Har. Ch. 227; Farwell v. Johnston 34 Mich. 342. The general demurrer challenges the equities, and not faults of pleading merely.
The order overruling the demurrer is afiirmed, and the record remanded, with leave to answer under the rules.
Campbell and Sherwood, JJ. concurred. Champlin, J. did not sit in this case. | [
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