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Stone, J.
At the election held in the city of Detroit on April 5, 1920, Act No. 369 of the Public Acts of Michigan for 1919 was approved by the electors of the city. The act is entitled as follows:
“An act to supplement existing laws providing for the establishment and maintenance of municipal courts of record, and defining the jurisdiction of such courts; to fix the number of judges thereof; to provide a presiding judge; to define the privileges of such presiding judge; to modify the procedure in and extend the jurisdiction of said courts in certain respects, and to provide for the abolishing of any police courts or other courts not of record having exclusive criminal jurisdiction existing in any city, in which the provisions of this act become operative.”
The bill of complaint herein was filed by the plaintiff, who is a resident taxpayer of Detroit, for an injunction to restrain the defendants, who compose the city election commission, from certifying the returns of the election in so far as they relate to said act, plaintiff’s contention being that the act in question violates the Constitution of this State and is null and void. A number of constitutional questions are presented and discussed by counsel, which, in our view of the case, it is not necessary here to set forth.
The act in question, among other things, provides for a referendum to the electors, and for a number of additional judges of the recorder’s court of the city of Detroit, to be determined on the basis of one judge for each 70,000 population, or majority fraction thereof according to the Federal census of 1910. The defendants answered and the case went to a hearing. Upon the hearing in the court below the temporary restraining order which had been made in the cause was dissolved and the bill of complaint was dismissed. The plaintiff has appealed.
At the threshold of this case we are confronted by two questions, either of which, in our judgment, is decisive of the case. Upon the oral argument of the case in this court it was conceded by counsel that after the dismissal of the bill below, the defendants had made the certification sought to be restrained, that the judges provided for in the act had been appointed, and were exercising the functions and performing the duties of the office in question. In other words, it now appears to this court that it has before it nothing but abstract questions of law which do not rest upon existing facts or rights. The questions involved are moot questions, and the case becomes a moot case, which we must decline to consider.
In the recent case of Anway v. Railway Co., 211 Mich., at page 622, Mr. Justice Fellows said:
“Among the numerous cases in which this court has declined to consider abstract questions of law and which we have declined to decide where our conclusions could not be made effective by final judgment, decree, and process, see Schouwink v. Ferguson, 191 Mich. 284; Carlson v. Wyman, 189 Mich. 402; Howe v. Doyle, 187 Mich. 655; East Saginaw Ry. v. Wildman, 58 Mich. 286; Hicks v. J. B. Pearce Co., 158 Mich. 502; Brown, ex rel. Van Buren, v. Lawrence, 197 Mich. 178; Ideal Furnace Co. v. International Molders’ Union, 204 Mich. 311; Blickle v. Board of Education, 210 Mich. 196; Tierney v. Union School District, 210 Mich. 424."
In Tierney v. School District, supra, it appeared that the granting of the injunction prayed for would be an idle act, and we held that where an appeal presents simply abstract questions of law which do not rest on existing facts or rights, and is therefore a moot case, and that action by the appellate court would be futile, the case will be dismissed.
There is another question or ground for dismissal that is equally decisive. In fact and in law this is a proceeding to test the validity of the statute involved, and the right of the judges appointed under its provisions, to hold the office and exercise its functions. In other words, the title of these men to office is in volved, and yet in'this proceeding, which is vital to their interests, they are not made parties and have no “day in court.” In this State quo warranto is the only way to try title to office, finally and conclusively. Frey v. Michie, 68 Mich. 323. In that case Mr. Justice Campbell, speaking for the court, said:
“The only way to try titles to office finally and conclusively is by quo warranto. Even where a mandamus is issued to seat a person who produces the proper evidence of title, it does not settle the title at all. Doran v. DeLong, 48 Mich. 552; People v. Detroit Common Council, 18 Mich. 338. It was held in Jhons v. People, 25 Mich. 499, that the title to office cannot be tried collaterally. See, also, Curran v. Norris, 58 Mich. 512. And although a bill in equity has a broader operation than a writ of mandamus, and is further reaching, it was held in Detroit v. Board of Public Works, 23 Mich. 546, that it would not lie to determine between two municipal bodies asserting the same power of appointment, and that the boundaries of theiri franchises must be determined by quo warranto. The bill filed against the board of auditors, referred to in the return, as well as in the petition, came within this decision, and the injunction dissolved by the circuit court should never have been granted. It only lies in aid of quo warranto, where expressly authorized by statute, and it does not lie at all to determine the usurpation of office or franchises. But there is no rule of law which will allow the title to office to be tried in a private controversy controlled by individuals.”
In Bolt v. Riordan, 73 Mich. 508, it was held that a proceeding in the nature of quo warranto against a person in office is the appropriate manner of testing the validity of the statute under which his office was created. It was also there held that the constitutionality of an act of the legislature under which an office is created may be tested by quo warranto proceedings against the incumbent, citing People v. Maynard, 15 Mich. 463; Attorney General v. Holihan, 29 Mich. 116, and Attorney General v. Amos, 60 Mich. 372. See, also, 32 Cyc. p. 1422; 8 L. R. A. 229, note.
In the quo warranto case of People v. Doesburg, 16 Mich. 133, it was held that where an issue was formed, and sent down for trial, the parties could not be deprived of a jury trial against their consent.
In Roeser v. Gartland, 75 Mich. 143, it was held that quo warranto was a proper remedy, where not only the existence of a school district, but the title of its officers, Was attacked. See, also, Atlee v. Board of Sup’rs of Wexford Co., 94 Mich. 562, citing Fractional School District v. School Inspectors, 27 Mich. 3.
In Perrizo v. Kesler, 93 Mich. 280, it was held that proceedings whereby a school district was created out of existing districts could not be reviewed by certiorari after the district had assumed the functions of a corporation, the remedy being by quo warranto, citing Fractional School District v. School Inspectors, supra, and Parman v. School Inspectors, 49 Mich. 63. See, also, Lachance v. Board of Canvassers, 157 Mich. 679.
City of Detroit v. Board of Public Works, supra,, was a chancery case. Mr. Justice Christiancy, in disposing of the case, there said:
“The whole controversy, therefore, is involved in the single question, whether the defendants are entitled to the offices they claim, as against the officers of the old boards sought to be discontinued. This is a question for which the statute has provided a specific and adequate remedy at law by an information in the nature of a quo warranto, which might be instituted upon the relation of the officers claiming to constitute the new board of public works, against the officers of the old board holding over. * * * In any of these proceedings by quo warranto, the question in controversy would be the same as that sought to be litigated under the present bill — the constitutionality of the act and the rights of the different officers to the offices they claim the right to hold. And it does not alter the case that there is also a question whether there are such offices to be filled, or whether there is such a corporation, as all this is involved in the question whether they are entitled to hold such offices, or to exercise such corporate powers.
“It is, therefore, quite clear that there is nothing in the nature of the controversy itself, or question to be tried, which makes it one of equitable cognizance, there being a complete remedy at law for the trial of the right of the respective contestants to the offices in question.”
This was said where the officers were parties in the equity suit. How much stronger is the reason, in its application, where, as here, the officers are not parties, and cannot be heard? It is sought in the instant case to try in equity the right of certain persons to a public office.
The court sought to be here reached is a de facto court. Of that fact we might take judicial notice.
A de facto court is one established and exercising its judicial functions under authority of a statute apparently valid, though such statute may be in fact unconstitutional, and may be afterwards so adjudged. 1 Black on Judgments, § 173; Burt v. Railroad Co., 31 Minn. 472 (18 N. W. 285).
In the last cited case it was held that when a court or office is established by a legislative act apparently valid, and the court has gone into operation, or the office is filled and exercised, under the act, it is a de facto court or office. Many cases are there cited, and among them. State v. Carroll, 38 Conn. 467 (9 Am. Rep. 409), where it is said:
“The de facto doctrine was introduced into the law as matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of an office, without being lawful officers.”
As said by the Minnesota court:
“It would be a matter of almost intolerable inconvenience, and be productive of many instances of individual hardship and injustice, if third persons, whose interests or necessities require them to rely upon the acts of the occupants of public offices, should be required to ascertain at their peril, the legal right to the offices which such occupants are permitted by the State to occupy.”
And the doctrine is held to apply to courts as well as other offices. See, also, Auditors of Wayne Co. v. Benoit, 20 Mich. 176 (4 Am. Rep. 382).
Turning to 1 Black on Judgments, § 173, we find the following:
“In order that a judgment should be recognized as valid, it is of course necessary that it should have been rendered by a lawful and duly constituted court; otherwise it is not ‘the sentence of the law,’ and is not entitled to carry its sanction. But on principles of public policy and for the security of rights it is held that the regular judgments of a de facto court, whose existence has afterwards been pronounced unconstitutional and void, are nevertheless valid and conclusive.” Citing State v. Carroll, supra; Burt v. Railroad Co., 31 Minn. 472 (18 N. W. 285); State v. Anone, 2 Nott & Me. (S. C.) 27; Gilliam v. Reddick, 26 N. C. 368; State v. Porter, 1 Ala. 688; Mayo v. Stoneum, 2 Ala. 390; Masterson v. Matthews, 60 Ala. 260; State v. Alling, 12 Ohio, 16; Keene v. McDonough, 8 Pet. (U. S.) 308.
At section 175, speaking of acts of a de facto judge, the same author says:
“A person may be entitled to this designation who, although he is not a true and rightful incumbent of the office, yet is no mere usurper, but holds it under color of lawful authority. And there can be no question that judgments rendered, and other acts performed by such a person are valid and binding. If a contested election, for example, should result in the ouster of the person who, being entitled on the face of the returns, was commissioned and qualified as judge, this would not retrospectively invalidate the judgments he may have rendered while in actual possession of the office. So judges elected and duly qualified, and who exercise the functions of their office, are de facto officers, although the act under which they were elected was unconstitutional.” Citing Campbell v. Commonwealth, 96 Pa. St. 344; In re Ah Lee, 5 Fed. 899; Carland v. Custer County, 5 Mont. 579 (6 Pac. 24); Taylor v. Skrine, 3 Brev. (S. C.) 516; Brown v. O’Connell, 36 Conn. 432 (4 Am. Rep. 89); Clark v. Commonwealth, 29 Pa. St. 129; People v. Bangs, 24 Ill. 184, and other cases.
We are satisfied that it is against the policy of the law of this State to allow the title of a public office to be tried and determined in a private controversy controlled by individuals. In any view of the instant case which we are able to take, we are of the opinion that the bill of complaint was rightfully dismissed.
The decree below dismissing the bill of complaint is affirmed, with costs of this court to the defendants.
Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred. | [
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Steere, J.
Defendant ran a butcher and grocery business in the city of Detroit. Plaintiff was in the butcher supply business and sold him certain fixtures in that line for a new store he expected to soon open. Differences arose over the terms of sale and delivery of the fixtures contracted for and this action was brought by plaintiff in the circuit court of Wayne county to recover for the articles claimed to have been sold to defendant in compliance with their contract of purchase and sale. Plaintiff declared in assumpsit on the common counts. Defendant pleaded the general issue with notice of recoupment and claimed damages for plaintiff’s failure to furnish certain of the fixtures contracted for within the specified time. The case was tried by jury on September 18, 1919, resulting in a verdict and judgment in plaintiff’s favor for $475, including interest. Defendant moved the court to set the .verdict aside on numerous grounds, which was denied and exception duly taken. The case was thereafter removed to this court on 21 assignments of error.
Plaintiff’s bill of particulars was composed of five items aggregating $741, as follows:
“One 10 x 8 tile cooler, $500.00. Two 10-foot tile counters, $70.00. One 8-foot tile counter, $28.00. 36 feet of racks, $45.00. 28 feet of glass, $98.00.”
Upon the trial plaintiff in harmony with its bill of particulars introduced testimony of the articles furnished and their value as contracted for. Defendant under his plea of the general issue and notice introduced testimony tending to show that plaintiff contracted to deliver the fixtures in question to him at his new store by November 1, 1915, at which time he planned and was expecting to open the same for business, but was delayed in so doing until the ensuing January by plaintiff’s failure to furnish the fixtures as agreed, causing him a direct loss of $60 rent for the store and $25 paid for advertising the proposed opening on November 1st, which plaintiff’s delinquency prevented. His further pleaded counterclaims, of “set-off and recoupment,” were for the three tile counters claimed to have been delivered to him in a worthless condition as to which no amount is stated, $15 cost of removing a certain rail plaintiff agreed to but did not remove; $150 for storing the tile cooler, tile counters and racks which were not accepted and plaintiff refused to take back; and $150 based on the amount it would have cost to procure a tile cooler a foot higher than the one installed, which he claimed was the size he ordered.
Plaintiff made no claim for the item of $98 for glass, set out in the bill of particulars, which its manager Robertson testified was for glass at the front of the counters which he proposed to put in but was never delivered owing to trouble which arose.. This left plaintiff’s claim for the four other items, as submitted to the jury, $643, with interest at 5% from the time they were furnished in December, 1915. Defendant made no payments on any of these fixtures and claimed he had never accepted them, but admitted that he was using the tile cooler plaintiff installed in his store, in 1915, right up to the time of the trial in September, 1919.
Under defendant’s assignments of error three points are presented and argued, interrogatively stated as follows: .
“1. Did the court err in charging the jury that it must disregard the defendant’s plea of recoupment?
“2. Did the charge of the court, as a whole, unfairly present the claims of the defendant to the jury?
“3. Was the verdict of the jury legal and proper?”
Three of the four remaining items in plaintiff’s bill of particulars are respectively for “two 10-foot tile counters — $70.00, one 8-foot tile counter — $28.00” and “36 feet of racks — $45.00.”
The three counters were delivered at defendant’s new store and placed in position by plaintiff, and the racks were delivered there but not installed. Whether they were ever accepted by defendant was a matter in. dispute, especially as to the counters, but it- was undisputed that these articles were never used by defendant. Plaintiff was notified of their rejection but did not remove them and when defendant moved into the new store about January 1st, he took them out and stored them in a small shed or garage at the rear of his store, substituting for them the counters from his old store across the street. Of this he said:
“The reason why I moved them over is I could not wait for Mr. Robertson any longer.”
A witness named McFarlane, who assisted in the moving, said of them in part:
“The counters showed that there had been an attempt made to fix them up. I helped to remove the old fixtures out of the old store and moved the old counters into the new store. * * * The old counters fit the purpose better than the new ones. You could hot use the new ones in the condition that they were in, in the new store. He would not have them, so they had to take and put the old ones into the new store and use them.”
The court left the question of acceptance and liability of defendant for the price of the same to the jury, and in case the jury found he had not accepted them, instructed them:
“The defendant may recover in case you find that the plaintiff owns these goods, may recover in this action the cost of proper storage and care for those goods from the time of delivery down to the present time. I do that for the reason that I want to leave this case in such shape after it closes that it will be known between the parties who owns those goods, that is, the counters and the racks.”
• The verdict of the jury as announced by the foreman in answer to the customary inquiry by the clerk was:
“We find a verdict of $475 in favor of the plaintiff, including interest, and the return of the three counters, with the meat racks, to Mr. Robertson.”
Under defendant’s third contention that the verdict “was improper and illegal” it is said in counsel’s brief:
“The-jury possessed no power to deliberate upon the question and to set forth in whom the title to the counters rested. They had power alone in this case to render a money judgment.”
The jury did have power to deliberate and determine, as between the parties, in whom the title to these articles rested, as a prerequisite to reaching a proper money judgment. They were properly so in structed by the court. It was not, however, the duty of the jury to separately state as a part of the verdict their determination upon that point, nor within the power of the jury to pursue the subject further in this form of action and direct the disposition of the property. That portion of the verdict was in its nature surplusage, not essential to it, and did not affect its validity. It was the duty of the clerk to formulate the essentials announced in the answer of the foreman, and record the verdict in the court journal in proper form. The record does not contain copies of the journal entries, but this was presumptively done, for the jury did render a distinct money verdict of “$475 in favor of the plaintiff, including interest,” and the record says of it: “November 4, 1919, judgment entered on verdict.”
Numerous assignments of error are directed against the charge of the court under defendant’s second contention that “the court, as a whole, unfairly presented the claims of defendant to the jury,” most of which were not argued specifically, the general complaint being as set out in defendant’s 9th assignment of error, that the charge “did not clearly set forth the issues in the suit, and the entire tenor and effect in this charge was to prejudice the claims of the defendant,” and as stated in the brief of counsel relative to certain remarks of the court, that they “react against the defendant because we insist they put the jury in mind for a compromise verdict, which would satisfy both parties to some extent. This was the result here.” As illustrative it is pointed out that the court remarked of the case in the early part of the charge:
“I have been endeavoring to think of some theory under which this, case should be submitted to you, so that all of the disputes and issues between these parties, would be once and for all settled and determined. I am frank to say to you under the way this case has been presented, I could not find any method that will guarantee that this litigation will settle all the troubles between the parties. It is possible that this litigation will be followed by another litigation, but I 'am going to do the best I can with the material that is here.”
The case had been once tried. The testimony of the parties was in extreme conflict in many particulars, beginning with the time and nature of the contract between them, and all the way through, resulting in adverse conflicting theories based on conflicting, testimony. Though perhaps not helpful and as well omitted, the remarks quoted were not without provocation and appear impartial. If to be regarded as a prejudicial criticism, as counsel claims, they were in the language used as applicable to plaintiff’s side .as to defendant’s. Following this the court proceeded to take up in detail the various conflicting claims and contentions of the parties, explaining their nature, the theories contended for, issues submitted to the jury and their duties in that connection, in a charge covering over 10 pages of the printed record, which on the whole fairly advised the jury of the nature of the litigation and questions for their determination. Nothing was said by the court directly urging or mentioning a “compromise verdict.” So far as it indicated to the jury their duty to reconcile their views on the conflicting testimony and agree upon a verdict if they conscientiously could, the instruction was appropriate to the case and not improper.
While much bitterly conflicting testimony céntered around the tile cooler which plaintiff furnished and installed the court instructed the jury, as a matter of law, that under defendant’s own testimony-he had accepted the same and was holden to plaintiff for its value as they might find the same to be, saying in part:
“It is in evidence here from his own lips, that he did accept it, that he did use it, and that he is now estopped from claiming he did not use it.”
This is urged as “palpable error.” The undisputed facts and defendant’s own testimony stamped his strenuous assertions that he never accepted the tile cooler as erroneous conclusions of law rather than testimony in the field of facts.
The tile cooler was ordered for defendant from Cleveland. It weighed 8,000 pounds and was shipped packed in sections. On its arrival about the middle of December it was taken at once to defendant’s new store, promptly put together and installed, the work being personally supervised by Robertson. Defendant testified:
“Mr. Robertson set it up and we helped him to do it. He worked all day Sunday until late in the evening setting the box up, and I think had three others to help him.”
The counters were put in complete, as Robertson testified, except nailing on the tops, which proved to be an inch short because not sufficiently projecting over the ends for proper appearance, and setting the glass which was to be determined by measuring after the counters were installed. Robertson testified he told defendant that - he would make new tops, but the latter became “wrathy” about it and unreasonable, and said he “wouldn’t have the tops nor the counters,” nor let him install the fixtures and finish the job. Defendant testified that he was not satisfied with the counters “because the mouldings were left off the end of one of them and the tops did not fit. • That was my reason for objecting to accepting them.” As the result of differences which arose at or .about that time, touching which their testimony is broadly at variance, they appear to have kept apart thereafter and only communicated with each other in writing. Robertson testified that after defendant would not let him finish the job he had no further conversation with him until he got word from defendant’s attorney. Defendant said, “I never communicated with Mr. Robertson after November and December, but sent them a letter to take the fixtures out.” This letter, dated December 23, 1915, was written by his attorney and stated, in brief, that plaintiff had violated its contract to install fixtures by November 1, 1915, that they had not yet been fully installed, that those which had been were not placed according to contract, and owing to continued breach of its contract plaintiff was requested to “take the fixtures out on or before December 24, 1915, or Mr. Richman will be obliged to take them out himself, and store them at your risk and cost.” On December 31, 1915, plaintiff wrote defendant offering to complete the job as contracted for and asking for a reply, which is not shown to have been made. When defendant moved across the street from his old store to the new shortly after January 1, 1916, he took out the counters and racks as threatened, but kept the tile cooler as installed in his new store and used it. He said in one part of his testimony that he did not use it “until the 5th of January, 1916.” On cross-examination he was asked and answered:
“Q. Since the cooler was there you have been using it continuously up to the present time?
“A. I started to use it, that ice box, when it began to be warm, around spring. I have used it, I have put in it ice myself and everything. It was around March.
“Q. You are using it right up to now?
“A. Yes.”
We find no error in the instruction of the court upon that subject.
Defendant’s contention that the court erroneously charged the jury to disregard the plea of recoupment is directed to a portion of'the charge in which the court told the jury defendant was not entitled to “any set-off with regard to renting the store” or its use, because not shown to have been in contemplation of the parties or that time was of the essence of the contract. While disputed, defendant’s testimony tended to show that the agreement called for delivery of the goods November 1st. We are not prepared to say that portion of the charge did not invade the province of the jury, neither are we prepared to say that it affirmatively appears from an examination of the entire cause that it resulted in a miscarriage of justice. While not assuming to pass upon the weight of the testimony or decide any disputed facts, but examining the verdict of the jury in the light of the drift and import of the testimony as applied to the pleadings of the parties and the specific items claimed thereunder, we are impressed that the jury, perhaps inadvertently, did not accept as good law the instruction complained of.
It fairly appears from the nature of the verdict and trend of testimony that the jury sustained defendant’s claim that he never accepted and was not liable for the counters and racks. This eliminated from plaintiff’s bill of particulars the three items therefor amounting to $143, leaving only the one item of $500 for the tile cooler, the value of which the court directed the jury he was liable for. His counterclaims of $150 for storing the cooler, counters and racks, and $150 for additional cost of a taller cooler were almost entirely contingent on his theory that he had rejected the cooler. He in fact never took out or stored the cooler as he threatened, but kept, used and, as a matter of law, accepted it. He did not show that he bought or tried to buy, or needed another. It was testified practically without dispute that he put the counters in an old shed, or garage, in his back yard, in a place where there was no flooring and the rain beat in on them, that they were broken, in bad condition and worthless. Under such circumstances there was no legal foundation for the great bulk of his $300 claims, and there is reasonable room for inference that the jury rejected those two items of set-oif and recoupment as not established to their satisfaction by a preponderance of evidence. In this aspect of the situation there remained but plaintiff’s claim of $500 for the tile cooler and defendant’s three counterclaims of $60 for rent, $25 for advertising and $15 for removing rail, amounting to $100, as to which there was distinct itemized proof. Deducting this amount from plaintiff’s price for the cooler and adding to the remaining $400 interest upon it at 5% per annum from the middle of December, 1915, to the time of the trial in September, 1919, results in practically the amount of the verdict rendered.
This reference to the amount and possible elements of the verdict is but incidental to “an examination of the entire cause,” as authorized in such cases by section 13763, 3 Comp. Laws 1915. . Only the party against whose interest the jury appear to have prejudicially failed to follow the instructions of the court can complain. If the jury so failed to follow the charge in the particular complained of it was in defendant’s favor, and we are unable to conclude that it affirmatively appears in this case that the error complained of has resulted in a miscarriage of justice.
The judgment is affirmed.
Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Steere, J.
Plaintiff recovered against defendant a judgment in the circuit court of Isabella county for wrongfully causing the death of an imported and pedigreed Belgian stallion named “Embatable de Don,” claimed to have been the most valuable horse ever taken into that county. The parties kindly stipulated, however, at conclusion of the opening statement. of plaintiff’s counsel, that if the court, as a matter of law, found defendant liable under the stated facts ,a verdict might be directed in plaintiff’s favor for $3,000, and counsel for both parties then requested a directed verdict. After argument the court directed a verdict for plaintiff for the conditionally stipulated amount.
It appears in the record and briefs of counsel undisputed that in the spring of 1919, some time prior to May 9th, plaintiff bought this stallion from a well-known firm located at Lafayette, Indiana, engaged in importing and selling horses, and took him -to Mount Pleasant, Michigan, for the purpose of sale. He had employed a groom or keeper named Mclsaac, who was in immediate charge of the horse which was stabled in a well-known barn on a principal street of Mount Pleasant. Plaintiff had never offered the horse for sale, or used or offered him for breeding purposes in the State of Michigan, and was absent from Mount Pleasant on May 9, 1919. Mclsaac was then at the barn in charge of the horse as a groom, whose only duties were to care for, feed and look after him. The horse was, so far as known, sound and in good condition. On that day he was cared for by Mclsaac in the usual way, given his morning and noon feed at the regular time and the usual quantity of water, which he ate and drank with relish. Until after the arrival of defendant at the stable in the afternoon of that day the horse appeared in perfect health and normal in all respects. He was a large, heavy animal of the Belgian draft horse breed, weighing 2,400 pounds.
There was then in force in the State Act No. 256 of the Public Acts of 1911, with amendments, entitled as follows:
“An act to encourage the breeding of horses; to regulate the public service of stallions; to require the registration of stallions, and to provide for the enforcement thereof.”
Sections 7 and 8 of said act (3 Comp. Laws 1915, §§ 14887, 14888) are as follows:
“SEC. 7. Every stallion brought into this State from another State or from a foreign country to be offered for sale or for public service shall, before any such sale or use is made, be examined by the State veterinary board or its regularly appointed representative, and certified by said board or its representative that said stallion is free from hereditary, contagious or transmissible unsoundness or disease, and is of good conformation and breed type and suitable to improve the horse .stock of the State.
“Sec. 8. Any person, firm, company or association violating any of the provisions of this act shall be deemed guilty of a misdemeanor, and shall upon conviction thereof be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment in the county jail not more than thirty days or by both such fine and imprisonment in the discretion of the court.”
Not having yet offered the horse for sale or breeding purposes within the State plaintiff had made no application for the examination and credentials required by the act for such purpose.
Defendant Black was a veterinary surgeon and secretary of the State veterinary board. Without any request from or previous notice to the owner, then absent, he appeared at the stable in the afternoon of May 9, 1919, at about 3 o’clock, for the purpose, as he stated to Mclsaac, of examining the horse under the law upon that subject, telling him who he was. Although Mclsaac had no instructions from plaintiff or previous knowledge upon the subject, he submitted to defendant’s statement of what he was authorized officially to do and obeyed his directions. In the course of his examination, for the purpose of “proving the wind” to detect any disease of the respiratory organs, he directed Mclsaac to take the horse out and run with him down the street for about a block or so and back again. He then directed Mclsaac to get upon the animal’s back and gallop him as fast as he could down the street a block and back again, which was done. Not satisfied with the strenuousness of those tests he caused a light, fast driving horse which was in the barn to be hitched to a light buggy and directed Mclsaac to get into the buggy with him and lead the stallion behind. He then drove at a very fast pace down the street several blocks, causing the heavy stallion, weighing 2,400 pounds, to gallop behind for a distance of about 120 rods at an unusual gait and unreasonably fast pace for an animal of his kind and weight.
When taken out for this test the horse appeared in good spirits with his head up and full of life. A short time after being returned to his stall he was found by Mclsaac with his head down, trembling and sweating excessively. He called defendant, who was near by, and unsuccessfully endeavored to relieve his condition. Two other veterinaries were called, but the horse grew worse with progressive symptoms of a ruptured stomach, of which he died that evening. An autopsy shortly after his death disclosed a rupture of the stomach from four to six inches in length caused, as plaintiffs counsel stated the proofs would show and the defense assumed as true for the purpose of this case, by the unusual, violent and unreasonable over-exertion for a horse of his weight and kind exacted by defendant ostensibly to test his wind.
Defendant’s counsel state, and plaintiff’s counsel concede, that the two questions involved in the issue as made and argued are:
“First. Was Dr. Black a trespasser in making the examination without the request of the plaintiff and without notice, and
“Second. The liability of a public officer in the performance of his official duties.”
Upon these propositions counsel for defendant contended that, it being conceded the stallion was brought into the State for the purpose of sale, it was the right and duty of the State veterinary board, under section 7 of the act, to.forthwith examine him, without any application or request of the owner therefor, to determine whether his sale or service for breeding purposes would or would not be a benefit to the public; that defendant was, therefore, not a trespasser, but when conducting such examination was lawfully performing a mandatory official duty of a discretionary and judicial nature, to determine by an expert physical examination whether such animal was of the kind and in physical condition entitling him, to be certified as the statute provided; and that in the performance of such official duty he was not liable for the result of any mistaken methods adopted in the exercise of his discretion, or judgment.
Upon the liability of a public officer for damage done by him to private property while in performance of a mandatory official duty, many decisions, not entirely harmonious, are to be found. In that connection it may be noted that this act is not bottomed on the impelling necessities which justify those drastic measures authorized by quarantine laws for guarding the life and health of human beings against dangerous, infectious or contagious diseases which are or may become epidemic, neither can it be regarded as fairly analogous to the laws authorizing quarantining or destruction of domestic animals to guard against an epizootic of diseases, infectious or contagious amongst them, from which if unchecked great and immediate public loss would result. Most of the cases to which our attention has been called relate to the conduct of public officers in acting under such laws.
Even in that class of cases the rule of protection in performance of official duty has its limitations. In Mil ler v. Horton, 152 Mass. 540 (26 N. E. 100), the court held in. a well-considered opinion written lay Justice Holmes that under a law authorizing summary destruction of animals having farcy or glanders, with no provision for compensation to owner, an order of commissioners on contagious diseases Of domestic animals certifying that a certain horse examined on that date was adjudged to have a contagious disease known as glanders and directing that he be killed, was not a protection to the officers executing the order in a subsequent action by the owner against them where it appeared the animal was not in fact infected with the disease. In Pearson v. Zehr, 188 Ill. 48 (29 N. E. 854), a like ruling was made in an analogous case where the livestock commissioners of the State examined and ordered certain horses destroyed because infected with glanders.
As illustrative of what is claimed to be generally accepted rules applicable to the case at bar, counsel for defendant cite Garff v. Smith, 31 Utah, 102 (86 Pac. 772), and Mitchell v. Hopper, 114 Ark. 556 (170 S. W. 231). Those cases involved the performance of duties under laws directed to the prevention or eradication of communicable diseases amongst animals. In the Utah case defendants were the State sheep inspector and his deputy acting in performance of their duties as public officers under a law providing for quarantining sheep found diseased, and were charged by the owner with having defined the limits of a quarantine for certain of plaintiff’s sheep, which they required him to observe, in a region where, owing to the scarcity of proper feed, they ate quantities of greasewood and drank water excessively, a combination likely to cause sickness and death amongst sheep, as a result of which several of them died. Of this the court said:
“There are no allegations in1 the complaint, nor is there any evidence showing, that either of the defendants knew, or that it was common knowledge, that it is harmful or injurious to sheep to eat greasewood and to drink water thereafter, nor that the defendants, in the performance of their duty or otherwise, in defining the limits and designating the place, or in any other particular, acted with malice or wantonness,_ or that they acted beyond the scope of their authority, or without or in excess of their jurisdiction._ * * * It is strongly urged by respondent that, while the act of inspecting and quarantining the sheep may be judicial in its nature, nevertheless the a-ct of defining the place and limits of quarantine is but ministerial. We discern no such distinction. The law does not prescribe the mode of doing the one act any more than it does the other. The law requires the officer to make regulations, for the quarantine. * * * It is quite apparent that the doing of the acts complained of involve such discretionary powers as to make their exercise judicial in their nature, and that the officer performing them is not liable in a civil action, in the absence of averments and proof that he acted with malice or through fraud or corruption.” Citing cases.
In the Arkansas case, cattle inspectors were engaged in the performance of their official duties under a law requiring inspection and treatment of cattle for eradication of certain diseases, and while so engaged one of them roped and threw a steer in such careless manner, as was claimed, that his leg was broken. The owner brought an action for its value, charging negligence in the manner of roping and throwing the animal, as to which there was an issue of fact, defendants claiming the injury was purely accidental and the animal was properly lassoed by an experienced man when trying to break from the herd, but when it struck the brace of the horse at the end of the rope the steer slipped on a rock and fell, admittedly suffering the injury complained of. Defendant assigned error on refusal of the court to instruct the jury that—
“Before you would be authorized to find for the plaintiff, you must find from a preponderance of the testimony that the defendants carelessly or negligently roped the steer belonging to the plaintiff, and in so doing broke, or caused to be broken, its leg, and if you fail to so find from a preponderance of the testimony, then your verdict will be for the defendants.”
The court instructed the jury that if they “found from the evidence that appellants, during the inspection, injured any of the plaintiff’s stock,, they would be liable for whatever damages he sustained by reason of the injury,” which the appellate court held was erroneous, and the rejected request should have been given, saying in part:
“Appellants were officers and engaged in the performance of their duties in inspecting the cattle at the time they undertook to do so. The act being lawful they were only liable for injuries resulting from carelessness or negligence and could not be held liable for damages or'injury resulting by accident or casualty while they were in the exercise of proper care, or such care as an ordinarily prudent man would have exercised under the circumstances.”
Although the case was reversed for the errors pointed out, the proper rule, as stated by the court, seems to harmonize with plaintiff’s contention in the instant case, even assuming, as defendant claims, that, under the act in question, it was his official duty to unsolicited and without notifying the owner examine and test the horse on his own initiative.
But back of that question we find nowhere in the act any express provision giving the State veterinary board the power or imposing upon it the duty to, on its own initiative, take possession or control of such a horse against the wishes, or without the knowledge and consent, of its owner and conduct the examination provided for in section 7, especially when it is undisputed that the animal has never been offered for sale or breeding purposes, or so used, within the State.
In that connection it is helpful to note the class of boards to which the State veterinary board belongs. It cannot properly be counted as a health' board, for man or beast. Here and elsewhere that field is occupied by boards properly constituted and empowered for such service under different laws. In this 'State those duties were until recently performed as to domestic animals by the State livestock sanitary commission, created by Act No. 182, Pub. Acts 1885 (2 Comp. Laws 1915, § 7307 et seq.), but' abolished by Act No.' 181, Pub. Acts 1919, which created! a department of animal industry providing that all functions, powers and duties of the abolished commission “are hereby transferred to and vested in the department of animal industry hereby created,” etc. The State veterinary board is one of the several examining and licensing boards provided for authorizing the pursuit of certain professions and other callings within the State, such as physicians and surgeons, osteopaths, dentists and pharmacists, optometrists, chiropodists, veterinaries, barbers, nurses, horse-shoers, etc. As created, the number of its members, required qualifications, powers and duties of this board are provided in Act No. 244, Pub. Acts 1907 (2 Comp. Laws 1915, § 6813 et seq.). The additional powers directly conferred upon said board by the act under consideration are stated in section 6, amongst which it is “authorized to provide for official examination of pedigrees and certificates,” etc.
Both by the statute Creating it and the act under consideration its purposes, powers and duties are primarily those of án examining and licensing board, from which those desiring to engage in the practice of veterinary medicine in its various branches, or under the act in question, engage in the sale or use of stallions for breeding purposes must, by complying with prescribed requirements, obtain a license there for before entering upon those activities, for a violation of which criminal proceedings and punishment by fine and imprisonment are imposed. The law provides no machinery and confers upon the board no power to compel a party who has not engaged in such calling or activity, even though he contemplates doing so, to qualify and obtain a license therefor. It does provide criminal prosecution and punishment if he so engages without a license. Plaintiff violated no law in bringing the horse into the State and keeping him here, though intending to sell him, so long as no “such sale or use is made” before the certificate prescribed by section 7 has been obtained. By the opening statement of plaintiff’s counsel it was shown that the board had promulgated certain rules and regulations prescribing the manner in which applications for examination and license should be made, and had circulated them amongst horsemen of the State. If not directly advised, plaintiff presumptively knew the law. Taking as true, and conceded for the purposes of this case, that this horse was of the kind and value stated in counsel’s opening it was not only the duty but beneficial right of plaintiff to have him inspected, registered and licensed. Upon this the market value of the horse for the purposes proposed in this State largely depended. To sell or offer him for sale before obtaining the prescribed credentials would not only lay plaintiff open to criminal prosecution but be suicidal as a business proposition.
To a large degree the law isjm its nature self-enforcing amongst those capable of qualifying and proposing to engage in the named sale or use of such animals, as a matter of self-interest; and like reasons of self-interest stimulate those who have complied with the law to insist upon its enforcement against those endeavoring to violate it. While the board and its members would naturally and commendably take an active interest in seeing that this law relating to their duties was enforced, the provided method for reaching that result is prosecutions for its violation.
In the course pursued defendant exceeded his authority and was not in the performance of any mandatory official duty which protected him from liability for the consequences.
The judgment is affirmed.
Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Stone, J.
This case is here upon writ of error to' the recorder’s court of the city of Detroit, in which court defendant was convicted of having, at the city of Detroit, on January 19, 1919, feloniously received and had in his possession, and with having aided in the concealment of, one Ford sedan automobile of the value of $400, the personal property, goods and chattels of Ella Collins, then lately before’ feloniously stolen, taken and carried away, the defendant then and there well knowing the said automobile to have been feloniously stolen, contrary to the provisions of section 15301, 3 Comp. Laws 1915. Upon the trial the evidence was undisputed that the said automobile was on the morning of Sunday, January 19, 1919, at about 9 o’clock, stolen and driven away from the corner of Beaubien and Jefferson streets, in the city of Detroit. The defendant was a witness in his own behalf, and he testified that between 10:30 and 11 o’clock a. m. of the same day a man by the name of Sam Tantenella, whom defendant had known for more than a year, came to defendant’s home at 479 E. Congress street, Detroit, and employed defendant to drive a car to Chicago for him, offering to pay defendant $15 and expenses to make the trip. This offer defendant accepted. Among other things he testified as follows:
“I met this fellow over on Rivard and Fort with this Ford sedan, with this car that Miss Collins said belonged to her. I met him about 2 o’clock, and prior to that time he told me he would give me $15 and expenses to make the trip. * * £ I have known this man quite awhile. I met him at 2 o’clock on Fort and Rivard and we parted and got something to eat before we left. We started from Detroit between 2:30 and 3 o’clock. We stopped at Somerset for over night where we put in a new radius rod. The roads were so rough that they bent the radius rod, and I put a new one in. We left Somerset about 9 o’clock the next morning, Monday morning, and got to Chicago on Tuesday. I couldn’t exactly say, but about 10:30.”
As to just what occurred in Chicago there is some conflict between the testimony of the defendant and that of the police officers who took him in charge. Albert Woodrich, an officer of the Metropolitan police force of Chicago, testified that he first saw the defendant on the 21st day of January, 1919, at 649 S. Clark street, Chicago; that defendant had a hose and was cleaning a Ford automobile at the time. He testified as follows:
“I asked who the machine belonged to. He said it was his. I asked his name. I think he said Sam Tantenella. I asked him where he got the machine. He said, T bought it in Detroit/ I says, ‘Have you got a bill of sale?' He says, ‘Yes/ I says, ‘Let me see it/ He showed it to me and I told him the bill of sale may be all right, and the car, but T am going to take you to the detective bureau/ ”
The bill of sale seems to have been received in evidence, but does not appear in this record.
William H. Doyle, another member of the metropolitan police force, to whom defendant had been turned over, testified, among other things, that he went and looked at the automobile, describing it as a Ford sedan, looked at the motor number and found the last figure should be an “8”; it was changed to “5.” The license number on the car at that time was 46,425. Miss Collins had testified that the license number on her car was 40,328. The witness, among other things, testified as follows:
“I talked with Tantenella later on after we had investigated a little more. He told me that he had bought the car. X asked what date he bought it. At. that time I had that answer from Detroit, tie said, ‘I bought it on the 18th/ And the car was reported to us as stolen on the 19th. The 18th was Saturday. The 19th would be Sunday. This was the 21st he was arrested. He told me a fellow named Verne, X think it was, sold him the car for $375. We turned the car over to Mr. Collins the following Saturday/5
The Mr. Collins referred to was Miss Collins5 brother, who went to Chicago and reclaimed the car. Mr. Collins testified that one tire was taken off and . another had been changed on the rear wheel.
“The one that was on there was one I bought just previous to the time it was taken. I am absolutely positive it was my sister's car. The license number that was on the car when I got it was 46,425.”
Steven J. Merritt, a member of the metropolitan police force of Detroit, testified that he made a search of the records for license number 46,425, the number on this bill of sale, and found that it belonged to a man named Wagon of Bad Axe, Michigan (Richard is his first name), for a Buick touring car.
“I have made a search as to the records of the number 1,497,285 of the Ford car and found that the owner was Sam Trigarler, 181 Fort street, and I have found that there is no such man or number. * * * When I went to Chicago to bring this defendant back he told me that he bought the car from a fellow named Joe Barn or Joe Bams in Detroit. At the time he bought the car he paid $375.”
Miss Collins had testified that the motor number on her car was 1,497,288. The witness Doyle testified that the defendant, after the witness had discovered a picture of the defendant on his person with the name William Carussa on it, admitted that his name was not Tantenella, but Carussa.
There was a motion for a new trial upon the ground of newly-discovered evidence, which was denied. No exceptions seem to have been filed to the overruling of the motion, and the record fails to show that the claimed evidence was newly discovered in any sense. The question will therefore not be considered further.
Upon the argument and in the brief of counsel and by the assignments of error, it is claimed that the meritorious question is whether there was evidence sufficient to carry the case to the jury, that the de fendant had any knowledge or information that the car had been stolen at the time he received the same in the city of Detroit, it being the claim of counsel that knowledge or information that the car was stolen did not reach him until after he arrived in the city of Chicago. There is no question that to support the charge here made against the defendant it must appear:
(1) That the goods were stolen.
(2) The receiving of the property by the defendant.
(3) The identity of the goods as those previously stolen.
(4) . The guilty knowledge of the defendant.
There is no question as to the first three points. There is no question under our decisions that there must be evidence of the prisoner’s guilty knowledge at the time he received the property, or aided in its concealment. In other words, that he received the goods in question knowing them to have been stolen. In general this is to be collected from all the various circumstances of the case. Counsel for defendant cite the case of Durant v. People, 13 Mich. 351. This case has been cited with approval as recently as People v. Mullis, 200 Mich. 505.
Counsel for defendant also call our attention to the case of Commonwealth v. Phelps, 192 Mass. 591 (78 N. E. 741). We do not doubt that the rule there stated is the correct one. The head-note of the case reads as follows:
“On the trial of an indictment for receiving and aiding in the concealment of stolen goods, although possession by the defendant out of the commonwealth of goods stolen in the commonwealth would not in itself warrant a conviction, evidence of such possession is competent in connection with other evidence to show that the defendant received the goods in this commonwealth knowing them to have been stolen.”
Our attention is also called by counsel to the case of State v. Caveness, 78 N. C. 484. The rule there stated is undoubtedly the law, that to render a defendant guilty of receiving stolen property he must know at the moment of receiving it that it has been stolen, and he must at the same time receive it with felonious intent.
In the case of People v. Lintz, 203 Mich. 683, in discussing the question of guilty knowledge, it was held that guilty knowledge under the statute is an essential element, and, when denied, is a question of fact for the jury. We are of the opinion that there was sufficient evidence of guilty knowledge of the defendant at the time he received, and had to do with, this automobile, to carry the case to the jury, and to sustain a conviction. He took charge of this car and admits that he drove it to Chicago, making repairs as necessary. He is found in the possession of it two days after it was stolen. He makes contradictory statements as to its ownership, how and where he received it, and gives the name of another person as his own. The condition of the car, the changes of the numbers, the fictitious bill of sale, all these things having intimately to do with the car he is found in possession of, were earmarks of his guilty knowledge, and it was for the jury to say, under the circumstances, when he first obtained that knowledge or information.
In State v. Gordon, 105 Minn. 217 (117 N. W. 483, 15 Ann. Cas. 897), the court said:
“Guilty knowledge on the part of the defendant was not directly proved. In the nature of things, that is ordinarily impossible; nor is it necessary. The circumstances accompanying the transaction may justify the inference by the jury that the prisoner believed, and had received the goods on belief that they were stolen. 2 Bishop Crim. Law, § 1138; 1 Wharton Crim. Law, § 984; 24 Am. & Eng. Enc. Law (2d Ed.), p. 52.”
In Huggins v. People, 135 Ill. 243 (25 N. E. 1002, 25 Am. St. Rep. 357), the court said:
“The knowledge of the prisoner, in this sense, is the gist of the offense, and must be found by the jury as a fact. In determining whether the fact existed, the jury will be justified in presuming that the prisoner acted rationally, and that whatever would convey knowledge or induce the belief in the mind of a reasonable person would, in the absence of countervailing evidence, be sufficient to apprise the prisoner of the like fact, and to induce in his mind the like impression and belief.”
Guilty knowledge means not only actual knowledge,, but constructive knowledge, through notice of facts, and circumstances from which guilty knowledge may fairly be inferred. People v. Wilson, 151 N. Y. 403. (45 N. E. 862); People v. Rosenthal, 197 N. Y. 394 (90 N. E. 991, 46 L. R. A. [N. S.] 31). See note to State v. Gordon, 15 Ann. Cas. 899.
While we have held (Durant v. People, 13 Mich. 351) that mere possession cannot be used as evidence to show knowledge that the goods were stolen, we have also held that the fact of recent possession of stolen property, coupled with contradictory statements of the accused as to the possession of such property and aiding in concealing such property, was. evidence of guilty knowledge. People v. Harris, 93 Mich. 617; People v. Oblaser, 104 Mich. 579; Tiffany’s Criminal Law (Howell’s 4th Ed.), pp. 559, 1043, 1047, 1048.
The admitted receiving into possession of this car by the defendant a few hours after it was stolen; his driving it to Chicago, in company with the probable thief; the evidence of the changing of the motor number and the license number; the claiming of ownership by him, and his exhibition of a bill of sale; his assumption of the name of the person described as the purchaser in the bill of sale; the conflicting statements made by him as testified to by the witnesses named, constituted sufficient evidence upon the question of guilty knowledge to carry the case to the jury, and to justify the verdict of guilty.
We find no reversible error in the record, and the judgment of the trial court is affirmed.
Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
During the year 1919, defendant Missouri Valley Bridge & Iron Company was engaged in constructing a bridge over the River Rouge for the Michigan Central Railroad Company. In constructing the concrete piers it was necessary to use a caisson. Plaintiff’s husband, Claude Williams, was employed by defendant to work in the caisson. At the time of the accident hereinafter referred to the caisson extended between 70 and 80 feet below the surface. At that depth the men in the caisson worked under an air pressure of from 87 to 40 pounds. When a shift was made the men on duty were brought to the top of the caisson by means of a ladder, where they entered an air-tight locker, 12 feet in diameter and 24 feet in height. After the men entered the locker it was closed and the air pressure slowly reduced, usually at the rate of a pound a minute. It was shown that if the air pressure is reduced more rapidly than a pound a minute it is likely to result in what is called “caisson sickness” among the men. This is a dizziness accompanied with partial paralysis of the limbs. On the early morning of July 4th, Williams was coming out of the caisson with his companions. They had entered the air-tight compartment and the air was being released. Williams stood on the ladder leading out of the locker. By inattention or neglect, Eaton, the employee who had charge of the valve, allowed the air to escape too rapidly, with the result that Williams became affected with “caisson disease,”. and released his hold on the ladder and fell on the head of the man below him, striking on his stomach and chest, and later striking his head against the side of the shaft. He was removed from the locker and given medical aid, but survived only a few hours.
Counsel for defendants concedes that plaintiff’s intestate met his death through accidental means, but argues that the award is invalid because the fall which produced the injury was caused by conditions peculiar to the industry in which he was engaged. Effort is made to classify the present case among those to which Van Gorder v. Packard Motor Car Co., 195 Mich. 588 (L. R. A. 1917E, 522), belongs. It is also sought to bring it within the “occupational disease” cases, of which the lead poisoning case of Adams v. Color Works, 182 Mich. 157 (Ll R. A. 1916A, 283, Ann. Cas. 1916D, 689), is an example.
We are not persuaded that the present case falls within the first class mentioned. The reason why recovery has been denied in the first class named is oecause of some inherent physical defect which was the proximate cause of the injury and which had no causal connection) with the employment. Such, how ever, was not the situation in the present case. The thing which caused the death of plaintiff’s intestate Was not inherent. It was a condition which came on suddenly and was caused by the inattention and neglect of a co-employee in permitting the air to escape from the locker too rapidly. The locker was decompressed at the rate of two pounds a minute, whereas it should have been done at the rate of one pound a minute. This produced in Williams what is termed “caisson disease.” Herein lies the distinction between this and the Van Gorder Case. In that case epilepsy caused the fall. In the present case caisson disease caused it. The epilepsy had no causal connection with the employment. The caisson disease was directly due to it. It, therefore, arose out of the employment.
Neither are we persuaded that the case should be classed among the occupational diseases. It is true the testimony establishes the fact that caisson disease develops by the slow process, the same as occupational diseases usually do. Had Williams contracted caisson disease in this manner and his injury and death had resulted therefrom, the argument of counsel would have great force, but the caisson disease, which was responsible for this accident, developed in a few moments as the result of the inattention and neglect of another. In this inattention and neglect we find the unusual thing — the happening — the accident.
Objection is raised to the award because plaintiff did not establish her right to it. We think the testimony showing the marriage and support was ample to authorize the award which the board made in the premises.
Being impressed that the board reached the right conclusion, their award will be affirmed, with costs to the plaintiff.
Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Sharpe, J.
On December 1, 1914, Albert Eastman entered into a land contract to sell and convey two lots in the city of Detroit to Albert Gundick and Martha, his wife, for a consideration of $2,600. On April 18, 1919, a decree of divorce dissolving their marriage was granted. In this decree each of the parties was awarded an undivided one-half interest in the equity they had under the land contract in the two lots. This decree was supplemented by another, made on May 12, 1919, which awarded the entire interest under the Eastman contract to Albert on condition that he should pay to Martha the sum of $555. This amended decree was vacated by this court in Gundick v. Gundick, 208 Mich. 34, except in so far as it corrected the description of the premises in the original decree. The opinion was filed oh December 22, 1919.
Pending the decision on appeal, the plaintiff, acting through her brother-in-law, Charles C. Stewart, procured an assignment from Albert Gundick of his interest in the Eastman contract, subject to the payment to be made to Martha under the amended decree, paying therefor $555, and on June 13,1919, Eastman conveyed the lots to plaintiff by warranty deed, subject to the land contract executed by him to Albert and Martha Gundick, upon which there was then stated to be due the sum of $1,700.
It further appears that the intervener, Edward E. Hill, who was a dealer in real estate, being informed that the property was for sale, entered into negotiations with one Anna Manderano for its purchase by her and procured a check from her for $100 as a down payment. This check was delivered by Hill to Mr. Gottman, who was attorney for Albert in the divorce proceedings, who held it a few days. Immediately after the signing of the amended decree, Gottman informed Hill that he would give him four or five days to sell the property and, Mrs. Manderano being absent from the city, Mr. Hill procured William Sherman Lyster to purchase it and delivered to Gottman a certified check from Lyster for $1,200, which check Gottman deposited in the bank to the credit of his personal account. This money was afterwards returned to Lyster.
There was a dwelling house on the lots, of which Martha had retained possession. The plaintiff deposited with the clerk of the court a check for $555, payable to the order of Martha, in compliance with the terms of the amended decree, and demanded pos-session. This was refused by Martha, and on application to the court a writ of assistance was granted plaintiff. Martha filed a bond to stay proceedings and took her appeal to this court. After the decision in this court the plaintiff, by permission of the court, withdrew the deposit made by her, demanded of Martha the amount due under the Eastman contract on her undivided one-half interest, and on her refusal to pay served notice of forfeiture of her interest under the contract. Plaintiff then began proceedings before Circuit Court Commissioner May to recover possession, whereupon Martha filed a bill against plaintiff to restrain such proceeding. This was, on motion of plaintiff, dismissed. Commissioner May finally determined that there was $887.45 due from Martha under the contract and this amount, together with the costs, she paid into court. This was accepted by plaintiff and the deed of an undivided one-half interest in the lots executed by her to Martha. Plaintiff then filed this bill for partition. The defendant Martha answered, denying that plaintiff owned the other undivided one-half interest in the lots and asked that the bill be dismissed. In the meantime, and on May 24, 1919, Albert Gundick conveyed the lots by quitclaim to the defendant Hill for a stated consideration of one dollar and other good and valuable consideration.
Pending the hearing, the attention of the trial court was called to the fact that Hill had secured such quitclaim deed and the attorney for Martha Gundick asked that he be made a party defendant. Later, Mr. Hill, when on the stand as a witness, requested that he be permitted to intervene. A petition therefor was presented by his attorneys and an order for intervention made, whereupon he filed an answer and cross-bill. In the latter he charged that the assignment from Albert to plaintiff was procured by fraud and collusion, that under his quitclaim deed he was the owner of Albert’s interest, and asked for a decree accordingly.
The proofs were taken in open court and a decree granted dismissing Hill’s cross-bill and for partition as prayed by plaintiff. Both of the defendants appeal.
It is claimed that plaintiff had no such title to an undivided one-half interest in the premises as entitled her to bring partition. Our attention is called to the decisions of this court in which it has been held that plaintiff in a partition suit must have a good-title to the interest claimed by him and that contested legal titles cannot be litigated in such a proceeding. Hoffman v. Beard, 22 Mich. 59; Fenton v. Mackinac Circuit Judge, 76 Mich. 405; Warren v. Warren, 151 Mich. 95. An exception to the rule thus stated is noted in Hoffman v. Beard, supra:
“If the title be an equitable one, or partly equitable and partly legal (Overton v. Woolfolk, 6 Dana, 371), the court of equity may very properly try the titles, and so probably when the title is of a purely legal character, but some obstacle exists to a fair and perfect trial at law.”
Irrespective of whether the facts in this case bring it within the exception, we are of the opinion that this question cannot now be raised by either of the defendants. Martha Gundick makes no claim to other than an undivided one-half interest and is in no way interested in the dispute between plaintiff and Hill.- The plaintiff, by virtue of her deed from Eastman and the assignment from Albert of his interest in the land contract, is the owner of the other one-half, unless her right thereto bé affected by the quitclaim deed from Albert to Hill. The only interest Hill could have was the right to be permitted to pay up the amount due by Albert under the contract and thus secure from plaintiff a deed to a one-half interest. He owned no title to any part of this land which could be made the subject of a suit at law. After he secured his quitclaim deed, he might have taken proceedings in equity to have his rights thereunder determined, but did not do so. He asked leave and was permitted to intervene under section 11 of chapter 12 of the judicature act (3 Comp. Laws 1915, § 12362) which provides:
“In an action either at law, or in equity, any one claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”
- Having submitted himself and his interest in this property to the jurisdiction of the court by his intervention, which is declared by the statute to be “in subordination to, and in recognition of, the propriety of the main proceeding,” in which partition was the only relief sought, we do not think he could thereafter question, the right of the court to determine his interest and, when it was determined that he had none, to grant the decree for partition as between plaintiff and Martha Gundick.
Was the assignment from Albert Gundick to plaintiff a valid transfer of his interest in the land contract from Eastman? If so, as it antedates the quitclaim deed from Albert to Hill, the latter secured nothing by such deed. It will serve no useful purpose to review or quote from the testimony bearing on the claim that this assignment was procured by fraud or through collusion with Albert’s attorney. The trial judge heard the witnesses and concluded that no such fraud or collusion was established. While the consideration paid him was less than his interest was worth at the time of the hearing, the trial judge found this was due to the large increase in values of real estate in certain sections of the city of Detroit. After a careful perusal of the record, we find no reason to disturb the conclusion reached by him. .
It is claimed that the conveyance from Eastman to plaintiff “was nothing more than an assignment of the vendor’s rights in the property.” The legal title was in Eastman, and this was'conveyed to plaintiff, subject only to the rights of Albert and Martha under the land contract. As such rights had been severed by the divorce decree and the right of Albert to an undivided one-half interest had been assigned to plaintiff, the deed from Eastman conveyed an undivided one-half interest to plaintiff released from the provisions of the land contract and the other undivided one-half, subject to the right of Martha to secure a deed to the other one-half, a right which she afterwards exercised. The right of plaintiff under the assignment from Albert clearly became merged in her superior right under the warranty deed from Eastman. It cannot well be claimed that, had plaintiff secured from both Albert and Martha an assignment of their interests under the land contract to her, she would not then have had the absolute ownership of the premises as though the land contract had never been given.
The decree makes no specific provision as to the rent to be chargeable to defendant. It does, however, provide that the premises shall be divided equally “as near as may be, taking into due consideration any rental that may be due from the said Martha Gundick to the said Lettie Nott from May 22, 1919, to the date of partition.” (May 22,1919, was the date of the assignment from Albert Gundick to plaintiff.) The general rule is thus stated in 38 Cyc. at page 63:
“In the absence of statute or agreement to the contrary, a tenant in common, while merely in possession of the common property, not excluding his cotenants, nor denying them equal enjoyment, cannot be charged with rent for use and occupation. * * * If the nature of the property be such as not to admit of its use and occupation by more than one, and it is occupied by one of the tenants in common only; or if, although capable of occupation by more than one, it is yet so used and occupied as in effect to exclude the others, he so occupying will be held accountable to the others for the rents and profits.”
This is, in effect, the rule laid down by this court in Hunt v. Hunt, 109 Mich. 399, and followed in Fenton v. Miller, 116 Mich. 45 (72 Am. St. Rep. 502). See, also, Schultz v. Dennison, 159 Mich. 259 (25 L. R. A. [N. S.] 1249), wherein it is said:
“It is competent in partition proceedings to adjust the equities of the parties in the decree.”
We think the provision of the decree relative to rents was fully justified by the proofs.
We have given consideration to the other questions discussed by counsel. In our opinion, they are in no way controlling. The decree is affirmed, with costs to plaintiff against both defendants.
Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred. | [
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Fellows, J.
(after stating the facts). While other questions are argued, we are impressed that but two questions are presented upon this record for determination at this time. They are:
(1) Was applicant’s letter above quoted a sufficient claim for review of the decision of the arbitrators? and
(2) Has the board the power to set aside the award of the board of arbitration and order a new arbitration?
We are persuaded that the first question must be answered in the affirmative and the second in the negative.
The statute (section 5461, 2 Comp. Laws 1915, amended by Act No. 64, Pub. Acts 1919) requires no formality in the claim for review and this court has on numerous'occasions recognized the summary character of these proceedings. Strict rules of pleading are not required. In Kalucki v. Foundry Co., 200 Mich. 604, where this section of the statute was under consideration, this court said:
“It may be noted in passing that a bare statement-in writing of plaintiff’s claim for review which could be written in two or three lines, would if filed with the board within the seven days have preserved right of review under the provision of the statute.”
And in Brunette v. Quincy Mining Co., 197 Mich. 301, where it was urged that time was needed to prepare the claim for review and assignments of error, we said:
“The act only requires a claim for review to be filed within the 7 days, which can be quickly prepared and transmitted. Assignment of errors and grounds for review which counsel urge take time to prepare are not required by the act to be then stated.”
While the language found in the letter does not strictly follow the language of the statute, we think it was sufficient.
While the industrial accident board performs quasi judicial duties, it is not possessed of judicial power. It was created by statute and to the statute it must look for its authority. The general scheme of procedure in contested claims contemplates a submission to arbitration of the questions, of liability and compensation, a review of the award of the arbitrators by the full board, a review of the board’s action by this court on certiorari. When the arbitrators make their award either for or against the plaintiff, that award fixes the rights of the parties, and these rights are, in the absence of fraud, irrevocably fixed unless the board on review, hearing the case de novo, upon the testimony already taken, and such additional testimony as the parties may submit, reaches a different conclusion. In this way, and this way alone, may the award of the arbitrators be set aside. There is no power in the board to direct the submission to a second set of arbitrators, and vacate the steps already regularly taken. In Pocs v. Buick Motor Co., 207 Mich. 591, and Diebel v. Construction Co., 207 Mich. 618, this court held that the board had no authority to grant rehearings of matters already decided by it. Manifestly if it may not grant a rehearing upon its own action and of questions, which it has decided it may not grant a rehearing before another set of arbitrators of matters once finally decided by a board of arbitrators chosen under the statute. It would be a strange rule which would take from one of the parties the benefit of an award by the arbitrators solely because the other party either through his own neglect or otherwise was unable to comply with the request of the board. We know of no rule of law or of practice which requires a party to furnish his adversary with a transcript of testimony taken by his own stenographer. While the board or any member thereof may make examinations of books and papers of the parties to a dispute (section 5456, 2 • Comp. Laws 1915) this does not entitle a party to a transcript obtained at the expense of the other party. As a matter of courtesy between attorneys it is frequently furnished, and in the instant case the attorneys for the insurance company apparently made a. good faith effort to obtain it for the plaintiff. The notes, however, had been destroyed and it was, therefore, impossible to produce it. This fact might induce the board to consider fully all testimony taken under the provisions of section 5464, 2 Comp. Laws 1915, but it did not authorize the action taken.
The order made by the industrial accident board vacating the award of the board of arbitration and resetting the matter for another arbitration must be vacated and the case remanded for such proceedings as may be had not inconsistent with this opinion.
Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, J.
On April 3, 1916, one Emil Reick executed a written lease to defendant of certain premises in the city of Benton Harbor, consisting of a store room and basement, for the term of two years from April 1st of that year, to be occupied for a barber shop. It provided for an “annual rent of $144 in 12 monthly installments,” payable on the first day of each month. The lease was in the usual form, except that it included a clause creating a chattel mortgage on “all goods, wares and merchandise, household furniture, fixtures or other property which are or shall be placed in or on said premises by him,” to secure the rent due or to become due thereon.
Defendant entered into possession under the lease and regularly paid the rent provided for. When the two years expired he continued to occupy the premises and pay the rent without - anything being done or said concerning a new term. On July 14, 1919, Reick conveyed the premises by warranty deed to Antonio Faraci and Marguerite Faraci (husband and wife) and Pasquale Foresteiri and Angelina Foresteiri (hus-. band and wife), and defendant made payment of rent, as reserved in the lease, to them up to January 1,1920. On December 3, 1919, the plaintiffs, being three of the grantees named in said deed, served upon defendant a notice to quit on or before January 5, 1920, “for the reason that we intend to terminate your tenancy, and to repossess ourselves of such premises on the date above mentioned.” On January 9, 1920, plaintiffs began summary proceedings to recover possession and obtained a judgment for restitution. On appeal to the circuit court a similar judgment was rendered, from which defendant has appealed.
The claim of defendant is thus stated by his counsel *
. “That under the lease and the facts in this case there having been an annual rent reserved, he was a tenant from year to year which tenancy in any event would not expire until April 1, 1920, and the notice Was insufficient to terminate the tenancy.”
The plaintiffs contend that the holding over created a tenancy at will and was terminated by the month’s notice to quit.
The rule applicable to a tenant holding over after the expiration of a term for years is thus stated in 24 Cyc. p. 1031:
“According to the great weight of authority, where a tenant under a demise for á year or more holds over at the end of his term without any new agreement with the landlord, he may be treated as a tenant from year to year. . It is held, however, that a tenancy from year to year cannot be inferred from the mere fact of holding over by the tenant; the landlord must in some manner recognize the tenancy. Thus the receipt of rent by the landlord from one so holding over indicates with certainty a design to continue the relation of landlord and tenant, and a tenancy from year to year will arise. Such intention should in each case be found and determined as a question of fact by the jury, and in so doing they may take into consideration the character of the property and the use to which the same is to be put, as well as the periods at which the rent is to be paid. The presumption of law that a tenant who by permission of his landlord holds over is a tenant from year to year may be rebutted by proof that the holding over is in some other character or for some other purpose; but proof of a contrary intention on the part of the tenant alone is not sufficient for this purpose.”
This rule is in full accord with the former holdings of this court. Schneider v. Lord, 62 Mich. 141; Huntington v. Parkhurst, 87 Mich. 38; Scott v. Beecher, 91 Mich. 590; Hoffman v. Willits, 194 Mich. 276. The opinion in Barlum v. Berger, 125 Mich. 504, is said to be in conflict. In that case there was a verbal lease for five years, the tenant to pay $15 per month rental, and also the sum of $150 in advance as additional rentál for the five years. A few days after the lease expired the lessor served a notice to quit and soon after began a summary proceeding to recover possession. This was discontinued on lessee’s promise to vacate. As stated in the opinion, the court found “that there was no intention on the part of the plaintiffs to permit the defendant to continue to occupy” and that “defendant did not suppose there was any such intention.” On these facts the plaintiff was entitled to recover. The court, however, said:
“The rent was payable monthly, and the contract of leasing cannot be treated, after the expiration of five years, in any other manner than as a tenancy or lease from month to month.”
We cannot assume that the court in the language employed intended to overrule the cases theretofore decided, which are cited above. In Scott v. Beecher, supra, the court had said:
“When a tenant under a valid lease for years holds over, the law implies a contract on his part to renew the tenancy on the same terms for another year; but the landlord may treat him as a trespasser, or as a tenant holding upon the terms of the original, lease. * * *
“The law presumes an intention by the tenant to continue the yearly tenancy from the holding over. An agreement that such holding over should not be so regarded might be shown to rebut the presumption, or there might be such clear indications of an intention to vacate that a holding over for a day would not support the presumption. But, in the absence of 'such agreement or such indications, the holding over is a legal expression of the tenant's intention, and all that is necessary to complete the contract is the consent or acquiescence of the landlord.”
This opinion is exhaustive and well considered, and many cases are cited therein. It may also be noted that a part of the above quotation is quoted approvingly by Mr. Justice Moore in the somewhat recent case of Hoffman v. Willits, supra.
The case was tried before the judge without a jury and findings made and filed by him. The third finding of fact reads:
“I further find that after the expiration of the lease, and until July 14, 1919, the defendant held over the premises and paid rent under the terms of the lease, to Emil Reick, until July 14, 1919, with the intent- of the parties to continue under the terms of the lease from month to month.”
Agreeable to this finding of fact, he found as a matter of law that the holding over “created a tenancy at will, from month to month, and that 30 days’ notice was sufficient to terminate the tenancy.” Defendant filed exceptions to these findings and insists that the latter part of the finding of fact is not supported by any proof submitted. The facts were all stipulated, and we find no statement therein indicating what the intent of the parties, or either of them, was when the holding over began. Counsel for plaintiffs claim that these findings were justified by the fact that the rent provided for in the lease was secured by a chattel mortgage, the lien of which is claimed to have ceased to exist at the expiration of the lease and that the holding over, as stated by plaintiffs’ counsel—
“must have been with the intention of the landlord to allow the tenant to remain from month to month, not under the terms of the original lease, but at will of the landlord, with the same monthly rental so long as mutually agreeable, but without security,”—
and by the further fact that the presumption of intention to remain, applicable to farm leases or residence property, does not arise where a building is rented for business purposes.
We are not impressed that these considerations can be treated as sufficient to overcome the legal presumption arising from the holding over by the tenant and the acceptance of rent as provided for in the lease by the landlord. The language before quoted from Scott v. Beecher, supra, is suggestive that there must be some evidence of an agreement or at least an understanding that the holding over was not with the intention to continue the tenancy or some overt act or word indicating an intention to vacate. Even if the provision for security for the rent in the nature of a chattel mortgage be terminated by the expiration of the lease, a question we do not feel called upon to decide, the rights of the parties do not depend upon a renewal of the lease. Under the rule of law before stated, a presumption arises from the holding over by the tenant and acceptance of rent by the landlord, in a case of a lease for a term of years, that the parties intend to renew the tenancy for a period of one year. There is no implication that the lease itself as a binding contract is to be continued in force. Its provisions may be inquired into to determine the terms under which the tenant holds and the nature of his tenancy. In an action to recover the rent, the liability would not be predicated upon the agreement of the tenant to pay as embodied in the lease, but upon the implied contract to pay according to the terms of the lease.
Neither do we think the fact that the premises leased were occupied as a barber shop raises any legal presumption affecting the tenancy. While there is authority supporting the claim that “the character of the property and the use to which the same is put, as well as the periods at which the rent is to be paid” may be taken into consideration (Withnell v. Petzold, 17 Mo. App. 669)‘, we are not impressed that, when applied to the tenancy here created, such considerations so rebut and overcome the presumptions attendant upon the holding over and the acceptance of rent as to justify the findings, made.
We feel constrained to reverse the judgment for restitution rendered by the trial court and dismiss the complaint, with costs to defendant.
Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred. | [
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Steere, J.
The parties to this suit are brothers and sisters, all of or past middle age. Their father, Michael Prendergast, died intestate September 9, 1915, aged about 85 years, at the home of his daughter Minnie Bresnahan, survived by the two sons and two daughters above named. His wife, and their mother, died in 1903. He survived a son Henry who died December 31, 1908, and daughter Etta who died in 1910, both unmarried. At the time of his death Richard, the oldest of his surviving children, was over 53 years of age, and Edward, the youngest, was 37. -At the time of his death Michael Prendergast had lived for over 60 years on a 40 acres of land, called “the home 40,” in Wright township, Ottawa county, where all his children were born and raised. He also had acquired, and owned, appurtenant to or near his home holding, 60 acres more of improved land, making a farm of 100 acres. This with an incidentally mentioned 40 acres of land some distance away, a lot in the small village of Berlin near by and some personal property, constituted his estate.
In February, 1916, plaintiff filed a bill of complaint against defendants in the circuit court of Ottawa county in chancery to enforce specific performance of an alleged oral contract between him and their father claimed to have been made in April, 1910, when the father was about 80 years of age, stated in the bill of compláint as follows:
“That the said Michael Prendergast thereupon urged your orator not to return to his employment in Milwaukee, but to give up his said employment and to remain with him on his farm and to care for him, and he thereupon offered and agreed with your orator that if your orator would remain on the farm with his said father and aid him in keeping the home intact and to furnish to him such aid as he needed and would care for him during the remainder of his life and operate the said 80-acre home and assist him in such other business matters as he might have, that he would deed and convey the said 80 acres to your orator and give the same to him, reserving a life estate only in the 40 acres formerly known as the homestead, to wit: The southeast quarter of the southeast quarter of section 33, in said township of Wright, and that your orator should also have what personal property there was on the farm, including the household effects. That he should operate said 80-acre farm and out of the income of all the real estate should pay the taxes and other general expenses, support and maintain his father and furnish him such moneys for his own personal use as his father might require, the over-plus to belong to your orator.”
All parties to this suit left the old home when young. The two sons, Richard and Edward, left to strike out for themselves and learn other callings than farming when about 17 years of age. Emma Dolan left home when able to earn her own living, worked and went to school, taught, engaged in the millinery business, married, had lived in Grand Rapids for between 25 and 28 years, and was over 45 years of age when her father died. Minnie Bresnahan, except for a short time while teaching school, lived at home until she was married some 27 years before her father’s death, and had since lived near by with her husband, who was a neighboring farmer. Richard, who was over 50 years old when his father died, had lived in Grand Rapids for many years where he had worked up to a responsible position in the wholesale grocery business. The two children who died before their father, Henry and Etta, spent their lives at home with their parents, of whom Henry was the mainstay during his life, working and managing his father’s farm of 40 acres and other land which he acquired. He appears to have been industrious and thrifty, to his own advantage and that of his parents. Before his death he owned 40 acres across the highway from the homestead, 20 of which his parents had previously acquired and deeded to him, he purchasing the other 20 acres. He also bought and paid for 20 acres of improved land a mile west of the homestead, had the place well equipped with farming implements and stocked with horses, cattle, hogs, etc. Upon his death all his property was inherited by his father, the mother being then deceased. While the parents and Henry were alive home-coming of absent members of the family was a frequent and welcome event, the home conditions apparently being pleasant and associations between members of the family congenial.
Edward’s home-leavings to care for himself in some independent calling were periodical and not perma nently successful. His accounts of service in the various kinds of employment which he followed, from one to several months at a time, are punctuated by the recurrent statement that at their termination he went “back home.” He first left home to learn the harness making trade in December, 1895, when 17 years of age, going to the village of Berlin where he remained but a short time and then to Grand Rapids. He returned home the following August and so far as disclosed took no further interest in harness making. He thereafter left home from time to time, engaging for comparatively short periods in various callings in different localities, returning home between engagements. He worked one- season as a harvest hand- and thresher in the grain fields of Minnesota, fired engines at a roundhouse of the Grand' Rapids & Indiana Railway for a month, worked for some months at two different times on the Muskegon interurban, his last service being as a motorman, from which position he was soon discharged because he had a wreck; worked for a few months at concrete construction in Hastings in' the summer of 1907, went to Wisconsin that fall and worked for a construction company which was building an interurban road until February, 1908, after which he went back home and has since remained there or in that vicinity as a farmer. His periodical absences from home while employed in the various pursuits mentioned aggregate, as testified to by him, about three years. He had accumulated nothing up to the time of the alleged contract with his father in 1910 and testified that he then intended to go to Milwaukee “to my old job, to get a start, settle down, get married.” He was then working his father’s farm on shares.
While but remotely relevant, the persuasive tenor of the testimony upon that subject is convincing to the contrary of his claim and counsel’s contention that he had “helped him (his father) to accumulate what property he had and had never received any compensation for it.” If some of the testimony is to be, believed he had been a liability rather than an asset to his parents. He was the youngest child and welcomed home by the old folks whenever he saw fit to return from his periodical home-leavings to engage for himself in some chosen vocation, and welcome to remain home as long as he desired. He went and came as and when he cared to. How steadily or much he worked when home is a matter in dispute.. He testified that he did not feel like tying himself down, and received no regular wages, that his mother was the head of the family and handled the pocket-book, saying “whenever I wanted to go anywhere or wanted clothes, when mother was alive I asked her for money to go to a party or go to play ball. If I needed clothes she gave me money to get clothes.” While living at home he always had a horse and buggy of his own, was a devotee of the gun and the rod, fished and hunted around home and went to the north woods deer-hunting in the fall. While living at home in 1906, he rented an 80-acre farm near by for a year and longer at his option. He worked it one year and gave it up to go on one of his trips to start life in other fields of activity.
After his mother’s death he stayed at Bresnahan's much of the time when in that neighborhood and when Henry died went to the old home in January, 1909, under an oral agreement to work his father’s farm on shares for a year, as he claims, taking a lease of the land Henry had owned, for a year, from the administrator, pending settlement of the estate, which went to his father. This did not prove profitable to him, owing to failure of crops and heavy expenses in the home by reason of his sister’s sickness, as he com plained, and he contemplated returning to the “old job” in Milwaukee, which he had abandoned some two years before in anticipation, as he presents the project, of getting a start, settling down and getting married, in none of which he had made any headway up to that time beyond courting the girl he subsequently married, on August 20, 1910, in part performance of the contract with his father which this bill is filed to enforce, the claimed proposition of the father which it is contended plaintiff accepted and fulfilled being “if Edward Prendergast will get married and give me a good home I will give him these two forties.” The Prendergast family was of the Catholic faith, its members belonging to and attending the St. Mary’s Catholic church in Berlin of which Father Henry Maus was then pastor. He officiated as the clergyman at plaintiff’s marriage and the testimony is undisputed that he urged and hastened its consummation at the solicitation of Michael Prendergast. The parties in interest were all of his congregation and well known to him. The daughter Etta had recently died, leaving plaintiff and his father as the only remaining members of the family at the old home. During his pastoral calls upon the old gentleman the latter solicited his intervention with plaintiff, who he stated was disposed to leave him for employment elsewhere, to stay at home, attend to the farm, get married and make a home for his father, in which case he should “get the homestead.” Believing such a course right and in the interest of all parties, Father Maus acted as an intermediary to that end, urging plaintiff it was his duty and to his interest to comply, with assurances as to what his father had promised and would do.
In this gratuitous service he favorably discussed the matter back and forth with the parties more than once, telling each what the other proposed and promised until the marriage took place, and thereafter made pastoral calls at the home where he found plaintiff and his wife settled and caring for the farm and household, the father expressing himself, in reply to the pastor’s inquiry, as contented and well pleased with the arrangement, saying his own daughter could do no better for him than plaintiff’s wife.
Upon hearing in the trial court plaintiff’s bill of complaint was dismissed without written opinion or oral intimation of the court’s theory of the case or views upon the evidence, so far as the record discloses. This issue is, however, for trial de novo in this court upon the law and facts, and this record contains, we think, certain undisputed evidence convincingly tending to show a distinct understanding or agreement between plaintiff and his' father for a course of conduct and service by the former founded on a promised consideration. Plaintiff’s claim is predicated upon an executed, not executory, contract on his part —a family arrangement between father and son — the father dying before performance on his part, presenting a case of that class in relation to which it Is said by Justice Campbell in Taft v. Taft, 73 Mich. 502:
_ “Under our statute concerning the acts and declarations of deceased persons, in suits against their estates, a great deal of testimony is shut out which would not be shut out between living parties. Family dealings between father and son must generally be beyond sight and hearing of third persons. Their mutual confidence precludes calling in witnesses, as it precluded here the execution of papers. If enough is shown by witnesses to make out all the elements of a contract, we must assume that much must have existed further which no third party knew.”
Here there is an apparently disinterested and truthful witness with personal knowledge of the occasion and circumstances of the arrangement who testifies to elements of a contract between the parties of the nature claimed by plaintiff, though it must be con ceded not to the extent claimed. What actually passed between father and son, neither can disclose. One is precluded from testifying to it by death and the other by statute. Plaintiff’s proofs wholly fail to sustain the allegations of his bill that by their contract he was to have the personal property on the farm, or that the father reserved a life estate in one of the 40 acres, neither are we impressed that his evidence sustains by a fair preponderance his claim to the 40 acres of land across the highway from his father’s homestead, which belonged to Henry up to the time of his death.
Defendants’ contention is that no contract is established by a preponderance of evidence, and in any aspect of the case that there is no proof of the contract alleged in plaintiff’s pleadings. To this proposition their counsel say, “If there was no such contract as alleged in the bill of complaint, then it matters not what was done by the plaintiff after he got married,” and contending that the only proof which could be claimed to disclose the elements of a contract is that of Father Maus, urge that his testimony, considered in its most favorable light, does not make out the contract pleaded.
That recovery can only be had upon proofs bringing plaintiff’s claim within the scope of his pleadings cannot be questioned; but claiming too much does not necessarily preclude all recovery; it does not follow that he must prove every allegation and recover in full, or not at all. The rule of secundum, allegata et probata, means no more than that recovery cannot be had on a claim foreign to or not compassed by the pleadings; that recovery, whether in whole or part, must be according to that which is alleged and proved.
It would avail nothing and afford no useful information to follow counsel in their review and arguments over the range of family affairs and conflicting testi mony contained in this ample record of over 500 pages. Items of evidence can be picked out and arguments made tending plausibly to sustain the contentions of either side; but a parol contract for conveyance of real estate should be clearly established in its essentials by a convincing preponderance of the evidence to warrant decree for specific performance by a court of equity, and as to all but the homestead 40 acres, we find no occasion to disturb the result reached by the trial court.
The old homestead, or home 40, was distinctive in that it was long so known and designated. It had been the home of Michael Prendergast and his family for 60 years. In all the proof by both sides as to what he asserted or promised or prophesied or denied in relation to his real estate, whether separately referred to or in connection with other land, in whatever form the testimony runs it shows a uniform expression of intent on his part that plaintiff should have the homestead 40, sometimes, as variously testified to, saying that Edward did own it and sometimes that he would get it. Of his six children raised in that home the three defendants in this suit had gone elsewhere early in life and long ago became established in homes of their own. Of the three who stayed with their parents as members of the family for most or all of their lives, with no other home, Henry and Etta were dead and Edward alone remained. He was the youngest child, at home working his father’s farm when Etta died. It would seem probable that the father desired to induce him to consummate his prospective marriage, settle down and make a permanent home for both at the old homestead. That plaintiff had other plans for his married life is not disputed. Father Maus had been their pastor for about 12 years, buried their dead and ministered to their spiritual wants. It was not unnatural that Michael should ask his assist anee or that he should approve and comply.* He had been transferred from that parish to Saginaw between 5 and 6 years before this case was tried and when the controversy arose was visited by plaintiff and his attorney to interview him on the subject. When they made known their mission and proceeded to talk of the case to him he checked them with the statement, as he testified, that he had rather write a letter giving his impressions, saying in part: “Leave me convey just my impressions there, I said excuse me,- gentlemen, I turned around to my typewriter and there is the result.” The letter is as follows:
“St. Andrew’s Church.
“Rev. H. P. Maus, Pastor.
“603 North Hamilton Street, Saginaw, W. S., Mich.
“Feb. 5, 1916.
“To Whom it May Concern:
“On the occasion of the marriage of Edward Prendergast to Elizabeth Burns, I recall distinctly that I urged and expedited the marriage at the request of Michael Prendergast, to afford him a home. While I cannot quote the exact words, it is my distinct recollection that Edward was to have the old homestead for the care of his father. In fact, I was much surprised to learn that the property had not been deeded over to him.
“I am pleased to state that Michael Prendergast repeatedly informed me that Edward and his wife made him a good home and were very kind to him.
“H. P. Maus, “Pastor.”
Following this interview Richard Prendergast visited Father Maus upon a like mission, who as with the others declined to discuss the subject at length and said to Richard, as the latter testified, “I am surprised that the matter has not been settled, you haven’t given the homestead to Edward as agreed by your father.”
Called as a witness in the case Father Maus was examined at length and in critical detail. Having been absent from that locality for several years, and no special reason to charge his mind with the subject, he frankly admitted his inability to remember exact dates, language used in most instances and many details proposed to him by suggestive questions, but his asserted remembrance and testimony were distinct and positive as to an agreement between father and son, in harmony with the letter quoted, to which he added remembered details, relating that in one interview, when he told Michael what Edward was willing to do, the old man said, “Well, Father, he is going to get the homestead here.” When asked in one part of his cross-examination, “You don’t know what land he referred to?” he answered, “In fairness I can’t say.” ■His testimony indicates fairness and cautious sincerity. He knew that he left Berlin in the fall of 1916, that Edward was married during the summer and at once settled with his wife at the old home, where he subsequently visited them and the father; that, there had been sickness and death in the family earlier in the year and he had visited there quite frequently; that he had participated as before related in bringing about this agreement and Edward’s marriage as a step in its performance, and that his participation began some months — from two or three to five months —-before Edward was married. He knew the Prendergast homestead well from the first year he went there, knew they had land elsewhere, and Henry owned some across the road from the homestead, but what their holdings amounted to he did not know; he could not swear the old gentleman ever spoke of the homestead as being 80 acres, although from some source he had believed it comprised an 80, and said in answer to the question,
“You believed?
“A. Well, built on my knowledge, the time, evidently it has been incorrect, well, it is a 40 instead of an 80, so they claim, I don’t know anything about it now except what I hear.”
He does, however, swear positively and convincingly to the essential elements of a valid contract by Michael for a consideration to give plaintiff the homestead, or the “homestead here,” well known to the contracting parties as the “home 40” and that the old man assured him “he was to transfer that property.” We are not impressed with the legal force or probative value of testimony relative to Michael’s not always consistent remarks on the subject by which it is sought to include the other 40 acres in this contract.
Specific performance will be awarded as to the old homestead 40 acres, and the decree, modified in harmony with this opinion, otherwise affirmed with costs of this court to plaintiff.
Bird, C. J., and Ostrander, Moore, Brooke, Pellows, Stone, and Kuhn, JJ., concurred. | [
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BROOKE, J.
(after stating the facts). The facts upon which the industrial accident board based its conclusion that claimant’s decedent died from the effects of an accidental, personal injury arising out of and in the course of his employment are extremely meager. They m^,y be briefly summarized as follows:
(1) During the 23 hours preceding his death decedent had been engaged at intervals in cleaning out wood ashes from the burner.
(2) At 6:30 in the evening he was found by claimant lying upon his bed fully clothed in a comatose condition which continued until 6 o’clock the next morning with the exception of about an hour at midnight when he walked about the room being apparently in great distress.
(3) The physician called to attend him at 6:30 in the morning with the aid of a stomach pump removed from the stomach of the decedent a large quantity of alkaline liquid and about a teacupful of wood ashes.
(4) Decedent died from alkaline poisoning attributable to the presence in the stomach of lye and ashes.
The following conclusions would seem to- be warranted by the record: Plaintiff’s decedent did not die as the result of an occupational disease; in other words, the lye and ashes found in his stomach did not get there through the performance of his work in the ordinary way. This fact seems to be made clear by the testimony of the witness, Sterk, who himself had removed the ashes from the burner at least 25 times. It is likewise to be noted that the work was done but once each week so that the deleterious effect of the ashes taken into the stomach in the ordinary course of the employment, if any, could scarcely be said to be cumulative from period to period.
There is no evidence tending to show that on the night in question plaintiffs decedent had with him a pail of water into which large quantities of ashes might have fallen in the course of the work. There is no evidence that decedent drank from a pail of water heavily impregnated with ashes. There is evidence of the physician to the effect that the liquid taken from the man’s stomach would be: “A little burning,” that: “It would burn and taste nasty,” and that:
“To swallow something that hasn’t a pleasant taste involves an effort of the will.”
Counsel for claimant assert that the foregoing facts are sufficient to support the inference indulged in by the board to the effect that decedent swallowed the ashes and alkaline liquid accidentally. They point out that, it being undisputed the lye and ashes were in the stomach and caused his death, the only possible inferences are:
(1) That they were taken into the stomach by the decedent accidentally, or
(2) That they were so taken wilfully and with suicidal intent and they rest upon the presumption against suicide, citing Wishcaless v. Hammond, Standish & Co., 201 Mich. 192.
This position is met by counsel for appellant with the argument that the presumption arises only where the facts and the logical deductions therefrom point with equal cogency to suicide or accidental death and that in the case at bar the accidental theory is negatived by the testimony of the doctor that the substance found in the stomach of the decedent could not have been taken by decedent without a conscious effort because of its unpleasant taste. The rule to be adopted by the board is set out clearly in the case of Ginsberg v. Adding Machine Co., 204 Mich. 180, in the following language:
“It is the province of the board to draw the legitimate inferences from the established facts and to weigh the probabilities from such established facts. Wilson v. Phœnix Furniture Co., 201 Mich. 531. But the inferences drawn must be from established facts; inference may not be built upon inference, possibilities upon possibilities, or inferences drawn contrary to the established facts, contrary to the undisputed evidence. If an inference' favorable to the applicant can only be arrived at by conjecture or speculation the applicant may not recover. So if there are two or more inferences equally consistent with the facts, arising out of the established facts, the applicant must fail” — citing many cases.
Applying that rule to the facts in the case at bar and in further consideration of the rule which places the burden of establishing the claim for compensation on those seeking the.award, we are constrained to the view that the inference that the liquid and ashes found in decedent’s stomach and which caused his death were taken into the system by the decedent with suicidal intent, is at least as reasonable as that they found entrance to the stomach accidentally, and where two inferences equally consistent with the facts arise out of established facts, one involving liability on the part of the employer under the act and the other relieving him from liability, the applicant must fail.
The award must be vacated.
Ostrander, Steere, Fellows, and Stone, JJ., concurred with Brooke, J. | [
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Mackenzie, J.
Plaintiffs appeal as of right from a judgment of no cause of action entered following a bench trial. We affirm.
Plaintiffs are the would-be buyers of a house owned by Emma Wyant. Defendants are the real estate broker with whom Wyant listed the house for sale and one of its sales agents, Ted Slater. After some negotiations, defendant Slater and plaintiff Stan Andrie drafted a purchase offer for Wyant’s house, which defendant presented to Wyant. Wyant, who had rejected an earlier offer by plaintiffs, accepted the offer and signed a purchase agreement, uninformed by Slater of a change in terms from plaintiffs’ previous offer. Later that day, Wyant attempted to stop the trans action. When plaintiffs learned that Wyant wished to void the agreement, plaintiffs contacted their attorney and Slater, both of whom assured plaintiffs that the agreement with Wyant was valid. Plaintiffs then sold their home through defendants. Wyant was ultimately granted rescission of the purchase agreement, in part because of Slater’s breach of fiduciary duty in inadequately presenting plaintiffs’ offer to her. In this related suit, plaintiffs claimed that defendants were liable to them on several theories, including negligence. Specifically, plaintiffs claimed that Slater breached his duty to plaintiffs to accurately and truthfully present their offer to Wyant.
The trial court found that Slater owed a duty to Wyant, his principal, to accurately present a prospective purchaser’s offer, but that he owed no such duty to plaintiffs as prospective buyers. We agree.
Real estate brokers and salesmen are the agents of the seller, their principal. See McMullen v Joldersma, 174 Mich App 207, 212; 435 NW2d 428 (1988); Minchella v Fredericks, 138 Mich App 462, 467-468; 360 NW2d 896 (1984). Brokers and salespersons therefore owe the seller a fiduciary duty, which presumably includes the duty to disclose fully and fairly the material terms of any offers to purchase the seller’s property. See Horvath v Langel, 276 Mich 381, 385; 267 NW 865 (1936).
We have found no Michigan cases addressing the issue whether a realtor may also owe a duty to a prospective real estate buyer to properly convey an offer to the seller. An analogous issue was addressed in Wilson v Haimbaugh, 482 NE2d 486 (Ind App, 1985), however. In that case, the plaintiff-purchaser sued the seller’s agent for failing to procure or furnish title insurance or a certified continuation of abstract for real property sold to the purchaser. The plaintiff argued that the defendant-agent breached a duty owed to the seller, causing the plaintiff damages. Id. at 487. In reversing a lower court decision in favor of the plaintiff-purchaser, the Wilson court stated:
[Plaintiff] has not shown, nor has this Court been able to find, any authority for the proposition that a vendor’s agent owes a duty to procure or furnish title insurance or a certified continuation of abstract to the purchaser. Rather, [plaintiff] maintains that he should recover because of the agent’s negligence in performing the duty she owes to her principal. However, an agent who negligently fails to perform duties owed to her principal is not thereby liable to a person whose economic interests are thereby harmed. Restatement Agency, 2d, § 357 (1958).
Therefore, as [the agent] did not breach any duty which she owed to [plaintiff], the trial court erred in awarding a judgment in favor of [plaintiff] on his claim against [the agent]. [Id.]
A similar result was reached in Haldiman v Gosnell Development Corp, 155 Ariz App 585; 748 P2d 1209 (1987). The plaintiff in Haldiman entered into a home-purchase agreement prepared by the developer’s agent, a licensed real estate salesman. When she was unable to close escrow on the new home within the agreed time, she forfeited her earnest money deposit pursuant to the sales contract. The plaintiff sued the developer, claiming that the sales agent breached a duty to her, as the purchaser, to clearly explain the contract provision allowing such forfeiture in the event of an inability to close escrow on the stated date. Id. at 588. In affirming the trial court’s grant of summary judgment in favor of the defendant, the Haldiman court held that absent a broker-client relationship between the plaintiff-purchaser and the agent, there was no breach of a duty to uphold professional real estate standards by the agent. Id. at 590.
A similar conclusion was reached in Allen v Lindstrom, 237 Va 489; 379 SE2d 450 (1989). There, in one of three consolidated cases, the prospective purchasers sued a realtor for failure to transmit their offer to the sellers. The prospective purchasers-plaintiffs argued that such behavior was against the rules and regulations of the Virginia Real Estate Board which require every realtor to promptly submit to the seller every offer received. Id. at 498. The Allen court concluded that, while the realtor may have owed a duty to the sellers, he did not owe a duty to the prospective purchasers to communicate an offer to the sellers. Id.
Unless a legal duty exists, there can be no actionable negligence. Duvall v Goldin, 139 Mich App 342, 347; 362 NW2d 275 (1984). Duty is essentially a question whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person. Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977). In negotiating a real estate sale, any relationship between the seller’s agent and the potential buyer is a commercially antagonistic one, with each side working for his best advantage and not for the benefit of the other. We therefore conclude that a seller’s real estate broker or agent owes no duty to a potential buyer to properly convey a purchase offer to the seller.
Affirmed.
Reilly, P.J., concurred. | [
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Per Curiam.
Plaintiff Meadow Bridge Condominium Association appeals as of right from a circuit court order granting defendants’ motion for summary disposition. MCR 2.116(C)(8), (10). We reverse.
The facts, which appear to be largely undisputed, are as follows. Meadow Bridge Condominium Association is a nonprofit corporation formed to administer and manage the affairs of Meadow Bridge Condominium. Defendants Humbert and Jeanette Bosca are co-owners of a unit in Meadow Bridge Condominium. The condominium bylaws provide that all co-owners are subject to the condominium bylaws, rules, and regulations. The Association Board of Directors is charged with the specific responsibility of enforcing the provisions of the various condominium documents, including the bylaws.
Among other things, the condominium bylaws provide that "no animals shall be maintained by any co-owner unless specifically approved in writing by the Association.” The bylaws authorize the association to "adopt such additional rules and regulations with respect to animals as it may deem proper.” The association can also remove any animals determined to be in violation of bylaw restrictions.
The board of directors granted written approval to pet owners, including dog owners, for a number of years. However, in March 1985, because of numerous complaints from residents, the board adopted a rule and regulation prohibiting new dogs. Co-owners were allowed to keep any dogs that had been properly licensed and registered with the association before the adoption of the 1985 regulation. The ownership of other animals, such as cats, was not affected by the 1985 regulation.
In 1987, defendants obtained a small dog. The board denied defendants’ petition to keep the dog, and defendants’ refused to have the dog removed. Plaintiff filed this action to enforce the 1985 regulation.
The essential question in this case is whether the 1985 board action constituted a rule and regulation or an amendment of the condominium bylaws. While the board has the authority to promulgate reasonable rules and regulations, an amendment requires approval of sixty percent of the co-owners. Because the association did not hold a vote on the 1985 action, a finding that the action was an amendment would render it invalid and unenforceable. The trial court ruled that the board action was an amendment and accordingly granted defendants’ motion for summary disposition. We find that the trial court erred.
Defendants suggest, and we agree, that a rule or regulation is "a tool to implement or manage existing structural law,” while an amendment "presumptively changes existing structural law.” See Black’s Law Dictionary (5th ed). In this case, the existing original bylaw states that "no animals shall be maintained by any co-owner unless specifically approved in writing by the Association.” The 1985 regulation is not inconsistent with the original bylaw and does nothing to change the general rule. The 1985 regulation merely sets out the board’s decision to implement or manage the pet ownership rule by prospectively denying approval of new dogs.
It is well settled that individual interest must often yield to the interest of the condominium community. This Court has noted, quoting Hidden Harbour Estates, Inc v Norman, 309 So 2d 180, 181-182 (Fla App, 1975):
"[I]nherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic subsociety of necessity more restrictive as it pertains to use of condominium property that may exist outside of the condominium organization. The Declaration of Condominium involved herein is replete with examples of the curtailment of individual rights usually associated with private ownership of property.” [Cohan v Riverside Park Place Condominium Ass’n, Inc (After Remand), 140 Mich App 564, 569-570; 365 NW2d 201 (1985).]
Despite defendants’ belief that an exception should be made for their small dog, we find that the board had the authority to issue the 1985 regulation. Summary disposition was improperly granted.
Defendants also allege that plaintiff did not file a timely appeal in this matter. We note that this issue was not raised in a cross appeal and therefore is not preserved for appeal. In any event, our review of the court file reveals that plaintiff properly filed its appeal within twenty-one days of the entry of the order in this case. MCR 2.602(A), 7.204(A)(1)(a).
Reversed. | [
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Per Curiam.
Creative Industries Group, Inc., appeals as of right from a circuit court order affirming a State Tax Commission decision denying it an Industrial Facilities Tax Exemption Certificate.
The City of Auburn Hills established an industrial development district pursuant to the plant rehabilitation and industrial development districts act, MCL 207.551 et seq.; MSA 7.800(1) et seq. The act provides for tax exemptions for businesses if they meet certain requirements.
On April 2, 1986, construction of a building for Creative was begun. On August 5, 1986, a Creative executive met with the city manager to discuss the issuance of a certificate. At that time, the city manager said Creative would have to obtain the City of Detroit’s approval for the transfer of jobs, as well as the approval of the Auburn Hills City Council. The city manager also told Creative that the application for an exemption must be filed within six months of the commencement of construction. He stated that missing the deadline would cause Creative to lose only one year of eligibility for the exemption.
Creative subsequently discovered that missing the six-month filing requirement would exclude them entirely from the exemption. Creative then filed a formal, written application for the exemption with the city on December 9, 1986.
The tax commission denied Creative’s application for the tax exemption certificate on the ground that the application was filed later then six months after construction on the property had commenced. Creative filed a petition for review of this decision in the circuit court, which entered an order affirming the commission’s decision. Creative now appeals as of right from this circuit court order. We affirm.
i
Creative first contends that the circuit court decision should be reversed because the State Tax Commission failed to set forth findings of fact and conclusions of law. MCL 24.285; MSA 3.560(185).
Creative failed to raise this issue at either the administrative or circuit court level, and therefore Creative cannot urge review of the issue on appeal. Allied Bldg Credits, Inc v Mathewson, 335 Mich 270; 55 NW2d 826 (1952).
ii
Creative next argues that the decision of the State Tax Commission contained a substantial and material error of law. Specifically, creative argues that the circuit court mistakenly believed that it did not have the power to grant the relief requested.
The act under which the exemption requested by Creative would be granted provides that unless all the requirements, including the six-month deadline, are met an exemption certificate shall not be granted. MCL 207.559(2)(c); MSA 7.800(9)(2)(c).
Creative points out in its supplemental brief that the statute subsequently has been amended to provide relief in cases such as this; however, that amendment is not applicable to the case before us. The circuit court did not err in applying the relevant law in this case.
in
Creative next argues that the court applied an erroneous standard of review. It contends that the court had the equitable power to grant it the relief requested and was not limited in its review by the Administrative Procedures Act. We disagree.
An appeal from a refusal to issue an exemption certificate is to be in the manner and form provided by 1969 PA 306, the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., as amended. MCL 207.570; MSA 7.800(20). Thus, judicial review must be in the same manner and form as provided for in the Administrative Procedures Act. Bar Processing Corp v State Tax Comm, 171 Mich App 472; 430 NW2d 753 (1988).
The apa sets forth the scope of review, providing that an agency’s order is to be set aside only if substantial rights of the petitioner have been prejudiced because of certain conditions. None of the conditions are present here.
Tax exemption statutes are strictly construed against the taxpayer and in favor of the taxing agency. Bar Processing Corp, supra. Equitable relief is not appropriate.
iv
Creative also argues that it is entitled to the issuance of a certificate on grounds of constructive filing, estoppel, substantial compliance, or mutual mistake.
It is Creative’s position that because of the erroneous representations made by the city official, it is entitled to the exemption certificate. Creative never asserts that it relied upon anything said or done, actions or inactions, by the tax commission. Representations by the city cannot be imputed to the tax commission in support of the issuance of an exemption certificate in Creative’s favor.
v
Finally, Creative argues that denying it the relief requested would frustrate the intent of the Legislature in adopting the plant rehabilitation and industrial development districts act.
Before 1982, a party was allowed twenty-four months between the commencement of construction and the filing of an application for an exemption certificate. This time period was then shortened to six months. Clearly, granting the relief requested would frustrate the Legislature’s intent in amending the act to shorten the time interval.
We find that the court did not err in upholding the tax commission’s order, and affirm.
MCL 24.306(1)(a)-(f); MSA 3.560(206)(1)(a)-(f) provides:
(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of the agency.
(c) Made upon unlawful procedure resulting in material prejudice to a party.
(d) Not supported by competent, material and substantial evidence on the whole record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
(f) Affected by other substantial and material error of law. | [
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Per Curiam.
Plaintiff appeals as of right from an order of the circuit court granting summary disposition in favor of defendants Ernest and Julia McCausland. We affirm.
In his complaint, plaintiff alleges that on or about December 6, 1987, he was assaulted and battered by a security guard employed by defendant Jabar Security and Detective Agency, Inc., on property owned by the McCauslands and leased to defendant Elba, Inc. Defendant Elba operates a business known as Harpo’s Concert Theatre on the premises, and contracted with Jabar to provide outside security for its patrons. There was no contractual relationship between the McCauslands and Jabar.
Plaintiff claims that the McCauslands knew or should have known of an ongoing pattern of violence on the leased property, but negligently failed to take any action to correct the problem. However, we agree with the trial court that on the basis of Williams v Detroit, 127 Mich App 464; 339 NW2d 215 (1983), the McCauslands, as landlords, had no duty to provide security services of their own on the leased premises. There are no common areas over which the McCauslands may have had a "slight” duty to investigate possible dangerous conditions and take preventive measures. See Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 502, n 17; 418 NW2d 381 (1988) (distinguishing Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 [1975]).
Nor do we find under these facts that the Mc-Causlands had a duty to take action directly against defendant Elba on the basis of Clark v Texaco, Inc, 55 Mich App 100; 222 NW2d 52 (1974), cited by plaintiff. The McCauslands were not involved in any way with Elba’s business; consequently there is no question of fact which would give rise to a claim of agency by estoppel or apparent authority. See Green v Shell Oil Co, 181 Mich App 439; 450 NW2d 50 (1989).
Affirmed. | [
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Murphy, J.
Following a jury trial, defendant was convicted of felonious driving, MCL 752.191; MSA 28.661, and of operating a vehicle while under the influence of intoxicating liquor, MCL 257.625; MSA 9.2325. Defendant was also convicted by a jury of being a second-felony offender, MCL 769.10; MSA 28.1082. Defendant was sentenced to two to three years’ imprisonment for the felonious driving conviction, and he received a ninety-day sentence for the ouil conviction. Defendant appeals as of right. We affirm.
i
Defendant first contends that the trial court erred in failing to quash the supplemental information. Defendant seeks to collaterally attack his 1978 guilty plea and argues that the trial court erred when it denied his motion to quash the supplemental information.
A conviction which is defective undér People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), can be challenged by a timely motion by the defendant to quash the supplemental information or to strike from the supplemental information the defective conviction. People v Crawford, 417 Mich 607, 613; 339 NW2d 630 (1983). In order to meet constitutional requirements for acceptance of a guilty plea, the defendant must waive his rights to a jury trial, to confront witnesses, and against self-incrimination, and the record must show that the defendant was informed of each of these rights. Jaworski, supra, 28-29; People v Nydam, 165 Mich App 476, 478; 419 NW2d 417 (1987). Collateral attack of a prior guilty plea is limited to felony convictions where the constitutional requirements of Jaworski were not met. Crawford, supra, 613; People v Schneider, 171 Mich App 82, 87; 429 NW2d 845 (1988); Nydam, supra, 478.
A review of the plea transcript shows that defendant was advised of the rights identified in Jaworski and acknowledged his understanding of each of those rights. Accordingly, defendant may not collaterally attack his 1978 guilty plea.
ii
Defendant next contends that his conviction of and punishment both for ouil and felonious driving constitute double jeopardy in violation of the state and federal constitutions, US Const, Am V; Const 1963, art 1, § 15. We disagree.
The Double Jeopardy Clauses of the Michigan and United States Constitutions consist of three separate protections. First, the state is prohibited from seeking a second prosecution for the same offense after acquittal. Second, the state is prohibited from seeking a second prosecution for the same offense after conviction. Third, the state is prohibited from imposing multiple punishment for the same offense. People v Sturgis, 427 Mich 392, 398-399; 397 NW2d 783 (1986); People v Wakeford, 418 Mich 95,103; 341 NW2d 68 (1983).
The protection against multiple punishment for the same offense is designed to insure that the courts impose sentences within the limits set by the Legislature. Sturgis, supra, 399. The scope of the protection is determined by the definition of "same offense.” Id. The Legislature may authorize penalties for what would otherwise be the same offense. Id., 403. Cumulative punishment of the same conduct under two different statutes in a single trial does not violate the Double Jeopardy Clause. Id.
Defendant argues that his convictions of ouil and felonious driving constitute multiple punishment of the same offense because, under the facts of his case in which proof of his intoxication was also the sole proof of negligence, ouil was a necessarily included lesser offense of felonious driving. Defendant relies on People v Dickens, 144 Mich App 49; 373 NW2d 241 (1985), in which this Court held that a defendant could not be convicted of both ouil and negligent homicide, MCL 750.324; MSA 28.556, where the evidence that the defendant had operated a vehicle under the influence of liquor was essential to proving the negligence element of the negligent homicide charge.
However, in People v Robideau, 419 Mich 458; 355 NW2d 592 (1984), our Supreme Court rejected the so-called actual-evidence or factual double jeopardy test applied by this Court in Dickens. The present test for double jeopardy in a "multiple punishment for the same offense” situation is to determine the intent of the Legislature. Sturgis, supra, 405; Robideau. When two statutes prohibit violations of the same social norm, even if in a somewhat different manner, it may be concluded that the Legislature did not intend multiple punishment. Robideau, supra, 487. On the other hand, statutes prohibiting conduct that violates distinct social norms can generally be viewed as separate and as permitting multiple punishment. The key is to identify the type of harm the Legislature intended to prevent.
In the past, this Court has stated, without elaboration, that the statutes prohibiting ouil and felo nious driving are "intended to prevent the same or similar harm or evil, not a substantially different, or a very different kind of, harm or evil.” People v Stewart, 138 Mich App 629, 636; 361 NW2d 16 (1984). Nevertheless, we conclude that the statutes at issue in this case, although related, are sufficiently distinct in purpose to permit separate and multiple punishment.
The language of a statute may indicate a legislative intent to create a series of offenses prohibiting different phases of conduct, with a separate penalty for each. However, legislative intent may sometimes appear from language creating a hierarchy of offenses, depending on the presence or observance of certain aggravating factors. The former structure is indicative of legislative intent to create separate offenses which are separately punishable; the latter structure indicates an intent to permit only a single appropriate offense and conviction. Sturgis, supra, 407. Our Supreme Court has rejected the rule articulated in Blockberger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), as a conclusive test. It has, nevertheless, approved the test as a helpful tool in determining whether there are two offenses or only one. Sturgis, supra, 409. By asking whether two separate statutes each include an element the other does not, we may determine whether the Legislature manifested an intent to serve two different interests in enacting each statute. Id.
The ouil statute, MCL 257.625; MSA 9.2325, is a provision of the Vehicle Code which prohibits a person who is under the influence of liquor or whose blood-alcohol level is 0.10 percent or greater from operating a motor vehicle on a highway or other places open to the public, including parking lots. The offense is proved without regard to the defendant’s motive or intent, People v Raisanen, 114 Mich App 840; 319 NW2d 693 (1982), or to the results of his conduct. A defendant may be convicted of ouil even if he is observed driving in a normal fashion. People v Walters, 160 Mich App 396, 402-403; 407 NW2d 662 (1987). Thus, ouil is a status crime which focuses only on the fact that the defendant operates an automobile while he is intoxicated.
Felonious driving, MCL 752.191; MSA 28.661, a provision of the penal code, prohibits a person from driving a vehicle upon the highway "carelessly and heedlessly in wilful and wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property and thereby injuring so as to cripple any person, but not causing death.” Felonious driving shares with ouil the common element of operating a vehicle upon the highway. However, while the defendant’s intent is irrelevant to the offense of ouil, a defendant must have a culpable state of mind to be guilty of felonious driving. People v Ames, 60 Mich App 168, 171; 230 NW2d 360 (1975). To show that a defendant acted in wilful and wanton disregard of safety, something more than ordinary negligence must be proved. People v Chatterton, 102 Mich App 248; 301 NW2d 490 (1980). But see People v Marshall, 74 Mich App 523; 255 NW2d 351 (1977). Moreover, the defendant’s culpable conduct must cause a crippling injury to another person. Felonious driving is a crime against a person which focuses on both the culpable nature of the defendant’s actions and the resultant harm.
This clearly is not a case in which "one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute.” Robideau, supra, 487. The only com mon element shared by felonious driving and ouil is the operation of a vehicle upon the highway. However, felonious driving does not require proof of intoxication, nor are negligence or a crippling injury necessary elements of ouil. The offenses, therefore, do not form a hierarchy in which the greater offense of felonious driving is proved by a showing of some aggravating factor beyond the elements of ouil.
The most significant indicator of a legislative intent to authorize separate conviction and punishment for both ouil and felonious driving is the types and amounts of punishment set forth in the statutes themselves. Felonious driving is a two-year felony. Ouil is a misdemeanor, punishable by ninety days in jail or a fine of not less than $100 or more than $500, or both. Moreover, the ouil statute mandates that a person convicted of ouil shall have his driver’s license suspended for a period of six months to two years. MCL 257.625(4); MSA 9.2325(4). Additionally, the Legislature has provided sentence enhancement provisions for repeat offenders: Upon a second ouil conviction, the defendant may be sentenced to one year in prison or a $1,000 fine, or both, and his driver’s license must be revoked, MCL 257.625(5); MSA 9.2325(5); the defendant’s third ouil offense is a felony, MCL 257.625(6); MSA 9.2325(6); finally, the sentencing court may order a convicted ouil offender to perform community service and to participate in substance abuse rehabilitation programs, MCL 257.625(7), (8); MSA 9.2325(7), (8).
Felonious driving is an offense under the Penal Code aimed at punishing the wilfully and wantonly reckless driver who causes a crippling injury to another person. By contrast, the ouil statute, while admittedly punitive in nature, also clearly shows a remedial legislative goal of preventing future occurrences of drunk driving by rehabilitating the offender and by keeping him off the road through suspension and revocation of his driver’s license. To us, it is contrary to the legislative intent underlying the ouil statute to hold that a person, such as the defendant in the present case, who commits the offense of felonious driving when he is under the influence of liquor cannot also be convicted and sentenced for ouil. Such a holding would result in the defendant not being subject to sentence enhancement for repeat ouil offenses until he had committed at least two other ouil offenses. Thus, the prosecutor would be forced to choose between charging the ouil offense to preserve the possibility of sentence enhancement in the future or charging the felonious driving for the crippling injury to another person. Moreover, the legislative goal of protecting the public and rehabilitating the drunk driver would be thwarted because, although a defendant convicted only of felonious driving could be sentenced to prison, he could, nevertheless, retain his driver’s license and would not necessarily be ordered to participate in substance abuse counseling.
We conclude that the structure of the ouil statute shows a legislative intent to separately punish the offense of ouil.
hi
Defendant next contends that the trial court did not sufficiently instruct the jury regarding the burden of proof in defendant’s habitual offender trial. However, defendant failed to object to the instructions given and has waived this issue for appeal absent manifest injustice. MCR 2.516(C); People v Watkins, 178 Mich App 439, 450; 444 NW2d 201 (1989). Manifest injustice will not result from our failure to address this issue.
IV
Defendant also contends that the trial court erred by allowing into evidence a hearsay statement made by defendant’s passenger that concerned defendant’s whereabouts earlier in the evening of the offense.
Detective Geerlings testified that defendant’s passenger had told him shortly after the accident that the two had been celebrating earlier in the evening and that defendant had remained silent. The testimony was admitted over defendant’s objection, apparently as an adoptive admission by defendant pursuant to MRE 801(d)(2)(B). People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), prohibits the use of adoptive admissions in criminal trials, and the prosecution concedes that it was error to allow this testimony. However, because the erroneously admitted testimony was cumulative of other properly admitted evidence, the error was harmless. People v Dixon, 161 Mich App 388, 396; 411 NW2d 760 (1987).
v
Defendant finally contends that he was denied a fair trial because the prosecutor, in his closing arguments, made an improper civic-duty argument. During closing arguments, the prosecutor stated:
If you drive while intoxicated, that has to show gross negligence. Think of all that you heard, all that you read. There have been movies. There have been articles in the newspapers always about the dangers of drunk driving. There are seminars taught on it. Everyone knows about the dangers of drunk driving. When you think of drunk driving, do you not think of the potential dangers in volved? No one can say at this point — not with the awareness you have now — but to get into a car and drive on the road while intoxicated is not a potentially dangerous situation.
And accident is the wrong word. I apologize. Collision.
You just don’t have that. You have the scientific evidence, the .17, and it confirms all of our worst fears and, for that reason, I’m asking you to bring back a verdict of guilty on both charges. I’m asking you because justice demands it, because it is the right thing to do.
We note that defendant failed to object to these remarks by the prosecutor. Accordingly, appellate review is precluded unless the prejudicial effect could not have been cured by a cautionary instruction and failure to consider the issue would result in a miscarriage of justice. People v Marji, 180 Mich App 525, 537; 447 NW2d 835 (1989). After reviewing the record, we conclude that there has been no miscarriage of justice.
The majority of these remarks are proper argument which urged the jury to reach a finding of "more than ordinary negligence” on the basis of the evidence and their own common sense and experience. Only the last sentence may possibly be construed as an appeal to civic duty. Such arguments are generally condemned because they inject issues into the trial that are broader than a defendant’s guilt or innocence of the charges and because they encourage the jurors to suspend their own powers of judgment. People v Wright (On Remand), 99 Mich App 801, 809; 298 NW2d 857 (1980). However, we find this remark to have been relatively innocuous for a civic-duty argument and any resultant prejudice could have been cured had an instruction been requested. Moreover, the evi dence against defendant was strong. Therefore, we do not find this remark to be grounds for reversal. People v Swartz, 171 Mich App 364, 373-374; 429 NW2d 905 (1988).
Affirmed.
Maher, J., concurred. | [
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Per Curiam:.
Defendant pled guilty of receiving and concealing stolen property, MCL 750.535; MSA 28.803, and was sentenced to two to five years in prison. She now appeals as of right, claiming that her sentence is an abuse of judicial discretion. We affirm.
Defendant is forty-three years old. Although she has a record of a misdemeanor conviction, the instant offense is her first felony conviction. The sentencing guidelines range in this case was zero to six months. The actual minimum sentence is four times the maximum sentence recommended by the guidelines. The trial judge, however, repeatedly referred to defendant as a "female Fagan” who directed younger persons to steal.
The judge decided to hold an evidentiary hearing to determine the extent of defendant’s participation in certain incidents involving stolen property. The testimony at this hearing indicated that defendant directed her codefendants to certain houses where they were to take certain specific pieces of property and, on occasion, accompanied them on other forays. She also provided a truck for hauling the stolen goods and assisted in unloading the truck and storing the items in her barn.
Because of defendant’s participation, the court did not abuse its discretion in exceeding the guidelines, and it stated sufficient reasons on the record for exceeding the guidelines. See People v Ewing, 435 Mich 443; 458 NW2d 880 (1990). Her participation in the criminal activity was not adequately reflected in the guidelines variables and, thus, the trial court did not abuse its discretion in departing from the guidelines. People v Milbourn, 435 Mich 630, 659-660; 461 NW2d 1 (1990). Nor does the extent of the departure violate the principle of proportionality. A sentence of from two to five years, which is not even the maximum penalty which could have been imposed, is proportionate to the seriousness of the circumstances in this case surrounding the offense and the offender. Id., at 635-636.
While we affirm the sentence in this matter, we note in passing that appellate counsel also requests that he be paid a proper compensation for his services in handling the appeal. The circuit court administrator informed counsel that the county does not have funds to compensate him for his services and that she was unaware of any statutory authority designating a governmental entity to make payment. We must remind the administrator of MCL 775.16; MSA 28.1253, which provides for compensation of appointed counsel. In In re Burgess, 69 Mich App 689; 245 NW2d 348 (1976), this Court stated that the refusal of a trial judge to allow any fees for appellate services is a gross abuse of discretion. Failure to compensate appellate counsel for advocacy in the appellate courts is simply outrageous. See, also, In re Mullkoff, 176 Mich App 82; 438 NW2d 878 (1989). We remand the matter to the trial court for a hearing regarding the reasonable compensation to be paid appellate counsel for his services. Such payment is to be made by the county.
Affirmed and remanded for further proceedings. | [
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W. R. Beasley, J.
Intervenor Wayne County appeals as of right from the trial court’s judgment and order allowing plaintiff to recover a settlement of $90,000 from defendants and ruling that Wayne County had no right to a lien against those monies. On appeal, Wayne County contends that it was entitled to a lien against the proceeds of the judgment as compensation for its anticipated, future payment of workers’ compensation benefits to plaintiff. We reverse.
On July 9, 1985, plaintiff, a road maintenance supervisor employed by the Wayne County Road Commission, was working on a job site when he was struck and injured by a truck owned by defendant Central Transport, Inc., and driven by defendant Phillip Sage. Plaintiff received workers’ compensation benefits from Wayne County and personal injury protection benefits, reduced by the amount of compensation he was receiving from Wayne County, under the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq., from Aetna Insurance, the insurer of his personal vehicle. On July 8, 1986, plaintiff filed a third-party tort action against defendants pursuant to the no-fault act, MCL 500.3135(1), (2)(b); MSA 24.13135(1), (2)(b), seeking recovery for pain and suffering, hospitalization, medical treatment, and "wage loss in excess of the weekly, monthly and yearly limitations of the Michigan No-Fault Act as well as a loss of earning capacity.” Wayne County notified plaintiff and defendant Central Transport of its intent to file a lien in the case on July 9, 1987, although it did not actually file a lien. Following mediation on January 7, 1988, the case was evaluated for settlement at $90,000. After both parties accepted the mediation evaluation, plaintiff moved for entry of a consent judgment and for determination of whether Wayne County was entitled to a lien against the settlement proceeds. The trial court ruled that Wayne County had no lien against the proceeds and subsequently denied Wayne County’s motion for reconsideration.
Wayne County contends that it was entitled to a lien against the proceeds of plaintiff’s settlement with defendant Central Transport because of Wayne County’s continuing payment of work-loss benefits to plaintiff beyond the three years plaintiff was entitled to such benefits under the no-fault act. We agree.
An employer may obtain reimbursement for payments made to an employee under the Workers’ Disability Compensation Act pursuant to MCL 418.827(5); MSA 17.237(827X5), which provides:
In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.
However, workers’ compensation benefits received by an employee injured in a motor vehicle accident in the course of his employment substitute for no-fault benefits to the extent that the workers’ compensation benefits duplicate no-fault benefits otherwise payable to the employee. Great American Ins Co v Queen, 410 Mich 73, 96; 300 NW2d 895 (1980). Where an employer’s payments of workers’ compensation benefits substitute for no-fault benefits, the employer is not entitled to reimbursement for those payments under the workers’ compensation act, but is limited to the reimbursement permitted a no-fault insurer under the no-fault act. Id. at 85, 95-96.
On the other hand, to the extent an employer’s payment of workers’ compensation benefits exceeds the no-fault benefits otherwise payable, the employer is entitled to a lien against an injured employee’s third-party recovery for reimbursement of the excess. Bialochowski v Cross Concrete Pumping Co, 428 Mich 219, 230-231; 407 NW2d 355 (1987). The employer may obtain reimbursement regardless of whether the employee’s third-party recovery is for the same elements of loss compensated by the workers’ compensation benefits. Great American Ins Co, supra at 89, 97.
In this case, Wayne County’s payment of workers’ compensation benefits to plaintiff substituted for no-fault benefits to the extent that its payment of workers’ compensation benefits did not exceed the no-fault benefits otherwise payable. MCL 500.3107; MSA 24.13107 provided in relevant part:
Personal protection insurance benefits are payable for the following:
(b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent.
Thus, plaintiff was entitled to work-loss benefits under the no-fault act for a three-year period after the date of the accident. _
During the first three years following the accident, Wayne County’s payment of workers’ compensation benefits substituted for no-fault benefits, and Wayne County was not entitled to reimbursement for those payments. However, in view of Wayne County’s unrebutted allegation below that plaintiff would continue, and here that plaintiff has continued, to receive workers’ compensation benefits beyond the three-year limitation of his entitlement to no-fault benefits, the trial court erred in denying Wayne County the right to reimbursement or future credit for those continuing payments under the workers’ compensation act. The consent judgment granted to plaintiff was subject to Wayne County’s lien as provided by MCL 418.827(5); MSA 17.237(827)(5). See Hearns v Ujkaj, 180 Mich App 363; 446 NW2d 657 (1989). We reverse and remand so that the trial court may determine the amount of reimbursement and future credit to which Wayne County is entitled according to the formula set out in Franges v General Motors Corp, 404 Mich 590; 274 NW2d 392 (1979).
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Wayne County does not claim, and it does not appear from the record, that plaintiff received work-loss benefits in excess of the amount allowable under § 3107 during the three-year period. | [
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Per Curiam.
In this products liability action, plaintiff appeals as of right the trial court’s denial of his motion for a new trial. We affirm.
This action stems from the death of Sharon Werthman in the early morning hours of April 30, 1984. Ms. Werthman lost control of her 1972 Pontiac Catalina as she attempted to negotiate a curve on Cooley Lake Road in Waterford Township. Her vehicle skidded on the wet pavement, struck a guard rail, and spun around. Ms. Werthman, who was not wearing a seat belt, was thrown across the front seat. Her head struck the passenger side window, at a point where the front and rear windows met. The windows, which were frameless, moved outward without breaking, catching Werthman’s neck between them. Ms. Werthman died of asphyxiation. Testimony at trial revealed that Ms. Werthman had been drinking. Plaintiff’s theory against defendant was that the vehicle was designed defectively in that it lacked either a frame around the windows or a pillar between the front and rear windows. The jury returned a verdict of no cause of action, and plaintiff’s subsequent motion for a new trial, which raised the same issues presented here, was denied.
Plaintiff first contends that the trial court abused its discretion in precluding the admission into evidence of Federal Motor Vehicle Safety Standard 205, which sets forth the specifications for automobile glazing materials. The primary basis for the standard’s exclusion was its lack of relevancy to the case, given plaintiff’s design-defect theory. In arguing the relevancy of the standard, plaintiff has relied upon its stated purposes, which include "to reduce injuries resulting from impact to glazing surfaces” and "to minimize the possibility of occupants being thrown through the vehicle windows in collisions.”
Nonetheless, plaintiff has not provided this Court with the contents of the standard. Without this, we cannot discern what the standard provides and, thus, cannot determine its relevancy to this action. We therefore cannot say the trial court abused its discretion in determining that it was not relevant. Even if we were to rely solely on the stated purpose of the standard, the result would be the same. The alleged negligent design of the vehicle in question related to the lack of a window frame or pillar. There was no allegation pertaining to glazing materials. The stated purposes of the standard do not imply that the standard is in any way connected to such structural aspects of a vehicle as a window frame or pillar.
Plaintiff’s second alleged evidentiary error concerns the trial court’s refusal to allow plaintiff’s expert to testify with regard to the speed of Werthman’s vehicle before the impact on the basis of photographs of the accident scene, particularly those portraying skid marks. The trial court precluded admission of the photographs, finding that plaintiff could not lay a proper foundation for their admission. We again find no abuse of discretion.
While a properly qualified expert may give an opinion with regard to the speed of a vehicle on the basis of skid marks, the exhibits relied upon must be properly authenticated. See Dudek v Popp, 373 Mich 300, 307; 129 NW2d 393 (1964). MRE 901 provides in pertinent part:
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
Though plaintiff was not required to produce the photographer who took the original photographs to authenticate the copies, plaintiff was required to produce a witness to testify that the photographs presented a reasonable or faithful reproduction of the scene as it existed at the time of the accident. Kaminski v Wayne Co Road Comm’rs, 370 Mich 389, 395-399; 121 NW2d 830 (1963); Ferguson v Delaware International Speedway, 164 Mich App 283, 291; 416 NW2d 415 (1987). Plaintiff did not do so, and the trial court therefore did not abuse its discretion in determining that a foundation had not been laid for admission.
Plaintiff next contends that the trial court erred in allowing the admission into evidence of the results of a blood-alcohol test conducted on decedent which were contained in decedent’s hospital records. Plaintiff had filed a motion in limine to preclude reference to or testimony concerning the test results but, after a discussion off the record, stipulated to admission of the hospital records. The exact nature of the stipulation is not entirely clear. Plaintiff’s counsel believed he only stipulated to the authenticity of the records, reserving the right to challenge admission of the results of the blood-alcohol test when the issue arose during trial. Defense counsel, on the other hand, appears to have assumed that plaintiff’s stipulation covered the test results because they were part of the hospital records. The hospital records were admitted into evidence. There was also testimony given at trial concerning the quantity and type of alcohol decedent had consumed.
Nonetheless, defendant subsequently was precluded from eliciting testimony regarding the significance of decedent’s blood-alcohol level, i.e., what effect it had on her driving, response or reaction time, resistance to injury, and the like. And, although defendant made reference to decedent’s alleged intoxication in closing argument as one of the causes of the accident, no mention was made of the blood-alcohol level itself. From the jury’s verdict, we must assume it found no design defect. Under these circumstances, we cannot say that the admission of the hospital records which included the results of the blood-alcohol test so prejudiced plaintiff that he was denied a fair trial.
Plaintiff next argues that the trial court erred in failing to grant plaintiffs request to have SJI2d 16.02, regarding comparative negligence, read to the jury because, even though defendant had waived this affirmative defense, it nonetheless had injected the issue into the case throughout the trial by introducing evidence that decedent was intoxicated, was not wearing a seat belt, and had allowed her vehicle to fall into disrepair. We cannot find error in the trial court’s ruling.
First, comparative negligence is an affirmative defense. We believe that it was defendant’s, and not plaintiffs, prerogative to determine how defendant would defend the case. If defendant chose to abandon this defense and rely on a theory that its product was simply not defective or was not a proximate cause of plaintiffs damages, this was defendant’s choice and risk. If the jury had found that the product was negligently designed and that this was a proximate cause of plaintiffs damages, defendant risked imposition of full liability for those damages.
Furthermore, the issue of comparative negligence could not have been considered by the jury until after it decided the issue of defendant’s liability. Lowe v Estate Motors Ltd, 428 Mich 439, 474-475, n 23; 410 NW2d 706 (1987). The jury decided there was no liability on defendant’s part and, therefore, never reached the question of decedent’s conduct and whether that conduct was a proximate cause of the decedent’s death. Thus, even if we were to deem the failure to give the comparative negligence instruction error, reversal is not required. The absence of the claimed error would not have changed the result. Beadle v Allis, 165 Mich App 516, 525; 418 NW2d 906 (1987).
Plaintiff also argues that he is entitled to a new trial because the trial court demonstrated bias against plaintiff’s counsel during the trial, which prejudiced plaintiff and unduly influenced the jury. We find no basis for reversal where, as in this case, one instance occurred outside the jury’s presence and the court’s references to an appeal period were innocuous and in connection with the retention of exhibits.
Finally, we cannot say the trial court committed error requiring reversal by sequestering decedent’s two children. The children were not parties to the suit, see MCL 600.2922(2); MSA 27A.2922(2), and the sequestration order, issued initially at plaintiff’s request, applied equally to witnesses for both sides. The children were witnesses regarding the issue of damages and their sequestration lay within the trial court’s discretion. See Florence v Moors Concrete Products, Inc, 35 Mich App 613, 620; 193 NW2d 72 (1971). We find that the trial court did not abuse its discretion in this regard.
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Per Curiam.
This is a paternity action. Defendant appeals by leave granted from the circuit court’s order denying his motion for summary disposition based on lack of personal jurisdiction. We reverse.
Plaintiff is the mother of a child born June 26, 1978. She alleges that defendant is the father. Plaintiff and her daughter now reside in Michigan. The child was conceived and born in Maryland while the plaintiff and defendant lived there. Defendant remains a resident of Maryland.
Defendant was personally served with the summons and complaint on December 20, 1988. Plaintiff moved for paternity testing. Defendant responded with a motion for summary disposition alleging lack of personal jurisdiction. The court denied defendant’s motion, holding that the failure of a nonresident putative father to support a child residing in this state is a tortious act. Such an act provides an adequate basis for personal jurisdiction. MCL 600.705(2); MSA 27A.705(2); Black v Rasile, 113 Mich App 601; 318 NW2d 475 (1980).
A motion for summary disposition alleging lack of personal jurisdiction is resolved on the basis of the pleadings and evidentiary support submitted by the parties. MCR 2.116(C)(1) and (G)(5); Hillsdale Co Dep’t of Social Services v Lee, 175 Mich App 95, 96; 437 NW2d 293 (1989). The burden of establishing the necessary jurisdictional facts is on the plaintiff. Id. p 97.
Michigan’s long-arm statute gives our courts limited personal jurisdiction over nonresident indi viduals in certain circumstances. It provides in pertinent part:
The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort. [MCL 600.705; MSA 27A.705.]
Plaintiff first claims that certain of defendant’s activities constituted doing business in Michigan: engaging in phone calls with plaintiff in the state, mailing periodic support payments to her, and visiting her in March 1988 to discuss the child. We note that plaintiff did not allege these facts in her complaint and has not provided evidentiary support for them. However, even assuming the activities occurred, they did not constitute "doing business” in Michigan. The activities were of a strictly personal nature.
Alternatively, plaintiff asserts that defendant committed a tort in the state by failing to support his child.
In Black, a panel of this Court held that the failure to pay costs and support, not the act of conception, is what triggers a statutory cause of action for paternity. Black, p 604. Thus, the failure to support a child residing in Michigan is a tortious act which occurs within the state. MCL 600.705(2); MSA 27A.705(2); Black, supra.
A subsequent panel of this Court rejected the reasoning in Black. Rainsberger v McFadden, 174 Mich App 660; 436 NW2d 412 (1989). It noted that the rationale of Black had been repudiated by the two jurisdictions on whose decisions it was based. The reasoning in Black was faulty, because it assumed as true the very facts which the plaintiff was trying to prove. Paternity must be established before a legal duty arises to support a child. Rainsberger, p 665; Hillsdale, pp 98-99. In addition, the Black panel did not consider due process requirements which must be satisfied before the court can exercise personal jurisdiction. Rainsberger, p 668.
Regardless of whether the failure to pay child support constitutes a tort, the exercise of personal jurisdiction over defendant in this case does not comport with constitutional due process.
The constitutional touchstone is whether the defendant purposefully established such minimum contacts in this state that the maintenance of the suit does not offend traditional notions of fair play. US Const, Am XIV; Gooley v Jefferson Beach Marina, Inc, 177 Mich App 26, 30; 441 NW2d 21 (1989). There is a three-part test to determine whether sufficient minimum contacts exist between a nonresident defendant and the state to support due process requirements of limited personal jurisdiction. First, the defendant must purposefully act in or towards the state, thus availing himself of the protection and benefits of its laws. Second, the cause of action must arise from the defendant’s activities in the state. Third, the defendant’s activities must be substantially connected with the state so that the exercise of personal jurisdiction over him would be reasonable. McGraw v Parsons, 142 Mich App 22, 26; 369 NW2d 251 (1985); Rainsberger, p 663.
In this case, the minimum contacts are those alleged by plaintiff in her brief: some support payments, telephone calls, and defendant’s visit. The lack of evidentiary support makes it difficult to determine if these contacts were initiated by plaintiff or defendant. Thus we cannot conclude that plaintiff has proved that defendant purposefully acted in or towards this state. Insufficient minimum contacts were demonstrated to justify this state’s exercise of personal jurisdiction over defendant.
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Per Curiam.
Petitioner is an inmate at the State Prison of Southern Michigan. Apparently, at some point he was somehow designated by someone within respondent Department of Corrections as a prisoner with a history of predatory homosexual behavior while institutionalized. According to policy directive PD-BCF-34.01, such prisoners shall not be placed in medium- or minimum-security facilities.
On August 25, 1988, petitioner requested from respondent a declaratory ruling regarding his designation. MCL 24.263; MSA 3.560(163). Essentially, his request asserted that respondent’s classification decision was erroneous.
Petitioner’s request for a declaratory ruling was subsequently denied by respondent without explanation.
Petitioner then filed the instant action for judicial review. In his petition, petitioner again challenged respondent’s designation of him as a prisoner with a history of predatory behavior.
Respondent did not file an answer.
On February 9, 1989, petitioner filed a motion for summary disposition pursuant to MCR 2.116(C) (9) and (10). Petitioner once more asserted that he was wrongly and arbitrarily classified. Respondent again did not respond. In fact, the lower court record indicates that the only item filed by respondent in this case was an appearance.
On November 9, 1989, the circuit court issued an opinion, ruling that "defendant’s motion must be granted as a matter of law” and dismissing the action for failure to state a claim. MCR 2.116(C)(8). The opinion stated:
After a careful review, this Court finds the Defendant’s motion must be granted, as a matter of law. Pursuant to MCL 791.255(4); MSA 28.235(4), the review shall be confined to the record ....
Applying the foregoing standard of review to the hearing officer’s determination designating Plaintiff as a sexual predater [sic], a review of the agency’s records reveals that the determinations were supported by substantial evidence which reasonably support the findings of fact in the decision. The hearing officer’s determination will be upheld, therefore the Plaintiff has failed to state a claim upon which relief can be granted.
We vacate the circuit court’s decision for two reasons. First, the court "granted” a motion that was never filed. As noted above, the only action taken by respondent in this case was to file an appearance.
Second, even if the court had ruled on an extant motion, it clearly exceeded its review powers. An agency’s refusal to issue a declaratory ruling under MCL 24.263; MSA 3.560(163) is subject to judicial review as an agency final decision or order in a contested case. Human Rights Party v Corrections Comm, 76 Mich App 204; 256 NW2d 439 (1977). As explained in Human Rights Party, pp 210-211:
The applicable judicial review provision is MCLA 24.301; MSA 3.560(201), which provides in part:
"When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review, by the courts as provided by law.”
Petition for review is in circuit court, MCLA 24.303; MSA 3.560(203), and review is confined to the record and must be undertaken without a jury, MCLA 24.304; MSA 3.560(204). . . .
. . . Judicial review of a final agency determination under the APA [Administrative Procedures Act] is limited to the record; the final decisions of an agency must include findings of fact and conclusions of law. MCLA 24.285; MSA 3.560(185), Luther v Board of Education of the Alpena Public Schools, 62 Mich App 32, 36-37; 233 NW2d 173 (1975).
In this case, the agency record consists of two items: petitioner’s request for a declaratory ruling, and respondent’s response stating: "If you do not receive a ruling within 30 days . . . you may consider [your request] as denied.” The record is devoid of respondent’s findings of fact and conclusions of law with respect either to the decision to deny petitioner’s request for a declaratory ruling or its decision to classify petitioner as a homosexual predator. Contrary to the circuit court’s opinion, the hearing officer’s findings of fact or decision is not part of the record. Indeed, it cannot be ascertained on this record whether the designation was made by a hearing officer or in some other fashion.
The judge essentially acted as an agency hearing officer in this case by making his own finding of fact on the question whether petitioner is a homosexual predator. He then proceeded to act as counsel for the agency by injecting a nonexistent defense motion into the proceeding. This clearly went beyond the procedures set forth in the APA. We therefore vacate the order of the circuit court and remand for further proceedings.
Vacated and remanded. We retain no further jurisdiction. | [
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McDonald, P.J.
These consolidated appeals arise out of plaintiffs suit for breach of an employment contract, wrongful discharge, and defamation. In Case No. 117155 plaintiff appeals from a June 14, 1989, order making final a February 22, 1989, order compelling arbitration of plaintiff’s breach of employment contract and wrongful discharge claims. In Case No. 125965 defendants appeal from a January 17, 1990, order denying their motion to compel arbitration of plaintiff’s defamation claim. We affirm in part and reverse in part.
Plaintiff claims the trial court erred in finding he agreed to arbitration of the claims arising out of the termination of his employment. We disagree.
The federal arbitration act, 9 USC 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Southland Corp v Keating, 465 US 1; 104 S Ct 852; 79 L Ed 2d 1 (1984); Scanlon v P & J Enterprises, 182 Mich App 347; 451 NW2d 616 (1990). More specifically, disputes between a member of a national stock exchange and its employees are within the federal act if there is a binding arbitration agreement. Coenen v R W Pressprich & Co, Inc, 453 F2d 1209 (CA 2, 1972). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Scanlon, supra.
The only question presented by plaintiff is whether he agreed to submit to arbitration all claims arising out of his employment and the termination of his employment. The question regarding the existence of a contract is governed by general contract principles found in state law. Plaintiff signed the Uniform Application for Securities Industry Registration form that included a provision indicating plaintiff’s agreement to arbitrate any dispute, claim, or controversy arising between plaintiff and his firm or customers, as required under the rules of any stock exchange. Additionally plaintiff concedes that he registered with the New York Stock Exchange. New York Stock Exchange Arbitration Rule 347 requires arbitration of disputes "arising out of the employment or termination of employment.” Because plaintiff admits that he was a broker registered with the New York Stock Exchange, his reliance on Brown v Merrill Lynch, Pierce, Fenner & Smith, Inc, 664 F Supp 969 (ED Pa, 1987), is misplaced. Additionally, plaintiff’s contention that his employment agreement with the defendant corporation superseded any agreement contained in the securities application must fail. The submission of the application was a pledge that plaintiff would abide by the constitutions, rules and bylaws of any exchange of which he became a member. Coenen, supra. Those constitutions, rules, and bylaws in turn constitute a contract by all members of the exchange with each other and with the exchange itself. Together, they evidence an enforceable agreement to arbitrate disputes defined by those rules. Coenen, supra. Thus, the defendant corporation, a member of the exchange, had the right to enforce the agreement.
The only issues material to compelling arbitration were whether plaintiff signed the form containing the arbitration agreement and whether plaintiff registered with one of the exchanges. There being no dispute regarding either of these issues, the trial court did not err in compelling arbitration as a matter of law. MCR 3.602(B)(3).
On appeal, defendants claim the trial court erred in failing to order that plaintiffs defamation claim must be arbitrated. We agree.
The arbitrability of posttermination defamation claims under Arbitration Rule 347 of the nyse has been the subject of much litigation in the federal courts. See Fleck v E F Hutton Group, Inc, 891 F2d 1047 (CA 2, 1989), and cases cited therein. The rule provides as follows:
Any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party, in accordance with the arbitration procedure prescribed elsewhere in these rules.
Defendants contend this rule, and the cases construing it, requires arbitration of virtually any claim of posttermination defamation concerning a member-employee by a member-employer. Plaintiff contends the same cases require arbitration only of those claims which arise out of the employment contract or require evaluation of the claimant’s performance as a broker. We find defendants’ interpretation too broad and plaintiffs too narrow a reading of the cases.
In Fleck, the second circuit rejected its own decision in Coudert v Paine Webber Jackson & Curtis, 705 F2d 78 (CA 2, 1983), and adopted instead the test developed by the eighth circuit in Morgan v Smith Barney, Harris Upham & Co, 729 F2d 1163 (CA 8, 1984). The test previously had been adopted in the ninth and sixth circuits. Zolezzi v Dean Witter Reynolds, Inc, 789 F2d 1447 (CA 9, 1986); Aspero v Shearson American Express, Inc, 768 F2d 106 (CA 6, 1985).
This test of arbitrability, as gleaned by the court in Fleck from its reading of Morgan and Aspero, is whether the claim involves significant aspects of the employment relationship, that is, those claims for which resolution depends upon evaluation of a party’s performance either as a broker or as an employer of brokers during the time of the contractual relationship. Fleck, p 1053. A dispute may be arbitrable under this rule even if it does not involve customer accounts or broker-dealer functions, as long as it raises a significant issue of the claimant’s job performance. Pearce v E F Hutton Group, Inc, 264 US App DC 246; 828 F2d 826 (1987). The timing of the tort, whether the statements were made during or after the claimant’s employment, is relevant to whether the tort arose out of the employment relationship, but is not determinative. Fleck, p 1052. The more pertinent inquiry is whether the statements were made during communications of the sort that an employer would foreseeably make upon an employee’s termination.
Applying these principles to the facts in this case, we find plaintiff’s defamation claim to be arbitrable. The circuit court denied defendants’ first motion to compel arbitration of the defamation claim, finding:
[T]he claim of defamation is so dissimilar to the other three (3) counts that it was not contemplated by the parties when executing the arbitration agreement. ... It is entirely separate and a distinct cause of action from the Employment Agreement.
This conclusion reflects the court’s application of an inappropriate test for determining the arbitrability of the claim. It should be noted that the parties did not refer the court to any applicable case law. Nonetheless, restricting arbitrable issues to those arising out of the employment contract is contrary to federal law which governs this case.
During the hearing on the second motion to compel arbitration, the parties did cite and discuss the applicability of the relevant cases. In denying that motion, the trial court stated:
This Court is satisfied that there is a serious question as to whether the allegedly defamatory statement as to Plaintiffs alcoholism relates to his employment to come under Fleck. Also, the Motion to Compel was made earlier. Because there’s been so much activity and intensity in this case since then, it would be unfair to the Plaintiff to send it to arbitration at this late date. Therefore the Motion to Compel is denied.
It appears the court had some doubt about the arbitrability of the defamation claim, and resolved that doubt against arbitration by balancing judicial economy with possible prejudice to the plaintiff. The federal arbitration act does not authorize such a balancing test. Any doubt about the arbitrability of an issue is to be resolved in favor of arbitration. Moses H Cone Mem Hosp v Mercury Construction Corp, 460 US 1; 103 S Ct 927; 74 L Ed 2d 765 (1983). Moreover, judicial economy is not an overriding concern. The federal act requires courts to compel arbitration even where the result would be inefficient or involve duplicative proceedings, because the purpose of the act is to ensure judicial enforcement of privately made agreements to arbitrate, not to promote the expeditious resolu tion of claims. Dean Witter Reynolds Inc v Byrd, 470 US 213; 105 S Ct 1238; 84 L Ed 2d 158 (1985).
Having concluded that the trial court applied the wrong tests in denying defendants’ motions to compel arbitration, the question remains whether plaintiffs defamation claim is arbitrable under federal law, that is, whether each alleged statement involves significant aspects of the employment relationship, involving evaluation of plaintiffs performance as a broker or deriving from his occupational duties as a registered representative.
The alleged defamatory statements at issue include comments made by defendants Greening and Purcell that plaintiff was discharged because he had changed positions within the company and breached an agreement to keep the terms of that change confidential, because of his inability to manage women and the personnel turnover the problem caused, and finally because plaintiff had a drinking problem. Although the communications made by the individual defendants may not concern directly plaintiff’s handling of accounts as broker, they do relate to his performance of the employment agreement, his dealings with customers, and his performance as a manager. We therefore find them to be significantly related to the employment relationship and, thus, arbitrable.
Finally, plaintiff argues even if the defamation claims were arbitrable, defendants waived the right to compel arbitration by participating in the litigation in circuit court. The trial court’s ruling does not expressly find a waiver. Rather, as noted above, it applied a fairness test to the question of arbitrability.
Waiver of a contractual right to arbitration is not favored. Fisher v A G Becker Paribas Inc, 791 F2d 691 (CA 9, 1986). Any examination of whether the right to compel arbitration has been waived must be conducted in light of the strong federal policy favoring enforcement of arbitration agreements. Moses, supra. A party arguing there has been a waiver of the right to arbitration bears a heavy burden of proof. The party must demonstrate knowledge of an existing right to compel arbitration, acts inconsistent with the arbitration right, and prejudice to the party opposing arbitration resulting from the inconsistent acts. Fisher, p 694. Even accepting the trial court’s finding that plaintiff has been prejudiced, there has been no showing that defendants acted inconsistently with their right to arbitration.
Defendants’ motion to compel arbitration in this case was their first responsive pleading to plaintiffs complaint. They raised the arbitration agreement as an affirmative defense. They engaged in discovery and brought and responded to motions in the circuit court only after the court erroneously denied their motion to compel arbitration. Their counterclaim for a preliminary injunction, although not referring to their claim that the disputes between the parties were subject to arbitration, asked only for injunctive relief to preserve the status quo, not for money damages for any claimed breach of plaintiffs covenant not to compete. There is no showing on these facts that defendants have at any time acted inconsistently with their claim of right to arbitration. Rush v Oppenheimer & Co, 779 F2d 885 (CA 2, 1985). We believe any prejudice suffered by plaintiff in terms of time and expense, although unfortunate, was self-inflicted. Fisher, p 698. Plaintiff chose the forum in violation of his agreement to arbitrate disputes. The strong federal policy in favor of enforcing arbitration agreements in transactions affecting commerce requires the conclusion that defendants did not waive their right to arbitration.
We therefore conclude the trial court properly found plaintiffs three claims of breach of an employment contract to be arbitrable, but erred in declining to find plaintiffs defamation claim not to be.
Affirmed, in part, reversed in part, and remanded for entry of an order compelling arbitration of plaintiffs defamation claim and staying further proceedings. | [
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Per Curiam.
Following a bench trial, defendant Charles Lawrence Reddick, Jr., was convicted on October 13, 1989, of first-degree retail fraud, MCL 750.356c; MSA 28.588(3). On that same date, defendant pled guilty of being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. The trial court sentenced defendant to one to two years’ imprisonment for the retail fraud conviction, then vacated that sentence and sentenced him to three to fifteen years’ imprisonment as a fourth-felony offender. Defendant appeals as of right. We affirm.
On the morning of April 15, 1989, in a Foodland store in Ferndale, Michigan, defendant was observed by acting store manager Willie Harrington placing groceries into paper bags in his shopping cart. Several minutes later defendant by-passed several open cash registers, pushed his cart past a closed register, and headed toward the front door. Harrington stopped defendant and asked him if he had a receipt for the merchandise in his cart. According to Harrington, defendant became nervous and replied that he did not have a receipt, but that he was going to pay for the goods. Defendant then ran out of the store and into the parking lot before being apprehended by Harrington and another Foodland employee. Defendant was taken to the Foodland security office, and the police were called. An inventory of the items in defendant’s two bags revealed merchandise valued at $149.35.
Defendant argues first that he is entitled to a new trial because the trial court did not secure a proper waiver of his right to a jury trial. We disagree.
MCR 6.402(B), which became effective on October 1, 1989, twelve days before the commencement of trial in this case, provides:
Waiver and Record Requirements. Before accepting a waiver, the court must advise the defendant in open court of the constitutional right to trial by jury. The court must also ascertain, by addressing the defendant personally, that the defendant understands the right and that the defendant voluntarily chooses to give up that right and to be tried by the court. A verbatim record must be made of the waiver proceeding.
The Supreme Court staff note to the rule states:
MCR 6.402 is a new rule. It sets forth a procedure for waiver of jury trial that differs substantially from the requirements set forth in MCL 763.3; MSA 28.856 and the procedure implementing those requirements adopted in People v Pasley, 419 Mich 297 (1984).
The waiver procedure set forth in subrule (B) differs from the statute and the procedure adopted in Pasley because it eliminates the written waiver requirement and replaces it with an oral waiver procedure consistent with the waiver procedure applicable at plea proceedings. See 6.302(B)(3). The statutory procedure is superseded by the court rule procedure. See 6.001(E).
On October 12, 1989, the scheduled date for trial, the following exchange occurred on the record:
Mr. Secrest: Ready, your Honor, John Secrest on behalf of Mr. Reddick. . . . I’ve talked to Mr. Reddick and he’s conveyed to me that he wishes to have a nonjury bench trial in this matter.
Is that correct, Mr. Reddick?
Mr. Reddick: This is correct, sir.
The matter was adjourned until the next day, at which time the following discussion took place:
Mr. Rumley [assistant prosecutor]: Your Honor, we were last here on, I believe it was yesterday, yesterday afternoon, and at that time there was a decision to be made in terms of waiving a jury. I don’t know if that decision has been made or not. Mr. Secrest. . .
Mr. Secrest: I’d just ask your Honor to inquire of the defendant what’s his choice in this matter.
The Court: Mr. Reddick, do you wish to proceed with a jury or without a jury?
Mr. Reddick: I would like a bench trial, sir. I was informed right in front of you that I was going to trial, sir. I was not informed that I had to — that it was a choice to be made at that time or I would have made the choice then, sir.
The Court: Well, if you’re making a choice to go to trial now, we’re going to trial right now.
Following a fifteen-minute recess to allow defendant time to read the transcript of the preliminary examination and sign the jury waiver form, the following exchange occurred:
Mr. Rumley: I understand now the defendant has completed a jury waiver form that’s been tendered to the Court and for the record, the People have no objection to the waiver of jury in this case. We’re ready to proceed.
Mr. Secrest: What the prosecutor has stated is true and accurate and now we’re ready to proceed.
On this record, we find that it would be unreasonable to believe that defendant did not understand that he had a right to a jury trial and did not voluntarily waive that right. Consequently, we find no error requiring reversal. Compare People v James, 184 Mich App 457, 461-464; 458 NW2d 911 (1990).
Defendant also argues that the evidence was insufficient to support his conviction. Defendant testified at trial that he was going to leave the groceries at the store and return later with the money to pay for them.
However, when reviewing a sufficiency of the evidence argument, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of a crime were proven beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268-270; 380 NW2d 11 (1985). Circumstantial evidence and reasonable inferences arising therefrom can constitute satisfactory proof of the elements of a crime. People v Kosters, 175 Mich App 748, 752; 438 NW2d 651 (1989).
In this case, defendant did not merely pick up goods in the sales area of the store. The evidence established that defendant took the merchandise out of the general sales area, past the store’s cash registers, and moved to within ten feet of the front exit. When confronted and asked for a receipt, defendant pushed the cart away and ran out the front door and into the parking lot. The groceries in defendant’s bags were valued at approximately $150, and defendant had only a few dollars in his possession. We find that such conduct by defendant made his possession adverse to the store. See Freeman v Meijer, Inc, 95 Mich App 475, 479; 291 NW2d 87 (1980). Under these facts, we conclude that the evidence was sufficient for the trial court, as trier of fact, to find that the essential elements of first-degree retail fraud were proven beyond a reasonable doubt.
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Per Curiam;.
Respondent Lisa Welch appeals as of right from an order terminating her parental rights to Shayna Kirkwood (born December 19, 1985), pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), and (d); MSA 27.3178(598.19b)(3)(a)(ii), (c)(i), and (d). While the order also terminated the rights of John Kirkwood, he is not a party to this appeal. We affirm.
The neglect petition filed in this case reads, in pertinent part:
Said child comes within the provisions of Section 2(b)(2) of the Juvenile Code in that her home or environment by reason of neglect on the part of a parent is an unfit place for such child to live in, to-wit: During the past year Lisa Welch has neglected to provide a stable home for herself and said child. She has lived with friends, with her boyfriend in a car and on occasion with her mother, Vivian McGowan. Lisa has left Shayna with Mrs. McGowan for several days at a time without providing adequately for her needs. Lisa’s adc case was closed in May of 1988 because she could not be located. The Department of Social Services has attempted to help Lisa stabilize her situation. However, Lisa has not participated in the Bethany in-home program. She has been arrested again and is presently incarcerated on a charge of malicious destruction of property.
At a November 9, 1988, adjudicative hearing, respondent admitted these allegations. Shayna was made a temporary ward of the court and ordered placed in the home of Vivian McGowan, respondent’s mother. On February 8, 1989, a supplemental petition for voluntary termination of parental rights was authorized to be filed. At a March 17, 1989, hearing, the authorized petition was held in abeyance for review on May 4, 1989. The hearing scheduled for May 4, 1989, was adjourned to June 20, 1989, to be conducted as a permanency planning hearing.
The June 20 permanency planning hearing resulted in an order in which the court found that the return of Shayna to respondent would cause a substantial risk of harm to the child, and that D.A. Blodgett Services intended to initiate termination proceedings on behalf of the Department of Social Services.
A supplemental petition for termination of parental rights was submitted to the court on August 7, 1989, forty-eight days after the permanency planning hearing. The supplemental petition was authorized for filing on September 8, 1989, eighty days after the permanency planning hearing.
The termination hearing on the supplemental petition was held on October 12, 1989. At the beginning of the hearing, respondent argued that the court was without jurisdiction because termination proceedings were initiated more than forty-two days after the June 20, 1989, permanency planning hearing, in violation of MCR 5.974(F)(1). The court determined that the petition was filed on August 8, 1989, when it was submitted for authorization, and further determined that it would thwart the purpose of the juvenile code governing termination proceedings to delay the process. Testimony was then taken, and respondent’s parental rights were ordered terminated.
On appeal, respondent argues that the failure to comply with certain time guidelines for filing termination petitions requires that the order of termination be set aside. MCL 712A.19a(5); MSA 27.3178(598.19a)(5) provides:
If the court determines at a permanency planning hearing that the child should not be returned to his or her parent, the agency shall initiate proceedings to terminate parental rights to the child not later than 42 days after the permanency planning hearing, unless the agency demonstrates to the court that initiating the termination of parental rights to the child is clearly not in the child’s best interests.
MCR 5.974(F)(1)(a) provides:
The supplemental petition for termination of parental rights shall be filed no later than 42 days after a dispositional review hearing or permanency planning hearing where the court has initially determined that the child should not be returned to the parent and the agency has failed to demonstrate that initiating termination proceedings is not clearly in the child’s best interest.
The forty-two-day period mandated by the statute and court rule was not met in this case.
The issue before us is whether the termination order must be set aside because the forty-two-day requirement was not met. While the statute and court rule both require that the time limits be met, neither provides any sanction for such a violation, and we decline to add any sanction which the Legislature and the Supreme Court declined to provide. See Smith v Ruberg, 167 Mich App 13, 16; 421 NW2d 557 (1988). Such a procedural defect, standing alone, will not cause us to dismiss the case or set aside the termination order.
However, respondent claims that the procedural defect resulted in a violation of her due process rights. Due process requires that there be jurisdiction over the respondent and subject matter of the litigation and that the respondent be afforded notice of the nature of the proceedings and an opportunity to be heard. In re Slis, 144 Mich App 678, 683; 375 NW2d 788 (1985). We conclude that the failure to meet the forty-two-day requirement in this case did not divest the court of jurisdiction to continue to hear the matter. See Krajewski v Krajewski, 420 Mich 729, 733-734; 362 NW2d 230 (1984). Further, respondent was provided a full hearing and an opportunity to be heard before the termination of her parental rights. Respondent’s due process rights were not violated in this case.
Affirmed. | [
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Neff, P.J.
Defendant was charged with possession with intent to deliver less than fifty grams of a mixture containing cocaine, MCL 333.7401(2)(a) (iv); MSA 14.15(7401)(2)(a)(iv). After the preliminary examination, the magistrate bound defendant over on the crime charged. Defendant moved in the circuit court to suppress the evidence and to quash the information. The circuit judge entered an order denying defendant’s motion to suppress, granting defendant’s motion to quash, and dismissing the case. The prosecutor appeals as of right, and the defendant cross appeals. We reverse in part, and remand for further proceedings consistent with this opinion.
i
Officer James Dwayne Hampton of the Battle Creek Police Department testified at the preliminary examination that, on May 6, 1989, he observed a blue Jeep Cherokee and a brown and gold Pontiac "in close proximity” to each other. He originally observed the vehicles at an intersection in Battle Creek. Hampton followed the vehicles, and eventually stopped the Pontiac to question the three occupants regarding a call that shots had been fired in the general area.
At the time Hampton stopped the Pontiac, the Jeep was approximately one block away. Hampton observed defendant in the passenger seat of the Jeep near the area where the Pontiac was stopped. Hampton had arrested defendant on another charge approximately six months earlier. At the time defendant was previously arrested by Hampton, he was driving the Pontiac and produced a registration for it which showed that it was registered in defendant’s name.
Officer David Draper of the Battle Creek Police Department assisted Hampton when he stopped the Pontiac. Draper searched the interior of the vehicle and, after finding a handgun under the seat, obtained keys from the driver so that he could check the trunk. Draper was unable to open the trunk with any of the keys. He obtained the ignition key from the driver, but not the trunk key. Draper was present when the trunk was eventually opened by Officer David Adams of the Battle Creek Police Department. Draper also had observed defendant in the Jeep at the time both vehicles had been stopped.
Officer Adams testified that Hampton stopped a gold Pontiac on May 6, 1989, and that, when defendant went by as a passenger in the Jeep a few minutes after the Pontiac was stopped, he spoke with defendant about that car. Adams asked defendant if he still owned the Pontiac, and defendant replied that he did. Adams told defendant that they were searching the vehicle and could not find the keys to open the trunk. He asked defendant if he had a key, and defendant replied that he did. Defendant had another person bring his keys to him from the Jeep. Defendant then unlocked the trunk of the Pontiac himself.
In response to the prosecutor’s question whether defendant gave Adams permission to search the trunk, Adams responded: "He unlocked it. I didn’t ask him for permission. We already had an arrest out of the vehicle.”
The items found in the trunk of the Pontiac were: one handgun, a black leather pouch which contained two different types of ammunition for a different caliber weapon, a plastic bag that contained nineteen rocks of crack cocaine, and a pair of black jeans which contained an additional rock of crack cocaine in a small resealable plastic bag in a pocket.
Adams stated that he did not know who put the items in the trunk or how long they had been in the trunk. Defendant never indicated to Adams that he owned or had anything to do with the items found in the trunk or the handgun found underneath the seat. Adams admitted that the gun found under the seat and the items found in the trunk could have belonged to the three people who were in the Pontiac at the time it was stopped.
The magistrate bound defendant over for trial, although he stated that it was a close question whether there was probable cause to believe that defendant committed the crime.
ii
On appeal, the prosecutor claims that the magistrate did not abuse his discretion in binding defendant over for trial, and that the circuit judge erred in substituting his judgment for that of the magistrate and in granting defendant’s motion to quash on the basis that the probable cause standard had not been met. We agree.
The function of the examining magistrate is to determine whether a crime has been committed and whether there is probable cause for charging the defendant with that crime. People v King, 412 Mich 145, 152-153; 312 NW2d 629 (1981). The magistrate must have good reason to believe the defendant is guilty of the crime charged, People v Dellabonda, 265 Mich 486, 490; 251 NW 594 (1933), but should not discharge when the evidence conflicts or raises reasonable doubt regarding the defendant’s guilt, since that is an issue for the trier of fact. King, supra, pp 153-154.
In Dellabonda, supra, p 490, our Supreme Court stated:
To authorize the examining magistrate to bind appellant over for trial there must have been good reason to believe appellant guilty of the crime charged. Some cases hold a prima facie case against the accused must be made out. This court has not defined what constitutes probable cause, leaving each case to be determined upon its facts. Bouvier defines probable cause as, "A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged.” 3 Bouvier’s Law Dictionary (Rawle’s 3d Rev), p 2728.
In People v Talley, 410 Mich 378, 385-387; 301 NW2d 809 (1981), our Supreme Court stated:
In reviewing the decision of a magistrate to bind over an accused person, the trial court may not properly substitute its judgment for that of the magistrate, but may reverse a magistrate’s decision only if it appears on the record that there has been an abuse of discretion. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145 (1974); People v Dellabonda, 265 Mich 486, 491; 251 NW 594 (1933). In Dellabonda, this Court stated:
"Primarily the question of probable cause is for the consideration of and determination by the examining magistrate. This Court may not agree with the findings of such magistrate but it has no right to substitute its judgment for his except in case of a clear abuse of discretion.”
Part and parcel of the magistrate’s function of determining whether an offense has been committed and whether probable cause exists for charging the defendant therewith is the duty of passing judgment on the credibility of witnesses. People v Paille No 2, 383 Mich 621, 627; 178 NW2d 465 (1970); People v Karcher, 322 Mich 158, 164; 33 NW2d 744 (1948). This was emphasized in Paille No 2, where this Court said:
"[T]he magistrate had not only the right but, also, the duty to pass judgment not only on the weight and competency of the evidence, but also the credibility of the witnesses.
"We have often commented upon the fact that the judge who hears the testimony has the distinct advantage over the appellate judge, who must form judgment solely from the printed words.”
Our task in assessing the trial court’s decision to quash the information is to determine whether or not there has been an abuse of discretion on the part of the examining magistrate because, as observed above, a reviewing trial court may only substitute its judgment for that of the examining magistrate where there has been such an abuse. Our standard for review, furthermore, in testing for an abuse of discretion is a narrow one. The classic description of this standard, first articulated in Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959) (a modification of a divorce decree case) and later given a somewhat stricter interpretation in the criminal context by this Court in People v Charles O Williams, 386 Mich 565, 573; 194 NW2d 337 (1972), reads as follows:
"Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.”
We agree with the prosecutor that the circuit court erred in finding that the magistrate abused his discretion in binding defendant over for trial and in finding that the probable cause standard had not been met.
A reasonable doubt may exist regarding whether, under the circumstances of this case, defendant knowingly possessed the cocaine with the intent to deliver, but that is an issue for the trier of fact. We therefore reverse the order of the circuit court granting defendant’s motion to quash and dismissing the case.
hi
Defendant cross appeals, claiming that the cir cuit court erred when it decided the motion to suppress solely on the basis of the testimony from the preliminary examination. We agree.
In Talley, supra, p 382, our Supreme Court specifically disapproved of the practice of relying exclusively on preliminary examination transcripts in conducting suppression hearings. Our Supreme Court further stated:
Even had the trial court chosen to give express consideration to the constitutionality of the seizure, it could not properly have decided whether or not the evidence should have been suppressed without a full evidentiary hearing — listening to witnesses and judging other evidence — to determine whether or not the seizing officer had probable cause to seize the evidence. Since the trial court did not have such a full evidentiary hearing it would have no way of knowing whether the facts in the case authorized or did not authorize the officer to seize the evidence. For the Court of Appeals to presume to rule on the merits in such an absence of proper procedure requires this Court to point out to that Court and all trial courts that a motion to suppress evidence requires the holding of a full evidentiary hearing and any attempt to rule on such a motion on the basis of a preliminary examination transcript alone is inadequate and erroneous.
Since a trial court has not yet had an opportunity to examine the totality of circumstances surrounding the contested seizure with an eye toward determining the existence or absence of probable cause, we remand for an evidentiary hearing on defendant’s motion to suppress to help insure the constitutionally correct resolution of this issue.
The hearing upon remand is to be a de novo inquiry into the constitutional validity of the contested seizure. The trial court in this case, and all other trial courts in the conduct of all future suppression hearings, shall not place exclusive reliance on the preliminary examination transcript in the determination of the legality of a contested search or seizure. [Id., pp 389-390.]
Talley is still good law. While defendant filed a notice of hearing with regard to his motions to quash and to suppress the evidence, the record does not indicate that such a hearing was ever held. Accordingly, the circuit court erred in deciding the motion to suppress solely on the basis of the preliminary examination transcript. We therefore remand this case to the circuit court for an evidentiary hearing on defendant’s motion to suppress.
Reversed in part and remanded to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Per Curiam.
Defendant appeals by leave granted from a circuit court order denying defendant’s motion for summary disposition. The underlying action involves an attempt by plaintiff no-fault insurer to recover from defendant medical insurer payments made by plaintiff to an insured. The sole issue on appeal is whether the one-year limitation period of MCL 500.3145(1); MSA 24.13145(1) applies in this case. We conclude that the limitation period does apply to bar this action, and we reverse the decision of the trial court.
MCL 500.3145(1); MSA 24.13145(1) provides:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of per sonal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.
The insured in this case died on October 10, 1984. This action was filed on August 15, 1988.
First, we reject the trial court’s finding that § 3145 does not apply because this action involves "other health and accident coverage.” Plaintiff paid personal protection benefits to its insured and subsequently sought reimbursement from defendant of a portion of those benefits. "No matter how one characterizes the plaintiff’s action, it is, in effect, a suit for recovery of no-fault benefits paid.” Badger State Mutual Casualty Ins Co v Auto-Owners Ins Co, 128 Mich App 120, 127; 339 NW2d 713 (1983).
There is a conflict among panels of this Court with regard to whether the one-year period of limitation of § 3145 applies when a no-fault insurer sues another insurer. This Court in two separate two-member majority opinions has ruled that § 3145 is inapplicable to an insurance company’s claim for reimbursement of money paid by mistake. See Madden v Employees Ins of Wausau, 168 Mich App 33; 424 NW2d 21 (1988) (Michael J. Kelly, J., dissenting); Adams v Auto Club Ins Ass’n, 154 Mich App 186; 397 NW2d 262 (1986) (J. E. Townsend, J., dissenting in part).
However, we believe the line of cases applying § 3145 to actions for reimbursement of personal protection insurance benefits paid to an insured reflects the better-reasoned view. See Badger State, 128 Mich App 129; Bohlinger v DAIIE, 120 Mich App 269; 327 NW2d 466 (1982); Allstate Ins Co v Frankenmuth Mutual Ins Co, 111 Mich App 617; 314 NW2d 711 (1981); Home Ins Co v Rosquin, 90 Mich App 682; 282 NW2d 446 (1979). As Judge Townsend suggested in his dissenting opinion in Adams, 154 Mich App 197-200, consistent application of the one-year period of limitation is in keeping with the no-fault act’s purpose: to ensure prompt settlement of claims. We are not swayed by plaintiff’s claim that application of § 3145 in this case would be unfair. Plaintiff, as a no-fault insurer, is presumably well acquainted with the no-fault act and the workings of § 3145. Badger State, 128 Mich App 132; Home Ins Co, 90 Mich App 686.
Reversed. | [
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Per Curiam.
Defendant appeals by leave granted the denial of its motion for summary disposition. Defendant argues that plaintiffs claim, seeking money damages for an unconstitutional taking of his property, is barred by res judicata. We agree and reverse.
This action is part of a continuing legal saga that began in 1971 when plaintiff, desiring to erect townhouses and apartment buildings on his property, first instituted a suit claiming that defendant’s single-family residential zoning ordinance was unreasonable as applied to his land. Plaintiffs action was for declaratory relief, seeking to have the ordinance declared unconstitutional. Although a consent judgment was agreed to in 1973, it was set aside after a group of neighboring property owners were permitted to intervene. The case then proceeded to trial, resulting in a verdict in favor of defendant. This Court reversed, however, holding that defendant’s zoning ordinance was unreasonable as applied to plaintiffs property and, therefore, constituted a "taking [of] property without just compensation, contrary to the Federal and State Constitutions.” Schwartz v City of Flint, 92 Mich App 495, 503; 285 NW2d 344 (1979). This Court then remanded to the circuit court for a determination of an appropriate use pursuant to the procedures set forth in Ed Zaagman, Inc v Kentwood, 406 Mich 137; 277 NW2d 475 (1979).
On remand, the circuit court did not accept either party’s proposed use, but instead adopted its own "mid-satisfactory” use. Plaintiff appealed once again, and this Court, although modifying the circuit court order in part, affirmed in all other respects. Schwartz v City of Flint (After Remand), 120 Mich App 449; 329 NW2d 26 (1982).
Plaintiff then appealed to our Supreme Court, which overruled Zaagman, finding it to be an improper usurpation by the judiciary of a legislative function. Schwartz v City of Flint, 426 Mich 295, 305; 395 NW2d 678 (1986). Adopting the "Illinois approach,” the Court held that, where a zoning ordinance is found to be unconstitutional as applied to a plaintiff’s property, the plaintiff’s proposed use of the property is to be permitted provided that the use is reasonable. Id., pp 325-330. The Court then remanded the case to the trial court for a determination of the question of reasonable use. Id., p 330.
Following remand, the parties engaged in extended negotiations to settle the case, and on February 8, 1988, the City of Flint adopted a resolution agreeing to a specific use of the property. On April 22, 1988, the circuit court entered a "Final Judgment” providing for the development of the subject property in accordance with an agreed-upon plan of use. The judgment indicated that the use was "fair and reasonable and in the best interests of the parties hereto, thereby settling this action.”
Although seemingly put to rest, the matter was resurrected almost one year later when, in a letter dated March 3, 1989, plaintiff demanded compensation in excess of $7 million for the previous unconstitutional taking of his property. Pursuant to a letter dated March 15, 1989, defendant rejected this demand, asserting that it considered the matter fully litigated and the issue of damages to be moot. As a result, plaintiff commenced the instant action on June 27, 1989, demanding, in addition to compensation for the unconstitutional taking, treble damages pursuant to MCL 600.2907; MSA 27A.2907, alleging that the maintenance of the unconstitutional zoning ordinance "for more than two decades resulted in the malicious vexation of plaintiff.” Defendant moved for summary disposition, asserting that plaintiff’s action was barred by res judicata, citing MCR 2.116(C)(7) and (8) and MCR 2.203(A)(2). The trial court, reasoning that there was no signed release explicitly barring plaintiff from suing for money damages, denied the motion. Defendant’s motion for rehearing was also denied. Defendant then applied for leave to appeal, which we granted.
We hold that plaintiff’s claim for money damages is barred by res judicata and, accordingly, reverse the trial court’s order denying defendant’s motion for summary disposition.
The doctrine of res judicata is a manifestation of the recognition that interminable litigation leads to vexation, confusion, and chaos for the litigants, resulting in the inefficient use of judicial time. Rogers v Colonial Federal Savings & Loan Ass’n of Grosse Pointe Woods, 405 Mich 607, 615; 275 NW2d 499 (1979); Sherrell v Bugaski, 169 Mich App 10, 12; 425 NW2d 707 (1988). The Michigan Supreme Court has adopted the "broad” application of the res judicata doctrine, barring both claims actually litigated in a prior action and those claims arising out of the same transaction which plaintiff could have brought, but did not. Gose v Monroe Auto Equipment Co, 409 Mich 147, 160; 294 NW2d 165 (1980); Vutci v Indianapolis Life Ins Co, 157 Mich App 429, 436; 403 NW2d 157 (1987). Res judicata applies to default judgments and consent judgments as well as to judgments derived from contested trials. In re Cook Estate, 155 Mich App 604, 609; 400 NW2d 695 (1986). The test for determining whether two claims arise out of the same transaction and are identical for res judicata purposes is whether the same facts or evidence are essential to the maintenance of the two actions. Mazzola v Vineyard Homes, Inc, 54 Mich App 608, 613-614; 221 NW2d 406 (1974); Vutci, supra, p 436.
It is clear to us that plaintiffs present claim arises out of the same transaction involved in the prior suit (i.e., an unconstitutional taking of his property through application of defendant’s zoning ordinance) and that a claim for money damages properly belonged in that suit.
Plaintiff argues, however, that he could not have brought a claim for money damages in the first suit because such a remedy had not been expressly recognized at the time that suit was initially filed. We disagree.
It was not until the United States Supreme Court decided First English Evangelical Lutheran Church of Glendale v County of Los Angeles, 482 US 304; 107 S Ct 2738; 96 L Ed 2d 250 (1987), that it was first recognized that an award of damages was available as a remedy, pursuant to the Just Compensation Clause of the Fifth Amendment, where a governmental land-use regulation has effected a temporary unconstitutional taking of property. Shortly thereafter, this Court applied the rationale of First Lutheran Church, and decided in Poirier v Grand Blanc Twp, 167 Mich App 770, 777; 423 NW2d 351 (1988), that such a remedy was also available under the Michigan Constitution. Plaintiffs prior suit was still pending at the time each of these cases was decided. Thus, at the very least, plaintiff was clearly apprised of the possibility of claiming damages before termination of his prior suit. Amending his complaint to include a claim for money damages would have been a viable means for plaintiff to establish his claim for damages in that suit. Indeed, this is exactly what the plaintiff in Poirier did.
Moreover, the mere fact that the availability of damages had not been formally recognized in a judicial decision, as of the commencement of the prior suit, did not mean that plaintiff was precluded from asserting such a claim himself. This, after all, was not a situation where settled law had expressly rejected such a remedy. Indeed, the idea of awarding damages, and the possibility of plaintiff asserting such a claim, was discussed in our Supreme Court’s decision in the prior lawsuit. See Schwartz, 426 Mich 315-316. The Court found the concept to be an "intriguing one,” but declined to consider the issue, noting that plaintiff had not asked for that type of relief. Id.
Plaintiff further argues that he could not have sought damages in the first suit, contending that such a claim does not accrue until a municipality has both terminated its unlawful taking and refused to pay. Accordingly, it is plaintiff’s contention that his claim did not accrue until March 15, 1989, when defendant formally rejected his request for compensation. We disagree.
The Supreme Court made clear in First Lutheran Church that damages for the value of the •use of land are not limited to the period subsequent to a judicial determination that a taking has occurred, but instead must be calculated as of the time of taking. Id., pp 306-307, 319-320. In doing so, the Supreme Court rejected the notion that a compensable taking does not occur until a challenged ordinance has been ultimately held invalid. Id., p 320. Moreover, plaintiff’s argument ignores the fact that the plaintiffs in First Lutheran Church and Poirier both pursued their damage claims in the same suit in which an unconstitutional taking was alleged, not to mention our own Supreme Court’s seeming acknowledgment of the possibility of pursuing damages in Schwartz, 426 Mich 315.
Accordingly, we reject plaintiffs arguments that he could not have brought a claim for money damages in the first lawsuit.
As previously noted, plaintiffs present claim for money damages arose out of the same transaction involved in the prior suit. While the issue of damages was not specifically raised in the former suit, we find, for the reasons discussed above, that it clearly could have been. Poirier, supra, p 777. Accordingly, we conclude that plaintiff, having obtained a final judgment in the prior suit, is now barred by the doctrine of res judicata from presently pursuing his claim for money damages. Thus, we find that defendant’s motion for summary disposition should have been granted.
Reversed.
See US Const, Am V; Const 1963, art 10, § 2. | [
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Per Curíame.
Respondent appeals as of right from a judgment of the Manistee County Probate Court that ordered her to return to the estate of her deceased brother, Charles Skulina, the funds from jointly held bank accounts and United States government bonds on the basis of a jury verdict in favor of petitioners, decedent’s remaining heirs.
i
This case is before this Court for a second time. In In re Skulina Estate, 168 Mich App 704; 425 NW2d 135 (1988), this Court reversed the judgment entered following a jury verdict in favor of petitioners based in part on the erroneous admission of the testimony of an expert in psychology, Dr. Van Ostenberg. The expert had reviewed deposition transcripts and interview summaries of several people who had known decedent. On the basis of this information, Van Ostenberg opined that decedent intended the jointly held assets to be distributed among all his heirs.
This Court found that the trial court abused its discretion in admitting the testimony because it did not assist the jury as required by MRE 702, which provides:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The Court relied in part on Thompson v Mages, 707 SW2d 951 (Tex Civ App, 1986), which held that a psychologist’s testimony which was offered to establish whether a then-deceased son had intentionally and wrongfully caused his father’s death was inadmissible. The psychologist had based his testimony on interviews with people who had known the son. The Texas court explained its rationale for excluding the testimony under its similar evidentiary rule:
Moreover the issue to be decided in this case is whether Don Thompson intentionally and wrongfully caused the death of his father. Under the facts of this case, the jury did not need the assistance of scientific, technical, or specialized knowledge to decide this question. The admission of this testimony would not have assisted the jury in making inferences regarding the fact more effectively than the jury could do so unaided. [707 SE2d 957.]
The Skulina Court then summarized Van Ostenberg’s efforts in forming his opinion and concluded:
Whether Van Ostenberg performed a psychological autopsy as contended by respondent or constructed a psychological profile as contended by petitioners, his efforts run into the same objections, i.e., they represent an attempt by an expert to sit as a trier of fact in a situation where expertise is not required. [168 Mich App 710.]
In the second trial, petitioners again presented the testimony of Dr. Van Ostenberg. The witness did not testify this time with regard to whether decedent had intended his jointly held assets to be distributed among his heirs. However, his "psychological profile” of decedent was based on interview summaries and deposition reviews of people who had known decedent. On the basis of this information, Van Ostenberg discussed decedent’s personality traits. Respondent objected to this testimony and to Van Ostenberg’s statement regarding respondent’s personality traits elicited by a lengthy, detailed hypothetical question. In this appeal, respondent has again challenged the admissibility of the expert testimony.
We have reviewed the record and conclude that the trial court abused its discretion in admitting Dr. Van Ostenberg’s testimony because it did not meet the requirements of MRE 702. Several wit nesses testified about the personalities and behaviors of both decedent and respondent. No specialized knowledge was necessary to assist the jury in carrying out its functions of determining what decedent intended and whether respondent was capable of, and exerted undue influence over, her brother. As previously determined by this Court, Van Ostenberg’s testimony "did not do for the jury what the jury could not have done for itself had it read the depositions or listened to the interviews.” 168 Mich App 707. The psychologist’s expertise was simply not required in this case for the jury to determine the ultimate issues before it. Our conclusion pertains not only to Van Ostenberg’s testimony about decedent’s personality traits, but also to evaluations of respondent’s personality.
ii
Our determination that the testimony of Dr. Van Ostenberg was erroneously admitted requires us only to briefly address respondent’s remaining issues for purposes of a new trial.
A
Initially, we note that respondent did not object to the trial court’s instruction on the issue of ownership of the Series hh government bonds, and therefore she has failed to properly preserve this issue on appeal. Regardless, we are not persuaded that In re Bell Estate, 154 Mich App 558; 398 NW2d 466 (1986), precludes petitioners from proving that respondent’s ownership was not acquired as a result of undue influence or fraud. Bell merely dictates that the statutory presumption found in MCL 487.703; MSA 23.303 for joint bank accounts is inapplicable to disputes over United States government bonds. Bell has little bearing on the issue in this case whether ownership was gained by impermissible means.
B
As part of its instructions to the jury, the court read SJI2d 6.01(d), which permitted the jury to draw an adverse inference if it believed that evidence not produced by respondent was under her control, could have been produced by her, and no reasonable excuse was given for her failure to produce the evidence. This instruction was read twice, once with respect to respondent’s failure to produce a canceled check or bank slip evidencing a $10,000 deposit made in her brother Jerry’s bank account twenty years before decedent’s death, and again in response to her failure to produce decedent’s book on wills and probate that was discovered by one of her sons. On appeal, respondent contends that neither instruction should have been permitted.
We have reviewed the record and conclude that both readings of SJI2d 6.01(d) were erroneous. The production of a canceled check or bank slip evidencing a $10,000 deposit made to a third party’s account nearly twenty years before decedent’s demise is immaterial with regard to whether decedent was subjected to undue influence or fraud by respondent. This instruction is permissible only when the evidence not produced is material; here the evidence was clearly collateral to the central issues and only marginally relevant to respondent’s credibility.
Likewise, the instruction should not have been given on the basis of respondent’s failure to produce decedent’s book on wills and probate. The instruction would be permissible if a question of fact existed regarding whether respondent had control over the book. However, we are not persuaded that such a factual dispute existed. There was no direct evidence that respondent had control of decedent’s book. The only evidence remotely linking respondent to the book was its discovery by one of her sons. Even were we to acknowledge the existence of a question of control, we find that this evidence is immaterial with regard to whether respondent exerted undue influence or committed fraud in obtaining joint ownership of the accounts or bonds. Although the book may have contained decedent’s will or other evidence of his distribution intentions, the postcreation intentions of decedent are not admissible to establish decedent’s intent at the time of creating the accounts and bonds. Pence v Wessels, 320 Mich 195; 30 NW2d 834 (1948); In re Skulina Estate, supra, p 710. See also Mitts v Williams, 319 Mich 417; 29 NW2d 841 (1947); Serkaian v Ozar, 49 Mich App 20; 211 NW2d 237 (1973).
c
Respondent also alleges error requiring reversal in the instructions regarding convenience accounts, constructive trusts, and "poor man’s” wills. Respondent objected to the same instructions on convenience accounts and constructive trusts in the prior appeal. This Court found no merit to the challenges, 168 Mich App 710, and the law of the case doctrine bars further consideration in this appeal. Allen v Michigan Bell Telephone Co, 61 Mich App 62, 65; 232 NW2d 302 (1975). With respect to the instruction regarding "poor man’s” wills, we note that in the prior appeal respondent alleged error in the court’s failure to read this instruction. Although this Court did not agree that this was error requiring reversal, the trial court granted respondent’s request at the new trial and read the instruction. We again find no error.
D
We conclude that no error resulted from the trial court’s instructions regarding the statutory presumption in MCL 487.703; MSA 23.303, the presumption of undue influence arising from confidential or fiduciary relationships, and the relative burdens of proof. However, our decision does not preclude the parties on retrial from refining the instructional language in order to satisfy any questions regarding clarity.
E
Lastly, we conclude that no error occurred when the trial court refused to admonish petitioner Shirley Atkins to answer a question by respondent that required an opinion on legal terms. Likewise, we find no error in the court’s permitting petitioners to rebut the statutory inference of joint ownership by evidence other than of fraud or undue influence. The statute does not preclude petitioners from establishing that decedent intended the funds in the accounts and bonds to be evenly distributed upon his death. Respondent’s claims of error in the trial court’s refusal to grant her motions for a directed verdict, a judgment notwithstanding the verdict, or a new trial are now moot.
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Per Curiam.
On February 23, 1985, a fire destroyed the business of plaintiffs Henry W. Brown and Gloria M. Brown, doing business as H. W. Brown Sales. Claims were made by the Browns against Frankenmuth Mutual Insurance Company and Federated Mutual Insurance Company. Both insurance companies denied coverage. Federated claimed that its policy had expired on January 25, 1985. Frankenmuth denied coverage claiming that the Browns had either intentionally set the fire or at least were involved in having the fire set.
Four lawsuits were initiated as a result of the fire, involving the above-named parties, Manistee Bank and Trust Company, mortgagee of the property and loss-payee under the insurance policies, and Gerald Hamilton and Noreen Hamilton, land contract holders and insured mortgagees under the policies.
Following consolidation of the four suits, the case was ordered to mediation. The panel returned an award in favor of all plaintiffs and against Federated for $78,325 and against Frankenmuth for $156,650 for the damages to the building and other properties. The Hamiltons, Manistee Bank, and Federated accepted the mediation award; however, both the Browns and Frankenmuth tendered rejections.
The Hamiltons settled their claims, releasing their rights to Frankenmuth and receiving $82,000 as insured mortgagees under the policy issued by Frankenmuth to the Browns. Federated also settled and paid Henry Brown and Manistee Bank $40,000 in exchange for a full release and an acknowledgment by plaintiffs that its insurance policy expired before the date of the fire. Consequently, only the Browns’ and Manistee Bank’s claims against Frankenmuth proceeded to trial.
The jury returned a verdict in favor of Gloria Brown and Manistee Bank, but found that Henry Brown had intentionally set, or had consented to, or had knowledge of the setting of the fire. The jury found damages totaling $335,000 for the building, parts and inventory, general contents, and postfire theft losses. Pursuant to the court’s instructions, the jury reduced the amount by half and awarded Gloria Brown and Manistee Bank $167,500.
The trial court ruled that Frankenmuth was entitled to offset this adjusted award by $37,500, half the amount of total damages awarded for the building, since Frankenmuth had already paid the Hamiltons under the policy. However, the trial court denied Frankenmuth’s request for a $40,000 credit for Federated’s settlement with plaintiff Henry Brown.
A final judgment of $166,713.42 was entered in favor of Gloria Brown and Manistee Bank, and a judgment of no cause of action was entered with respect to Henry Brown’s claim against Frankenmuth. Gloria Brown and Manistee Bank were awarded reasonable attorney fees and costs against defendant Frankenmuth in the amounts of $30,000 and $15,000, respectively. Frankenmuth likewise was awarded reasonable attorney fees and costs against Henry Brown in the amount of $26,591.22.
From the entry of this final judgment, Frankenmuth appeals as of right and the Browns and Manistee Bank cross appeal. We affirm in part, reverse in part, and remand for further proceedings.
i
Frankenmuth argues on appeal that Gloria Brown is not entitled to recover because the innocent-coinsured doctrine is inapplicable to this case. Although Frankenmuth recognizes that in the marital-home context the innocent-coinsured doctrine permits recovery, it argues that the Browns’ business is a partnership or corporation and thus precluded from benefitting from the application of the doctrine. We disagree.
Initially, we note that Frankenmuth did not argue that H. W. Brown Sales should be regarded as a partnership until the close of proofs when the jury instructions were being finalized. Plaintiffs argue that Frankenmuth failed to plead its claim of partnership as an affirmative defense and therefore the defense was waived.
MCR 2.111(F) addresses what defenses must be pled, and provides in part:
(3) Affirmative Defenses. Affirmative defenses must be stated in a party’s responsive pleading. Under a separate and distinct heading, a party must state the facts constituting
(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;
(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.”
Frankenmuth’s argument that H. W. Brown Sales is a partnership would have been required to have been pled in this case only if the existence of a partnership would defeat Gloria Brown’s recovery under the innocent-coinsured doctrine. Absent its ability to defeat plaintiffs’ claims in whole or in part, the "affirmative defense” of partnership was not required to be pled under MCR 2.111(F)(3)(b) or (c).
We are not persuaded by Frankenmuth’s argument that H. W. Brown Sales should be treated as a partnership. Frankenmuth has relied on § 13 of the Uniform Partnership Act, which provides:
Where, by any wrongful act or omission of any partner acting in the ordinary course of the business or the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.
Even were we to find that a partnership existed, Henry Brown’s act of intentionally setting the fire cannot be considered an act in the ordinary course of the business of H. W. Brown Sales. See Courts of the Phoenix v Charter Oak Fire Ins Co, 560 F Supp 858 (ND Ill, 1983). Nevertheless, we have reviewed the record and conclude that Frankenmuth failed to meet its burden of proving the existence of a partnership. See Miller v City Bank & Trust Co, 82 Mich App 120; 266 NW2d 687 (1978); MCL 449.7; MSA 20.7.
Frankenmuth also argues that the innocent-co-insured doctrine is inapplicable since H. W. Brown Sales is a business and not a marital home. Frankenmuth acknowledges that had Henry Brown burned his home, his wife would be entitled to recover one-half the property damage up to the policy limits. See Ramon v Farm Bureau Ins Co, 184 Mich App 54; 457 NW2d 90 (1990); Lewis v Homeowners Ins Co, 172 Mich App 443; 432 NW2d 334 (1988).
The decisions in Ramon and Lewis were based in part on the ownership of property as tenants by the entireties and the harsh consequences that could historically arise from such ownership. Only a married couple can own property as tenants by the entireties, and, therefore, following the reasoning of Ramon and Lewis, we see no reason to limit the rule solely to the marital home. The underlying rationale of both cases applies equally to any real property conveyed to a couple as husband and wife. Therefore, we hold that Gloria M. Brown is entitled to recover for property damage to H. W. Brown Sales under the innocent-coinsured doctrine.
ii
Our decision requires us to address the extent of recovery to which Gloria Brown is entitled. The jury awarded a total of $335,000 in damages, specifically: $75,000 for the building, $250,000 for the parts and inventory, and $10,000 for the general contents. The damages awarded for the parts and inventory and the general contents represented the policy limits, which were known to the jury.
On cross appeal the Browns and Manistee Bank argue that the trial court erred in instructing the jury that the parties had agreed that the damages to the parts and inventory and the general contents were limited to the policy limits, and that if only one of the Browns was entitled to recover, damages were limited to one-half of these amounts. Frankenmuth, however, contends that if Gloria Brown is entitled to recover, her damages were properly limited to one-half the policy limits.
We have reviewed the record in this regard and conclude that the jury was erroneously instructed.
Although the experts for both sides disputed the degree of damages to these items, they did agree that the amount exceeded the policy limits. That was the extent of the agreement. At no time did the parties agree that the damages equalled, or were confined to, the policy limits. At most the parties agreed that plaintiffs’ ultimate recovery could not exceed the policy limits. The actual extent of the damages and the amount recoverable under the policy may be two different sums.
We agree with Ramon and Lewis that the innocent coinsured spouse is entitled to recover one-half of the actual damages up to the policy limits. Therefore, it was error for the trial court to instruct the jury that if it found only one or both of the Browns entitled to recover the actual damages awarded could not exceed one-half the policy limits. Gloria Brown, being the only innocent spouse, was entitled to recover one-half of the actual damages up to the policy limits.
The expert testimony was not fully developed after reaching an agreement that damages to the parts and inventory and the general contents exceeded the policy limits. Therefore, we are unable to determine what amount the jury would have returned had it been properly instructed. Consequently, the issue of damages to the parts and inventory and the general contents only is remanded for further proceedings consistent with this opinion.
hi
Frankenmuth’s second argument is that the trial court erred in limiting it to offsetting only $37,500 from Gloria Brown’s recovery for monies paid to the Hamiltons as insured mortgagees. Frankenmuth contends it is entitled to offset the entire $75,000 awarded for the damage to the building against Gloria Brown’s recovery. We agree.
The issue of the insurer’s right to offset monies paid to a mortgagee under a standard mortgage loss-payable clause against the recovery of an innocent coinsured was squarely addressed by this Court in Ramon, supra at 66-67:
Fha was a named insured on the farmowner’s policy which provided fire insurance coverage. The standard mortgage loss-payable clause gives the insurance proceeds to a mortgagee to the extent that they are equal to or less than the mortgage debt and accords priority to insuring the mortgage debt over the insured mortgagor’s claim. Gibson v Group Ins Co of Michigan, 142 Mich App 271, 278; 369 NW2d 484 (1985); Better Valu Homes, Inc v Preferred Mutual Ins Co, 60 Mich App 315, 319; 230 NW2d 412 (1975). The insurer’s payment of the existing mortgage balance satisfies its obligation to the mortgagee, while having no effect upon the insured’s claim. However, the insured property owner has no claim to the portion of the insurance proceeds attributable to the unpaid balance of the mortgage and his claim for damage to the insured property is properly reduced by that amount. Gibson, supra, pp 278-279. Therefore, defendant was clearly entitled to set off the amount paid to fha in satisfaction of the unpaid balance of the mortgage debt jointly and severally owed by plaintiffs. Regardless of the ultimate determination concerning plaintiffs’ joint or individual entitlement to insurance proceeds, they may only collect any damage amount in excess of the mortgage balance within the policy limits.
Therefore, on remand, we instruct the trial court to offset the entire $75,000 awarded for damages to the building against Gloria Brown’s recovery as the innocent coinsured spouse.
IV
Frankenmuth also contends that it should have been permitted to offset the $40,000 paid to Henry Brown by Federated against the recovery by Gloria Brown. Frankenmuth contends that because there was overlapping coverage, a setoff is necessary to prevent a double recovery by Gloria Brown. We find Frankenmuth’s argument flawed in several respects.
Frankenmuth’s policy was issued to both Henry Brown and Gloria Brown. However, the policy issued by Federated only named Henry Brown as an insured. Consequently, the settlement by Federated for $40,000 was only with Henry Brown. As part of the settlement agreement it was clearly acknowledged that Federated’s policy was no longer effective at the time of the fire.
We note that Frankenmuth has correctly stated the law regarding overlapping insurance coverage; however, these rules are inapplicable to this case. Until its settlement with Henry Brown, Federated defended its denial of coverage on the basis of an expired policy. Frankenmuth did not prove that overlapping coverage existed because it failed to present any evidence that Federated’s policy was in force at the time of the fire.
In conclusion, we hold that the trial court did not err in denying Frankenmuth’s request to offset the $40,000 paid to Henry Brown by Federated against the jury verdict for Gloria Brown.
v
Frankenmuth’s final argument challenges the award of mediation sanctions to Gloria Brown and Manistee Bank. The mediation panel returned a unanimous evaluation in favor of all plaintiffs and against Frankenmuth for a total of $156,650. Manistee Bank accepted this award; the Browns and defendant Frankenmuth tendered rejections. Upon entering final judgment, the trial court awarded Manistee Bank $15,000 and Gloria Brown $30,000 in reasonable attorney fees and costs against Frankenmuth. However, Frankenmuth was also awarded $26,591.22 in reasonable attorney fees and costs against Henry Brown. On appeal, Frankenmuth argues that the award in favor of Gloria Brown and Manistee Bank was erroneous because they did not prevail in full. We disagree.
The trial court imposed mediation sanctions pursuant to MCR 2.403, which provides in part:
(0) Rejecting Party’s Liability for Costs.
(1) If a party has rejected an evaluation and the action proceeds to trial, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the mediation evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the mediation evaluation.
(4) In cases involving multiple parties, the following rules apply:
(a) Except as provided in subrule (0)(4)(b), in determining whether the verdict is more favorable to a party than the mediation evaluation, the court shall consider only the amount of the evaluation and verdict as to the particular pair of parties, rather than the aggregate evaluation or verdict as to all parties. However, costs may not be imposed on a plaintiff who obtains an aggregate verdict more favorable to the plaintiff than the aggregate evaluation. [Emphasis added.]
Our decision to remand the issue of damages regarding the parts and inventory and the general contents requires us to modify the mediation award. However, because the jury returned a verdict of no cause of action against Henry Brown, we affirm the award of mediation sanctions against him and in favor of Frankenmuth.
We note that the trial court previously ruled that Manistee Bank’s right to recovery was derivative of the Browns’ right to recovery. Although we affirm the liability aspect of the jury’s verdict, and thus Manistee Bank’s right to recovery, we have remanded the issue of property damages recoverable by Gloria Brown. Consequently, the mediation awards with respect to Gloria Brown and Manistee Bank are premature and are vacated. Shannon v Taylor AMC/Jeep, Inc, 168 Mich App 415, 421; 425 NW2d 165 (1988). Following the proceedings on remand, the trial court shall reassess plaintiffs’ entitlement to mediation sanctions on the basis of the redetermination of damages. Gloria Brown and Manistee Bank, therefore, are entitled to renew their request for mediation sanctions, if appropriate, following the conclusion of the proceedings on remand.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
Our review of the record has failed to disclose any evidence that H. W. Brown Sales was a valid Michigan corporation. Consequently, we will only address Frankenmuth’s argument that H. W. Brown Sales should be treated as a partnership.
MCL 449.13; MSA 20.13.
The jury did not award anything for the postfire theft losses.
We note that were we to accept defendant’s merger argument, we might be inclined to reverse the award of attorney fees and costs in favor of defendant and against Henry Brown because Frankenmuth also did not "prevail in full.” | [
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Per Curiam.
Defendant pled guilty in the Gene-see Circuit Court to a charge of unarmed robbery, MCL 750.530; MSA 28.798, which carries a maximum sentence of fifteen years. In exchange for defendant’s plea, the prosecutor agreed to dismiss two charges of felonious assault, MCL 750.82; MSA 28.277. Defendant appeals as of right from his sentence of five to fifteen years, arguing that the sentencing court abused its discretion when it departed from the sentencing guidelines for reasons already considered in the guidelines and that the sentence imposed was an abuse of the sentencing court’s discretion.
Complainant, an eighty-two-year-old woman, was walking with her granddaughter when defendant stole her purse. She was thrown to the ground and fractured her shoulder in the struggle for the purse. Defendant was captured by several bystanders and held until police arrived at the scene.
The sentencing guidelines recommended a minimum sentence of zero to three years. The sentencing court stated that it was departing from the guidelines because of the highly predatory nature of defendant’s crime and the serious injuries sustained by the complainant. The sentencing court stated that a person who would commit such a crime should be confined "for a substantial period for the protection of the community” and is "in need of some prolonged therapy.” Responding to defendant’s argument that he did not set out to injure an elderly woman and would not have injured her if she had not resisted, the sentencing court stated that "it was a little short on empathy for [defendant’s] argument” because "when one sets out to commit an assaultive crime . . . there’s always the potential of a serious injury or death arising.”
A sentencing court may depart from the recommended minimum sentence under the guidelines when necessitated by the special characteristics of the offense or the offender or when the judge believes that the recommended minimum sentence is inappropriate. People v Fleming, 428 Mich 408, 426; 410 NW2d 266 (1987). Acknowledging this, defendant nevertheless argues that departure from the guidelines should be limited to factors which are not considered in the guidelines because the guidelines have already been revised to comport with present-day sentencing practices. Defendant requests that we revisit this issue, which was previously resolved by this Court in People v Ridley, 142 Mich App 129, 134; 369 NW2d 274 (1985), under the first edition of the sentencing guidelines.
Defendant’s argument is supported by only two critical assumptions, the loss of either of which undermines the argument. First, defendant’s argument assumes that the second edition of the guidelines has been adjusted to comport perfectly with present-day sentencing practices. There is no support in the record for this assumption, and, therefore, we reject it. Second, defendant’s argument assumes that every factor considered under a sentencing variable is completely and finally accounted for in the scoring of that variable. In order to test this assumption, we consider the factors allegedly twice considered in this case: "bodily injury” under Offense Variable 2 and "agedness” under Offense Variable 7. Obviously, these broad terms are generally applicable to every case involving an injured and aged victim. However, the extent of a victim’s injuries and agedness may differ greatly from case to case. Thus, the degree to which these broad terms are specifically applicable in a particular case depends on the specific circumstances of the case. Therefore, we reject the assumption that every factor considered under a sentencing variable is completely and finally accounted for in the scoring of that variable.
The recently released opinion of our Supreme Court in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), appears to recognize that the degree to which broad terms such as "injury” and "agedness” are specifically applicable in a particular case depends on the specific circumstances of the case. The Court stated that "departures are appropriate where the guidelines do not adequately account for important factors legitimately considered at sentencing.” Id., p 657 (emphasis added). Consistently, the Supreme Court instructed that "[wjhere there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines.” Id., pp 659-660 (emphasis added). Finally, the Court expressly declined to overrule previous decisions of this Court which have held that the sentencing court may depart from the guidelines for reasons already considered in the guidelines, "since there will be occasions when the conduct or the criminal record to be scored under the sentencing guide lines is extraordinary in its degree.” Id., p 660, n 27.
The revised guidelines, like the original guidelines, provide a "recommendation” and are not binding on a sentencing court. People v Davis, 181 Mich App 354, 358; 448 NW2d 842 (1989), citing Administrative Order No. 1988-4; see Milbourn, supra, p 659. They do not convey substantive rights on a defendant. Davis, supra, pp 358-359. Discretion to determine the precise weight to be given facts deemed relevant to the sentencing decision remains in the sentencing court under the indeterminate sentencing act, MCL 769.8; MSA 28.1080. See People v Adams, 430 Mich 679, 686-687; 425 NW2d 437 (1988); Davis, supra; People v Bryars, 168 Mich App 523, 526; 425 NW2d 125 (1988); see also Milbourn, supra, pp 657, 661, 664-665. Refusing to allow the sentencing court to depart from the revised guidelines whenever its reasons are already considered in the guidelines recommendation "would seriously circumscribe the court’s discretion in sentencing.” Ridley, supra, p 134; Davis, supra. However, because the sentencing court exceeded the sentencing guidelines without the benefit of the Supreme Court’s recent opinion in Milbourn, supra, pp 654-661, and its statements regarding the role of the sentencing guidelines, we reverse defendant’s sentence and remand for resentencing in light of Milbourn.
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Per Curiam.
Plaintiffs appeal as of right from a May 31, 1989, order granting summary disposition for defendants Michigan Property and Casualty Guaranty Association (mpcga) and Michigan Claims Service (mcs) and dismissing plaintiffs’ garnishment action. We affirm.
Plaintiffs had secured a default judgment in an underlying dramshop action against the principal defendant, SLB Enterprises, Inc., doing business as Utica Show Bar, for $250,000 on October 30, 1986. The insurance carrier for Utica Show Bar, Union Indemnity Insurance Company, a New York corporation, was liquidated by the New York Insurance Commission on July 16, 1985 (before the entry of the default judgment). Plaintiffs then sought satisfaction of the judgment from mpcga, mcs, and the Insurance Commission of Michigan by way of the Property and Casualty Guaranty Association Act, MCL 500.7901 et seq.; MSA 24.17901 et seq., and filed a writ of garnishment against the three entities on October 30, 1986.
The garnishee defendants responded that they were not indebted to Utica Show Bar and, in addition, asserted the affirmative defense that the writ of garnishment was not timely filed and that the garnishee defendants were not proper parties to the garnishment action. In their subsequent answers to interrogatories, defendants stated that they first had notice of the lawsuit on November 26, 1986, after the default judgment had been entered and that, because the deadline for filing a proof of claim for lawsuits against Union Indemnity’s insureds in Michigan was July 17, 1986, the notice of November 26, 1986, was not timely. Plaintiffs responded with an affidavit asserting that the claim was forwarded to Union Indemnity before July 17, 1986.
Defendants subsequently filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that plaintiffs did not submit a timely claim to the mpcga before the deadline date of July 17, 1986, as required by MCL 500.7925(l)(c); MSA 24.17925(l)(c), and therefore, plaintiffs’ garnishment action must be dismissed because it is not a "covered claim” as defined by the statute. Plaintiffs responded that pursuant to MCL 500.7844; MSA 24.17844, since repealed by 89 PA 302, because Union Indemnity was a foreign insurer, plaintiffs’ notification to Union Indemnity and subsequently to the New York Insurance Commission satisfied any timely notice requirement. The trial court agreed with defendants and dismissed plaintiffs’ garnishment action. It is from this decision plaintiffs appeal.
On appeal, the arguments made below are reiterated. Plaintiffs claim that a genuine issue of fact exists whether notice was mailed to Union Indemnity before July 17, 1986, the cutoff date. If it was, plaintiffs argue, they complied with the notice requirements of MCL 500.7844; MSA 24.17844, and the mpcga is obligated to pay the claim under MCL 500.7931; MSA 24.17931. Plaintiffs therefore contend that the trial court erred in granting summary disposition for defendants. Defendants respond that, contrary to plaintiffs’ belief, the notice provision of MCL 500.7925(1)(c); MSA 24.17925(1)(c), and not MCL 500.7844(1); MSA 24.17844(1), is applicable. Defendants therefore conclude that, because plaintiffs have not alleged that they notified either the mpcga or a Michigan process receiver before July 17, 1986, the trial court did not err in concluding that the mpcga was not liable for the insolvent foreign insurer’s obliga tions and in granting summary disposition for defendants.
We agree with defendants and the trial court. Contrary to plaintiffs’ assertion, MCL 500.7844; MSA 24.17844 was not applicable and merely detailed the notice requirements under the Uniform Insurers Liquidation Act to ensure that one domiciled in Michigan could join in receivership proceedings in a foreign jurisdiction against a foreign insurer. Compliance with the notice requirements of MCL 500.7844; MSA 24.17844 does not obligate the mpcga to pay any claims. Rather, the mpcga’s duty to pay and discharge claims against insolvent foreign insurers is controlled by § 7931 of the Property and Casualty Guaranty Association Act, MCL 500.7931; MSA 24.17931. Metry v Michigan Property & Casualty Guaranty Ass’n, 403 Mich 117, 120; 267 NW2d 695 (1978). Pursuant to that section, the mpcga is obligated to pay and discharge "covered claims.”
A covered claim must be presented to a receiver in this state or to the mpcga before "the last date fixed for the filing of claims in the domiciliary delinquency proceedings.” MCL 500.7925(1)(c); MSA 24.17925(1)(c). The last day fixed for filing claims in the present case was July 17, 1986. The claims receiver for Michigan Claims Service, as agent of the mpcga, stated in his deposition that his office first received notice of plaintiffs’ claim on November 24, 1986. Moreover, plaintiffs do not allege that the claim was presented to a receiver in Michigan or to the mpcga before the cutoff date. Therefore, we find that plaintiffs’ claim was not a "covered claim” that the mpcga was under a duty to pay or discharge and that the trial court did not err in granting defendants’ motion for summary disposition.
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Per Curiam.
Plaintiff began this litigation in 1982. The appeal before us arises from an amended complaint which alleged that for the calendar year 1976 defendant erroneously interpreted the Single Business Tax Act. Plaintiff complained that as a result it overpaid taxes by $791,-260.21 and was entitled to a refund and relief under § 69 of the act, MCL 208.69; MSA 7.558(69). Following a bench trial, the court entered judgment in favor of plaintiff. Defendant now appeals as of right. We reverse.
The Michigan Single Business Tax Act sets forth a procedure by which a multistate taxpayer’s tax base is apportioned to Michigan. MCL 208.45; MSA 7.558(45). One factor in this apportionment formula is the ratio of total sales in Michigan to total sales everywhere. Plaintiff argued that defendant improperly excluded from the formula the proceeds from the sale of securities and investment paper. The court found that plaintiff’s receipts due to the redemption and sales of certificates of deposit and other securities constituted sales under § 7(1) of the Single Business Tax Act, MCL 208.7(1); MSA 7.558(7)(1), and should have been included in the computation of the sales factor.
"Sale” is defined in § 7(1) as
the gross receipts arising from a transaction or transactions in which gross receipts constitute consideration: (a) for the transfer of title to, or possession of, property that is stock in trade or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the tax period or property held by the taxpayer primarily for sale to customers in the ordinary course of its trade or business, or (b) for the performance of services, which consti tute business activities other than those included in (a), or from any combination of (a) or (b).
The relevant investment securities consisted of cds, commercial paper, stocks, and bonds. The securities were acquired from the issuers and then redeemed or resold to banks or investors.
Plaintiffs thesis is that these investment activities constitute sales. To hold that the investments were sales, the trial court must have found that the cds and other securities constituted stock in trade or inventory, or were held "primarily for sale to customers in the ordinary course of business.” However, the trial court did not find that plaintiff was in the business of selling securities to third parties; nor did plaintiff show that it was licensed or registered by the Securities and Exchange Commission or the State of New York as a dealer in marketable securities. Plaintiffs major lines of business were manufacturing, chemicals, resource development, fabricating, engineering, domestic transportation, and utilities. The only evidence presented showed that the plaintiff was purchasing and selling securities for its own account.
We conclude that the trial court’s characterization of plaintiffs investment activities as sales is not supported by the evidence and that the receipts from these activities do not fall within the definition of sale found in § 7(1)._
Defendant also complains that the court erred in granting plaintiff relief under § 69 of the Single Business Tax Act. The trial court’s grant of relief under that act was conditioned on its finding that defendant had incorrectly categorized plaintiff’s investment activities. Because, as shown above, the defendant did not incorrectly categorize plaintiff’s investment activities, the trial court erred in granting plaintiff relief under § 69 of the Single Business Tax Act. Trinova Corp v Dep’t of Treasury, 433 Mich 141; 445 NW2d 428 (1989), cert gtd — US —; 110 S Ct 1317; 108 L Ed 2d 492 (1990).
We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
To support this argument plaintiff relies on United States Steel Corp v Wisconsin Dep’t of Revenue, Wisconsin Tax Appeal Comm, May 9, 1985 (Docket No. 1-6578). This reliance is misplaced; the Wisconsin definition of "sales” is much broader and more general, providing:
[T]he term "sales” for purposes of the sales factor [is defined] as "generally all gross receipts derived by a taxpayer from transactions and activities in the course of its regular trade or business operations which produce business (apportionable) income.” [Zd, p 35, quoting Wis Adm Code, § Tax 2.39(5)(a).] | [
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Michael J. Kelly, P.J.
Plaintiff initiated the instant action to recover damages arising from an allegedly defamatory editorial published in defendant C & G Publishing’s newspaper, the Warren Weekly. Following plaintiff’s proofs, defendant moved for a directed verdict, which the trial court took under advisement. After the jury returned a. verdict in plaintiff’s favor, the trial court granted defendant’s motion and set aside the jury award. Plaintiff appeals as of right and we affirm. The trial court did not err in finding that plaintiff failed to prove that the defendant’s reporter was guilty of malice in publishing the offending statements.
It is uncontested that plaintiff was a public figure at the time of the challenged publication. Thus, in order for plaintiff to succeed on her claim of libel, she must prove by clear and convincing evidence that the statements were published with actual malice. New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964).
In the case at bar, defendant published an editorial explaining why it declined to endorse plaintiff for reelection to public office in the City of Warren. The editorial commented that plaintiff had refused to follow a city ordinance, which eventu ally led to lengthy litigation and a Michigan Supreme Court ruling that plaintiff was indeed breaking the law by refusing to comply with the ordinance. In making the comments, defendant’s reporter relied on findings of fact contained in court opinions concerning the mentioned litigation.
Plaintiff contends that the findings on which the reporter relied had not been properly established and that this had been made known to the reporter before the article’s publication. Consequently, the reporter should have had a serious doubt concerning the truth of the findings. This, according to plaintiff, constituted a factual predicate from which a jury could infer actual malice. We do not agree.
The United States Supreme Court has held that adoption of any rational interpretation of a public document is a sufficient defense, as a matter of law, to a suit for defamation. Time, Inc v Pape, 401 US 279; 91 S Ct 633; 28 L Ed 2d 45 (1971); see also Orr v Argus-Press Co, 586 F2d 1108 (CA 6, 1978). Here, we agree with the trial court that the reporter’s writings fairly characterized the findings of fact contained in the court opinions. The trial court did not err in directing a verdict against plaintiffs claims.
Affirmed.
Gribbs, J., concurred. | [
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Per Curiam.
Following a jury trial, defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He now appeals as of right, raising several issues both through his appellate attorney and in propria persona. We affirm.
Defendant raises several issues with regard to his preliminary examination. The first issue pertains to the circuit court’s remanding the case to the district court, absent a finding of an abuse of discretion by the district court, to permit the prosecutor to present evidence of premeditation through a witness who failed to appear at the original examination. We believe that the circuit court did not err in remanding the case to the district court for the reasons stated by Chief Justice Riley in her dissent in People v Stafford, 434 Mich 125, 136-139; 450 NW2d 559 (1990), joined by Justices Boyle and Griffin.
Defendant, in propria persona, raises three other issues with regard to the preliminary examination: (1) that the evidence presented at the original preliminary examination was insufficient to bind over defendant on the charge of second-degree murder, (2) that the district court exceeded its authority by ruling on the admissibility of a "dying declaration,” and (3) that even if it did not exceed its authority, it abused its discretion by ruling that the victim’s statement was a "dying declaration.” We decline, however, to reach these issues because, even if they have merit, any error would have been harmless under the circumstances of this case. See People v Hall, 435 Mich 599; 460 NW2d 520 (1990).
We next address defendant’s argument that he was denied his constitutional right of confrontation when he was expelled from the courtroom and ordered to listen to the remainder of the trial from a library with the aid of a loudspeaker system. Defendant was permitted to send notes to defense counsel regarding the proceedings. The event culminating in defendant’s expulsion consisted of defendant’s striking his trial counsel in the face in front of the jury on the third day of trial. Trial was adjourned for five days. As a result of the assault, trial counsel suffered a split lip and the loss of two teeth.
Pertinent to the issue in this case, we note that the Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to be present in the courtroom at every stage of his trial, Illinois v Allen, 397 US 337, 338; 90 S Ct 1057; 25 L Ed 2d 353 (1970), reh den 398 US 915 (1970), and a " 'face-to-face meeting with witnesses appearing before the trier of fact,’ ” Maryland v Craig, 497 US —; 110 S Ct 3157-3162; 111 L Ed 2d 666, 677 (1990), quoting Coy v Iowa, 487 US 1012, 1016; 108 S Ct 2798; 101 L Ed 2d 857 (1988). These rights, however, are not absolute. They must be "interpreted in the context of the necessities of trial and the adversary process.” Craig, 111 L Ed 2d 681. On appeal, defendant focuses on his right to confront witnesses face-to-face.
Allen is an example of how Sixth Amendment rights are. interpreted in the context of the necessities of trial and the adversary process. In Allen, the Supreme Court held that a defendant’s right to be present at trial was not violated where he was removed from the courtroom for his disruptive behavior:
[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. [Id., 397 US 343.]
In so concluding, the Court noted that it is essential to the proper administration of criminal justice that dignity, order, and decorum be the "hallmarks” of court proceedings. Consonant with this principle, trial judges confronted with disruptive, defiant defendants must have "sufficient discretion to meet the circumstances of each case.” Id.
Here, there were indications before trial that defendant might be disruptive at trial. During a pretrial hearing, defendant "stomped out” of the courtroom and then wrote a letter of apology to the trial judge. Also, more importantly, defendant moved to remove his trial counsel before trial. The court denied defendant’s motion. Defendant indicated that there might be "physical contact” between him and trial counsel. Obviously, his threat was to be taken seriously because, on the third day of trial, he struck trial counsel, causing a rather serious injury.
We acknowledge that the trial judge failed to warn defendant before removing him from the courtroom that he would Jbe removed if his disruptive behavior continued. However, where the nature of a defendant’s disruption consists of violence toward another person, we are reluctant to hold that the defendant must first be warned before being removed. Defendant should not be permitted "one free swing” at his attorney. When the trial continued after the five-day adjournment, defendant requested that he be permitted in the courtroom when he testified. The trial judge granted defendant’s request, but, in the same breath, noted that he did not trust defendant to behave.
Under the facts of this case, we believe that defendant’s right to be present in the courtroom was not violated. The violent outburst, especially after a pretrial threat of "physical contact,” was such that the trial could not be carried on with defendant in the courtroom. Even though defendant was expelled from the courtroom, he was able to hear the proceedings through a loudspeaker system and to communicate with trial counsel. The trial judge handled the situation in a constitutionally permissible way.
Another example of how Sixth Amendment rights are interpreted in light of the necessities of trial and the adversary process is Craig. Craig involved the Sixth Amendment right to face-to-face confrontation: The defendant argued that permitting a child witness in a child abuse case to testify against him at trial, outside his physical presence, by one-way closed-circuit television violated his right to face-to-face confrontation of the witnesses against him. A defendant can be denied such a right, the Court held, if the denial is "necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id., 111 L Ed 2d 682.
Both of those factors were met in this case. First, as in Craig, the reliability of the testimony ánd adversariness were assured in this case. The presence of other elements of confrontation — testimony under oath, cross-examination, and the trier of fact’s observation of the witnesses’ demeanor— ensures that the testimony was reliable. Second, the way the trial judge handled the situation was necessary to further an important public policy: the proper administration of criminal justice. Hence, under the Craig analysis, defendant was not denied his right to face-to-face confrontation.
In conclusion, although defendant was not permitted to be present in the courtroom for the last two days of trial, he was not denied a confrontation right. Maintaining dignity, order, and decorum is essential to the important policy of the proper administration of justice. Moreover, the reliability of testimony and adversariness were assured by testimony under oath, cross-examination, and the trier of fact’s observing the demeanor of the witnesses. Finally, we note that defendant was expelled from the courtroom after all but one of the witnesses who were present at the party where the offenses occurred testified. After defendant’s expulsion, the bulk of the testimony consisted of medical testimony and the testimony of police officers. Therefore, most of the witnesses who had the ability to "wrongfully implicate” defendant had testified before defendant was expelled from the courtroom. Craig, 111 L Ed 2d 679.
Defendant also argues that the trial court abused its discretion by denying his motion for a mistrial or, in the alternative, for substitute counsel. We disagree. In denying defendant’s motion, the trial court noted that it believed that defendant’s actions were calculated because of defendant’s warning before trial that there would be "physical contact”.and that defendants should not be permitted to "run the courts.” As a panel of this Court held in People v Siler, 171 Mich App 246, 256; 429 NW2d 865 (1988), "We will not condone or allow a defendant to perpetrate chaos at his own trial and then obtain a mistrial on the basis of prejudice.” For the same reason, we believe that the court did not abuse its discretion in denying the motion for substitute counsel. We further note that, although not controlling, providing substitute counsel midtrial under the facts of this case would have disrupted the judicial process. People v Flores, 176 Mich App 610, 613-614; 440 NW2d 47 (1989); People v Wilson, 43 Mich App 459, 462; 204 NW2d 269 (1972).
Also without merit is defendant’s argument that prosecutorial remarks in closing argument denied him a fair trial. Defendant failed to object below to the comments. Because any prejudice could have been cured by a curative instruction, error requiring reversal did not occur. People v Duncan, 402 Mich 1, 16-17; 260 NW2d 58 (1977).
Finally, we address defendant’s argument that the trial court’s supplemental instructions, specifically its "examples,” constitute error requiring reversal. We disagree. Defendant failed to object below. Reviewing the instructions as a whole, manifest injustice did not occur because the instructions fairly presented to the jury the issues to be considered and sufficiently protected the rights of defendant. People v Curry, 175 Mich App 33, 39; 437 NW2d 310 (1989).
Affirmed._
Following the original preliminary examination, the district court declined to bind over defendant on either first-degree murder or open murder and, instead, bound over defendant on second-degree murder. The court also denied the prosecutor’s motion for an adjournment to secure the attendance of an important witness who could supply evidence of the element of premeditation. The district court, however, left open the possibility of the prosecutor’s later taking procedural steps to ensure that defendant stood trial on the charge of first-degree murder.
The majority opinion in Stafford did not reach the issue. Stafford, 434 Mich 132.
At this point, we note that defendant, in propria persona, states as a question presented that he was denied effective assistance of counsel because trial counsel failed to call certain witnesses. However, defendant failed to make a corresponding argument. Therefore, he abandoned the issue. See People v Sowders, 164 Mich App 36, 49; 417 NW2d 78 (1987). Even if we reviewed the issue, it is without merit because such decisions are a matter of trial strategy. People v Julian, 171 Mich App 153, 159; 429 NW2d 615 (1988). | [
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Per Curiam.
In this tort action, defendants appeal as of right from an order entering judgment in favor of plaintiff. Defendants contend that the trial court erred in granting plaintiff’s motion for a directed verdict on the issue of negligence, in failing to instruct the jury on the sudden-emergency doctrine, in denying defendants’ motion for a directed verdict, and in allowing the testimony of plaintiffs expert. Defendants also contend that the verdict in favor of plaintiff was against the great weight of the evidence. We agree that the trial court erred in granting plaintiff’s motion for a directed verdict on the issue of negligence and reverse.
This case arose out of an automobile accident which occurred on December 5, 1985. Defendant Maro Lynn Whitmyer was the driver of one of the vehicles involved in the collision. Codefendant Max Whitmyer was the owner of that vehicle, but had no involvement in the collision. For simplicity, the term "defendant,” when used in the singular in this opinion refers to Mrs. Whitmyer.
Defendant testified that she returned home from work between 1:00 and 1:30 p.m. on December 5, 1985. At that time, the roads were not slippery and there was no ice on her driveway. At approximately 3:50 p.m., defendant got in the car to go and get her daughter. Defendant’s home is located in a wooded area approximately 150 feet from Lounsbury Road. Defendant admitted that, as she drove down her driveway, her vision was obstructed by snowflakes and a tree at the left of the driveway. Defendant estimated that she was traveling at approximately two to three miles per hour. As defendant approached the road, she applied her brakes in order to stop and check whether she had the right of way. The car hit a patch of ice and slid. At that point, defendant observed plaintiff’s car traveling down the road in the northbound lane. The two cars collided. Defendant’s car spun and came to rest across a ditch approximately six to seven feet to the right of the driveway. Plaintiffs car spun in the road and also came to rest in a ditch. Plaintiff got out of her car and, when asked if she was okay, said that she was fine, but shaken.
Plaintiff testified that December 5, 1985, was a cold, snowy day and that it had been raining. Plaintiff, who was driving a brown 1983 Oldsmobile Cutlass Supreme with the headlights on, was proceeding north on Lounsbury Road in the right lane at approximately thirty-five miles per hour. The posted speed limit was forty-five miles per hour. Plaintiff observed a car starting down a driveway approximately 120 feet or yards ahead. She slowed and moved over into the southbound lane. Plaintiff did not apply her brakes because she was afraid her car would spin. However, plaintiff believed that defendant would see her in time and stop. Plaintiff sounded her horn, but defendant’s car continued out onto the road. The left fender of defendant’s car struck the fender on the front passenger side of plaintiffs car. Plaintiffs car spun, struck a tree, and came to rest in a ditch. Plaintiff testified that she was wearing a safety belt.
Plaintiff testified that, immediately following the collision, she felt "weak, nervous and upset” and was crying. Plaintiff telephoned her brother, who arrived shortly thereafter. Plaintiff’s brother pulled part of the car’s body from against the wheel and drove plaintiffs car to his home. Later that evening, plaintiff drove the car home.
At the close of proofs, both parties moved for directed verdicts on various grounds. The trial court granted defendant’s motions for directed verdicts with respect to the issues of wage loss and shoulder pain and took the remaining motions under advisement. The jury rendered a verdict finding that defendant had not been negligent. The trial court then set aside the jury’s verdict and granted plaintiffs motion for a directed verdict on the issue of negligence. The jury was instructed to find defendants negligent and to continue deliberations. After deliberating for less than an hour, the jury found that defendant’s negligence was the proximate cause of plaintiffs injuries, that the injuries constituted a serious impairment of bodily function, and that plaintiff was not negligent. The jury awarded plaintiff $100,000 damages.
Defendants contend that the trial court erred in granting plaintiffs motion for a directed verdict on the issue of negligence. Defendants argue that reasonable minds could differ on whether defendant exercised due care under the circumstances. In a related issue, defendants contend that the trial court erred in failing to instruct the jury on the sudden-emergency doctrine.
Directed verdicts, particularly in negligence cases, are viewed with disfavor. Goldman v Phantom Freight, Inc, 162 Mich App 472, 477; 413 NW2d 433 (1987). In determining whether to grant a motion for a directed verdict, the trial court must view the evidence in a light most favorable to the nonmoving party and determine whether a prima facie case has been established. Clery v Sherwood, 151 Mich App 55, 63-64; 390 NW2d 682 (1986). If the evidence presents material issues of fact upon which reasonable minds can differ, those issues are to be decided by the jury, thereby precluding a directed verdict. Id.; Dixon v W W Grainger, Inc, 168 Mich App 107, 110; 423 NW2d 580 (1987). In deciding a motion for a directed verdict, a trial court must examine the testimony and all legitimate inferences that may be drawn from that testimony in a light most favorable to the nonmoving party. Id. When the evidence is such that reasonable jurors could disagree, neither the trial court nor this Court may substitute its judgment for that of the jury. Means v Jowa Security Services, 176 Mich App 466, 471; 440 NW2d 23 (1989).
In moving for a directed verdict on the issue of negligence, plaintiff argued that defendant violated MCL 257.652; MSA 9.2352, which provides that a driver of a vehicle about to enter a highway from a driveway is required to come to a full stop before entering the highway and to yield the right of way to approaching vehicles. According to plaintiff, defendant was negligent as a matter of law, and there was no credible explanation that would excuse defendant’s failure to observe plaintiff and to yield. Defendants argued that the evidence raised an issue of fact regarding the issue of negligence and that the weather conditions created an unusual condition sufficient to excuse defendants from liability. Defendants’ theory was that the collision was caused by the weather conditions and not by the negligence of either party. Defendants argued that the violation of MCL 257.652; MSA 9.2352 was excused by the unexpected, sudden emergency encountered when defendant hit the patch of ice which caused her to lose control of the car. Defendants also requested a jury instruction on the sudden-emergency doctrine. The trial court denied the request. The trial court apparently believed that the violation of MCL 257.652; MSA 9.2352 was negligence per se and that the sudden-emergency doctrine did not excuse defendant’s negligence. Thus, the trial court subsequently directed a verdict for plaintiff.
The sudden-emergency doctrine is a judicially created principle which was defined by our Supreme Court in Socony Vacuum Oil Co v Marvin, 313 Mich 528, 546; 21 NW2d 841 (1946):
One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. [Quoting Huddy on Automobiles (8th ed), p 359.]
See also Vander Laan v Miedema, 385 Mich 226, 231-232; 188 NW2d 564 (1971).
In Amick v Baller, 102 Mich App 339, 341-342; 301 NW2d 530 (1980), this Court stated:
[T]he factual pattern is "unusual” if the facts present in the case vary from the everyday traffic routine confronting a motorist. Thus, a blizzard or other extreme weather condition may cause such an unusual driving environment that the normal expectations of due and ordinary care are modified by the attenuating factual conditions. "Unsuspected” facts are those which may appear in the everyday movement of traffic, but which take place so suddenly that the normal expectations of due and ordinary care are again modified by the attenuating factual conditions.
Icy patches on Michigan roads in winter can be unsuspected. Young v Flood, 182 Mich App 538, 543; 452 NW2d 869 (1990). The sudden-emergency instruction should be given whenever there is evidence which would allow the jury to conclude that an emergency existed within the meaning of the sudden-emergency doctrine. Id., p 544.
The trial court in the instant case erred in denying defendants’ request for a jury instruction on the sudden-emergency doctrine. There was sufficient evidence of a sudden emergency to allow the jury to conclude that a sudden emergency existed which would, therefore, excuse defendant’s violation of MCL 257.652; MSA 9.2352. The trial court also erred in directing a verdict for plaintiff on the issue of negligence. The evidence was such that reasonable jurors could disagree. By rejecting defendants’ sudden-emergency theory and viewing the violation of MCL 257.652; MSA 9.2352 as negligence per se, the trial court incorrectly substituted its judgment for that of the jury.
Defendants also contend that the trial court erred in denying their motion for a directed verdict with regard to plaintiffs failure to prove a causal relationship between blood in her urine and the accident. We agree.
In a negligence case, proximate cause is usually a factual issue to be decided by the trier of fact. Derbeck v Ward, 178 Mich App 38, 44; 443 NW2d 812 (1989). However, if reasonable minds could not differ regarding the proximate cause of the plaintiffs injury, the court should rule as a matter of law. Id. Where there is more than one possible cause of an injury, one actor’s negligence will not be considered a proximate cause of the harm unless it was a substantial factor in producing the injury. Id.; Brisboy v Fibreboard Corp, 429 Mich 540, 547; 418 NW2d 650 (1988). Considering the evidence in a light most favorable to plaintiff, reasonable minds could not conclude that the accident was a substantial factor causing plaintiff to present blood in her urine. The trial court erred in denying defendants’ motion for a directed verdict on this issue.
Resolution of the foregoing being dispositive, it is not necessary for this Court to decide defendants’ remaining issues.
Reversed. The jury’s verdict in favor of defendants is reinstated. | [
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Weaver, J.
We have before us an action to quiet title of an undivided one-half interest in the oil, gas, and other minerals under thirty-nine acres of land. Plaintiff appeals the judgment awarding title to the surface owners. We affirm.
The relevant facts are not in dispute. On May 13, 1962, James E. Boyd died possessing an undivided one-half interest in the oil, gas, and other minerals now disputed, which had been severed from ownership of the surface rights. Following probate proceedings, an order allowing the final accounting and assigning the residue of the estate was recorded on July 10, 1964. The residue of the estate was awarded in equal proportions to Buie A. Boyd, Dean J. Boyd, and Hugh R. Boyd. This order was properly recorded with the register of deeds. On May 6, 1976, the 1964 order was again recorded with the register of deeds. In 1988, three separate mineral deeds were recorded by which the Boyd heirs conveyed to plaintiff Bates a total of a fifty percent interest in the oil and gas in the disputed land.
The sole issue revolves around the interpretation of the dormant minerals act, MCL 554.291 et seq.; MSA 26.1163(1) et seq. The question before us is whether this mineral interest had been extinguished under the dormant minerals act and had therefore vested in the owners of the surface.
Section 1 of the dormant minerals act provides in part:
Any interest in oil or gas in any land owned by any person other than the owner of the surface, which has not been sold, leased, mortgaged or transferred by instrument recorded in the register of deeds office for the county where such interest is located for a period of 20 years shall, in the absence of the issuance of a drilling permit as to such interest or the actual production or withdrawal of oil or gas from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized or included in unit operations therewith, or the use of such interest in underground gas storage operations, during such period of 20 years, be deemed abandoned, unless the owner thereof shall, within 3 years after the effective date of this act or within 20 years after the last sale, lease, mortgage or transfer of record of such interest or within 20 years after the last issuance of a drilling permit as to such interest or actual production or withdrawal of oil or gas, from said lands, or from lands covered by a lease to which such interest is subject, or from lands pooled, unitized, or included in unit operations therewith, or the use of such interest in underground gas storage operations, whichever is later, record a claim of interest as hereinafter provided. Any interest in oil or gas deemed abandoned as herein provided shall vest as of the date of such abandonment in the owner or owners of the surface in keeping with the character of the surface ownership. [MCL 554.291; MSA 26.1163(1).]
Plaintiff seeks to avoid a finding of abandonment by relying on the 1976 recordation of the 1964 order.
In making this argument, plaintiff does not contend that the 1976 recordation was notice of inter est that complied with § 2 of the act. Rather, he claims that the 1976 recordation was "evidence of a transfer” sufficient to start the running of a twenty-year dormancy period pursuant to § 1. We disagree.
Section 1 concerns itself with whether an interest has been "sold, leased, mortgaged or transferred by instrument recorded in the register of deeds office.” The clear language of the statute shows that to begin the running of a new twenty-year prescriptive period it is not sufficient that there be merely "evidence of a transfer,” but rather that an actual transfer at that time is necessary as well. Here, the only transfer reflected by the 1976 recordation occurred in 1964.
We note that this ruling is consistent with a prior opinion of this Court holding that the recordation of a deed destroyed by fire did not prevent the operation of the dormant minerals act. Wagner v Dooley, 90 Mich App 759; 282 NW2d 469 (1979).
We affirm the judgment of the trial court.
MCL 554.292; MSA 26.1163(2) provides in pertinent part:
Any interest in oil or gas referred to in this act may be preserved by the recording within the period specified in this act a written notice in the register of deeds office for the county where such interest is located, which notice shall be verified by oath, describe the land and the nature of the interest claimed, give the name and address of the person or persons claiming the interest, and state that such person or persons desire to preserve the interest and do not intend to abandon same. | [
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Per Curiam.
Plaintiff appeals as of right the dismissal with prejudice of his complaint for his failure to comply with a discovery order directing the production of plaintiffs joint tax returns. We affirm.
Plaintiff filed the underlying suit against defendants in April 1988, alleging wrongful discharge from his employment at J. Walter Thompson U.S.A., Inc. Because plaintiff claimed lost wages as part of his damages, defendants asserted that plaintiff’s actual efforts to mitigate those damages were crucial to their trial preparation. In an attempt to learn the full extent of plaintiff’s earnings, defendants, on January 11, 1989, served plaintiff with a request for production of documents, including plaintiff’s tax returns for the years 1983 through 1988. On April 26, 1989, plaintiff responded to the request by refusing to produce any tax returns, claiming that he and his wife filed joint returns and that his wife’s income was confidential. Plaintiff did, however, provide some documents which he asserted were a summarization of his income disclosed in his federal, state, and municipal tax returns. This summarized tax information was for some, but not all, of the years covered by defendants’ request.
Defendants offered plaintiff a protective order to eliminate any concerns plaintiff might have about the confidentiality of his wife’s income. Nevertheless, plaintiff still refused to produce the tax returns. As a result of plaintiff’s failure to comply with the request, defendants filed a motion to compel production pursuant to MCR 2.313(A). At the May 12, 1989, hearing on the motion, plaintiff reiterated his argument that his wife’s income was confidential and that the tax returns would not be produced. The trial judge ordered plaintiff to produce the returns, stating: "The court will grant the motion, but her income can’t be disclosed to anyone and it cannot be used at trial.”
Plaintiff did not seek rehearing of the trial judge’s May 12, 1989, order to produce the tax returns, nor did plaintiff seek leave to appeal to this Court. However, plaintiff still did not comply with the May 12, 1989, order to produce the tax returns. Therefore, defendants filed a motion for sanctions pursuant to MCR 2.313(B). At a June 2, 1989, hearing on defendants’ motion, plaintiff argued for the first time that his wife had possession of the tax returns and that he was unable to obtain them. At the conclusion of the hearing, the trial judge assessed plaintiff $1,000 in costs for plaintiff’s failure to comply with the order of production and ruled that the case would be dismissed if plaintiff did not produce the tax returns within seven days.
By the expiration of the seven-day deadline, plaintiff had not complied with the court’s order. On June 14, 1989, plaintiff filed with this Court an application for leave to appeal from the trial court’s June 2, 1989, order. Meanwhile, on June 19, 1989, seventeen days after the trial court threatened plaintiff with dismissal of his case, the trial judge entered a final order, dismissing plaintiff’s complaint with prejudice because of his failure to produce the tax returns by June 9, 1989. Plaintiff then appealed as of right the final order to this Court.
On appeal, plaintiff argues that the trial court erred by imposing the drastic sanction of dismissal. Plaintiff maintains that the court neither considered the range of sanctions available nor tailored an appropriate sanction under the circum stances. Plaintiff contends that dismissal was inappropriate because violation of the court order compelling discovery was not wilful in that his wife, who was not a party to this action, had possession of the tax returns and would not release them. Plaintiff further argues that the discovery order at issue related only to a single aspect of his damages, the mitigation of lost income, and that the production of tax returns would be cumulative of what had already been furnished to defendants. Finally, plaintiff states that the trial judge should have ordered that the tax returns be produced for an in camera hearing.
Failure to comply with a discovery order is a ground for dismissal where the noncompliance is wilful. Edge v Ramos, 160 Mich App 231, 234; 407 NW2d 625 (1987). To be wilful, the failure need not be accompanied by wrongful intent. It is sufficient if it is conscious or intentional, not accidental. Id. Dismissal of a cause of action for failure to comply with discovery rules is within the discretion of the trial court. Houston v Southwest Detroit Hosp, 166 Mich App 623, 628; 420 NW2d 835 (1987).
Upon review of the present case, we find no abuse of discretion. In support of his argument that the tax returns should have been produced for an in camera hearing, plaintiff cites Fassihi v St Mary Hosp of Livonia, 121 Mich App 11; 328 NW2d 132 (1982). In Fassihi, a panel of this Court held that a joint return was to be submitted for an in camera inspection by the trial court, which could then redact it for information within the scope of the wife’s right to privacy. We note however, that plaintiff in the present case did not invoke the court’s discretion to order such a hearing by making a timely objection. Instead, plaintiff made no objection to the request to produce until three months after the request was served. MCR 2.310(B)(2) requires a party on whom a request for production of documents is served to make a written response within twenty-eight days after service of the request. Objections not timely raised are deemed waived. See United States v 58.16 Acres of Land, 66 FRD 570 (ED Ill, 1975). Moreover, defendants offered plaintiff a protective order to eliminate any concerns plaintiff may have had regarding the confidentiality of his wife’s income. Nevertheless, plaintiff refused to produce the tax returns. The trial court essentially entered a protective order by granting defendants’ motion to compel, but ordering that the income of plaintiff’s wife could not be disclosed to anyone and could not be used at trial. Plaintiff still did not comply.
Plaintiff’s bad faith is revealed by his eleventh-hour claim that he could not comply with the original order compelling production because the tax returns were in the possession of his wife, who refused to release them to him. Pursuant to 26 USC 6103(e)(1)(B), the income tax return of a person filing jointly shall, upon written request by that person, be open to inspection by or disclosure to him or any designated person. Courts have established that a party’s right to inspect and reproduce copies of his own tax records vitiates a claim that income tax records not under his immediate control need not be produced in civil litigation. Rhodes v Edwards, 178 Neb 757; 135 NW2d 453 (1965), cert den 382 US 943, 86 S Ct 399, 15 L Ed 2d 352 (1965). Hawkins v Wiggins, 92 Ill App 3d 278; 47 Ill Dec 866; 415 NE2d 1179 (1980). Moreover, a hearing on a motion to dismiss is an inappropriate time to raise an excuse for failing to comply with a discovery order. Humphrey v Adams, 69 Mich App 577; 245 NW2d 167 (1976). It is' difficult to believe that plaintiff’s "excuse” for not producing the tax returns is legitimate where he seeks damages for lost income, where defendants have discovered that the construction company-plaintiff formed apparently pays its officers (which includes plaintiff and his family) a salary of $82,000, and where the company purchased, for $49,000, a new Porsche Targa for plaintiff’s use. The "excuse” also seems inconsistent where plaintiff has already produced documents revealing income derived jointly by him and his wife. It appears that plaintiff is attempting to reduce his apparent income by attributing it to his wife, and thereby insulate it from his adversaries.
We also note that, contrary to plaintiff’s assertion, production of the tax returns would not be cumulative of material that plaintiff has already produced. Finally, we find that the trial court did in fact explore alternative sanctions, including the imposition of costs, which proved ineffective. The trial court gave plaintiff ample opportunity to produce the returns, which plaintiff failed to do.
We conclude that the trial court did not abuse its discretion in dismissing plaintiff’s case where defendants’ attempts to discover information vital to a proper defense of the case were frustrated, where the noncompliance was not inadvertent, and where the imposition of alternate sanctions would not have deterred plaintiff from continuing his dilatory course of conduct. Bellok v Koths, 163 Mich App 780, 783; 415 NW2d 18 (1987).
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Beasley, J.
Defendant appeals by leave granted a split decision of the Workers’ Compensation Appeal Board affirming a referee’s decision which awarded benefits for plaintiff’s emotional disability. We reverse.
Plaintiff began working for defendant in 1972. At that time, plaintiff had no problems relating to nervousness or chest pains, and he passed his preemployment examination. He was employed at various times as an assembler, replacement operator, and repairman. In June 1981, plaintiff experienced chest pain and high blood pressure and consulted with the plant’s medical department. The medical department sent him to a hospital, where plaintiff was admitted into intensive care for five days.
Plaintiff testified that he had been experiencing a lot of pressure at work, allegedly stemming from being "harassed” by foreman Lloyd Wine. Plaintiff claimed that, although Wine was not his foreman at the time, Wine would come and ask plaintiff to do jobs in addition to his regular work. He said this made him "feel down completely.” Plaintiff said he was working twelve-hour days, six or seven days a week at that time. Wine testified that, although he was not plaintiff’s direct supervisor at the time, he was ultimately responsible for the performance of the work, and had found it necessary to talk with plaintiff several times about plaintiff’s unsatisfactory work.
On January 12, 1982, the incident giving rise to plaintiff’s petition for workers’ compensation benefits occurred. Plaintiff claims that he had been harassed during the previous two or three days. On the day in question, plaintiff claims he was working at his job when Wine, who was, now his supervisor, kept coming up to him approximately every ten minutes and asking him to do more. Wine does not deny approaching plaintiff several times. Plaintiff claims he was exhausted, and says he told Wine he was doing the job to the best of his ability. Plaintiff testified that Wine accused plaintiff of being "baby-sat.” Plaintiff says he was afraid of losing his job and losing everything.
Plaintiff says that his nerves were "stirred up” and that he started sweating hard, his blood pressure rose, his legs started shaking, and he lost his strength. According to plaintiff, his union representative came and pulled him off the job and was talking to the foreman when plaintiff collapsed. Defendant’s medical records indicate that plaintiff was brought to the medical department on a stretcher hallucinating, thinking his hands were gone and thinking he was dying. He was also screaming, incommunicative, and shaking. Plaintiff was taken to the hospital, where he woke up with his hand feeling frozen. Plaintiff was hospitalized for five weeks from March through April 1982, and was off work for several months.
Plaintiff says he was asked to return to work in August 1982 and reported to work on August 11, 1982, but was placed on temporary layoff. He returned to work again on August 23, 1982. On August 26, 1982, plaintiff was working on a dashboard and had been kneeling for fifteen minutes. He said that when he reached up, he started feeling dizzy and was taken to first aid, where his blood pressure was found to be elevated. Plaintiff testified that he was subsequently taken to the labor relations department, where he was accused of being under the effect of alcohol and drugs, and was assessed two penalty days. Plaintiff denies this charge, claiming that he had only taken his regular medication that day. A blood test performed a short time later did not show any alcohol in his blood. When he returned to work after serving the penalty days, plaintiff was informed he could not return until he had obtained a release from his doctor. Since that time, plaintiff has not returned to work.
The hearing referee awarded plaintiff workers’ compensation benefits. On May 24, 1989, the wcab affirmed in a two-to-one decision. Defendant now appeals.
This case revolves around the standard to be applied in deciding whether mental and nervous injuries are compensable. In Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1, 24; 268 NW2d 1 (1978), the Supreme Court held that workers’ compensation benefits may be awarded for mental injuries resulting from nervous or mental stimuli. The legal standard applicable to these claims prior to the enactment of a 1980 amendment was set forth in Deziel as follows: the claimant (1) must be found to be disabled, (2) must be disabled on account of some personal injury, and (3) under a "strictly subjective causal nexus,” must factually establish, that he honestly perceived that some personal injury incurred during the ordinary work of the employment caused, the disability, or aggravated, accelerated, or combined with some internal weakness or disease to produce the disability. Id., pp 25-26. "The focal point of this standard is the plaintiffs own perception of reality.” Id., p 26.
Widespread dissatisfaction with this decision resulted in the 1980 amendment to MCL 418.301(2); MSA 17.237(301X2) by 1980 PA 357, effective January 1, 1982, which provides:
Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof._
In Hurd v Ford Motor Co, 423 Mich 531, 534-535; 377 NW2d 300 (1985), the Supreme Court stated flatly that this statute was enacted to invalidate the Deziel standard, specifically the subjective "honest perception” test, and gave it prospective application to affect only those personal injuries occurring on or after January 1, 1982. Given the injury date of January 12, 1982, the new statutory standard provided by the amendment is applicable to this case.
The legal standard set forth in the statute has three requirements which plaintiff must satisfy by a preponderance of the evidence: (1) the claimant must be disabled, (2) an actual, precipitating, work-related physical trauma, event, or events must have occurred, and not just an unfounded perception thereof, and (3) the employment must have contributed to, aggravated, or accelerated the mental disability in a significant manner. MCL 418.301(2); MSA 17.237(301)(2). And see Peters v Michigan Bell Telephone Co, 423 Mich 594, 623-624; 377 NW2d 774 (1985) (Riley, J., dissenting).
The issue whether a plaintiff is disabled is a question of fact. Nezdropa v Wayne Co, 152 Mich App 451, 461; 394 NW2d 440 (1986). The wcab majority found plaintiff to be psychologically disabled on the basis of the testimony of Dr. Rubin.
Dr. Rubin diagnosed plaintiff as having "major depression,” with the onset of the emotional disorder occurring in relationship to the stress plaintiff was allegedly experiencing in his workplace, where he described himself as feeling mistreated, pressured, and demeaned. Dr. Rubin concluded that, at the time of his evaluation, plaintiff could not return to work, had not been stabilized, and was in need of further psychiatric treatment. Dr. Rubin believed plaintiff to be totally disabled as a result of his disorder. A second psychiatrist, Dr. Freedman, disagreed, saying that he considered plaintiff capable of returning to work, preferably under a different supervisor, and that, if pressed for a diagnosis, he would indicate that plaintiff suffered from "situational adjustment reaction with some aggressive features.” Thus, clearly, the psychiatric opinions conflict. While it is unclear why the wcab majority appeared to prefer Dr. Rubin’s testimony over that of Dr. Freedman, the credibility of both lay and medical witnesses is essentially a question of fact to be determined by the wcab. Where there is competent evidence on the record to support the findings of fact made by the wcab on an issue, we ordinarily do not disturb them. Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978).
However, in this case, we doubt that the wcab majority correctly applied the standards mandated by the amendment to the statute. MCL 418.301(2); MSA 17.237(301)(2). The wcab majority said, "Mr. Wine conceded that prior to becoming plaintiff’s foreman he had contacted plaintiff, criticized plaintiff’s work performance.” An effort to obtain compliance with production standards is not necessarily "harassment.” Neither is setting a production standard necessarily a basis for finding a contribution to, or aggravation or acceleration of, a mental disability in a significant manner.
Also, the wcab majority said:
Dr. Rubin testified that the onset of plaintiff’s emotional disorder occurred in relationship to stresses he was experiencing in his workplace, "where he described himself as feeling mistreated, pressured, and demeaned.”
We finally find as fact that plaintiff honestly perceived that a personal injury occurred during the ordinary course of his employment caused his disability, that plaintiff’s mental disability was aggravated by his employment in a significant manner, and plaintiff’s honest perception, arose out of actual events of employment and not unfounded perceptions thereof.
The wcab majority later stated:
Plaintiff testified that Mr. Wine repeatedly criticized his performance throughout the day. Mr. Scott, plaintiff’s co-worker, acknowledged that Mr. Wine came up to plaintiff several times during the afternoon. Finally, Mr. Wine conceded that he had occasionally criticized plaintiff for bad repair and poor installations.
Therefore, because plaintiff has not [sic] met the tests enumerated in Deziel, id., and Section 301, We find that plaintiff has proven a work-related mental disability.
We believe the wcab majority mistakenly applied the invalidated Deziel subjective standard.
Recently in Greenwood v Pontiac Bd of Ed, 186 Mich App 389, 397; 465 NW2d 362 (1990), this Court reversed an award of compensation, holding that the wcab "erred as a matter of law in its attempted application of MCL 418.301(2); MSA 17.237(301)(2).” The Greenwood Court stated:
In amending § 301(2), the Legislature intended to create a statutorily defined causation standard designed to eradicate potential problems with the "honest perception” test set forth in Deziel. [Id., p 396.]
In view of the foregoing, we reverse the award of workers’ compensation benefits to plaintiff and remand this case to the wcab for further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
Danhof, C.J., concurred.
In this four-to-three decision, see the persuasive dissent of Chief Justice Coleman. Deziel, supra, pp 46-62. | [
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Per Curiam.
Defendant appeals from an order of the Workers’ Compensation Appeal Board which affirmed a hearing referee’s award of benefits. Defendant sought leave to appeal to this Court, which denied leave in an order dated April 17, 1989 (Docket No. 112727). Defendant then sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, remanded the matter to this Court for consideration as on leave granted. Petrie v General Motors Corp, 434 Mich 852 (1990). We reverse.
The matter was submitted to the hearing referee on the stipulated facts contained in the defendant’s trial brief. The pertinent facts set forth in defendant’s brief are as follows:
Morton Petrie, hereinafter referred to as "Plaintiff,” commenced his employment with the General Motors Corporation, hereinafter referred to as "Defendant,” on October 31, 1977. He was employed on the afternoon shift in the drill and tap department in an unskilled capacity. Plaintiff was assigned to the machine-head cylinder assembly line in Department 525. Plaintiff’s last day of employment was January 14, 1981. Plaintiff’s average weekly wage on his last date of employment was $474.94, exclusive of fringe benefits.
On January 14, 1981, at approximately 11:00 p.m., Plaintiff and his co-employee John Walters were discussing Plaintiff’s age and the fact that his physical appearance was that of a much younger man. At the conclusion of this conversation Plaintiff picked up a wooden stick, walked several feet and struck the side of an inspection crib in his department and looked inside. Plaintiff then dropped the stick, left Department 525 and walked east approximately 50 feet to Department 503 and entered the supervisor’s cubicle. Plaintiff climbed onto the top of the supervisor’s desk and from there to the top of a four-drawar [sic] metal file cabinet located at the side of the desk. From the file cabinet, Plaintiff climbed on top of an inspection crib (not the same inspection crib which he had earlier hit with the stick) which was adjacent to the supervisor’s cubicle.
Once on top of the inspection crib, Plaintiff squatted beneath a hoist rail and positioned himself midway along the east edge of the roof. Plaintiff then raised himself from a squat to a stooped position and peered through the fencing into the crib. Plaintiff stood up and turned to face north. John Walters, who had remained at his work station, yelled for Plaintiff to get down, stating further, "You might get into trouble.” Three other co-employees, Joe C. Thomas, Raymond McKenzie and Carl Komradt, also cautioned Plaintiff to climb down: Carl Komradt and Raymond McKenzie further warned Plaintiff that he could get electrocuted from the electric hoist rail suspended above the crib ceiling.
Despite the numerous warnings, Plaintiff did not descend from the top of the inspection crib. Instead, Plaintiff grabbed the electrical hoist power rail with his left hand, reached under and around the rail with his right hand and inserted his fingers into the triangular-shaped opening in the rail. Completion of an electrical circuit was achieved. Plaintiff then fell from the top of the inspection crib into the adjacent supervisor’s cubicle, striking his head on the edge of the file cabinet and landing on the supervisor’s desk.
An ambulance was summoned and Plaintiff was provided oxygen and conveyed to the plant medical facility where cardiopulmonary resuscitation was administered. An ems vehicle arrived and conveyed Plaintiff to Redford Receiving Hospital. Plaintiff arrived at the hospital at 11:55 p.m. and was pronounced dead at 12:07 a.m. on January 15, 1981.
An autopsy was performed at the Wayne County Medical Examiner’s office on January 15, 1981. The toxicology report indicated that the alcohol level was .07% in Plaintiff’s blood and .11% in his urine. Cause of death was determined to be electrocution.
In addition to agreeing on the facts, the parties also agree that we should turn our attention to the case of Crilly v Ballou, 353 Mich 303; 91 NW2d 493 (1958). In Crilly, two young workers were employed by a contractor for roofing and siding work. From time to time, the two workers would throw shingles and nails back and forth at each other. This conduct did not arise from vindictiveness or animosity, but constituted what generally has been referred to in these cases as "horseplay.” During one such incident, one of the workers was injured when one of the thrown shingles struck him in the eye.
The Crilly Court found the injury compensable, even though the workers were not employed to throw shingles at each other. Rather, the Court reasoned that the injury was compensable because it arose in the course of employment, with that concept including the acceptance of those activities by an employee which have a causal connection with the employment, even though the specific action which resulted in the injury was not, strictly speaking, the conduct the employee was employed to engage in. Crilly, supra at 326-327. The Crilly Court, however, did not define the limit at which horseplay ceases to be within the course of employment, and therefore compensable, and exceeds the course of employment and is no longer compensable. Id. Rather, the Court merely concluded that the injuries in that case were within the course of employment. Beyond the fact that Crilly stands for the proposition that some, though not all, injuries resulting from horseplay are compensable under the workers’ compensation act, the Crilly decision does not clearly determine how the case at bar should be decided.
We do, however, find guidance in Professor Larson’s discussion of this issue:
Injury to a non-participating victim of horseplay is compensable. As to instigators or participants, some states permit recovery if such activity has become customary.
The current tendency is to treat the question, when an instigator is involved, as a primarily [sic] course of employment rather than "arising-out-of-employment” problem; thus, minor acts of horseplay do not automatically constitute departures from employment but may here, as in other fields, be found insubstantial. So, whether initiation of horseplay is a deviation from course of employment depends on: (1) the extent and seriousness of the deviaton [sic], (2) the completeness of the deviation (i.e., whether it was commingled with the performance of duty or involved an abandonment of duty), (3) the extent to which the practice of horseplay had become an accepted part of the, employment, and (4) the extent to which the nature of the employment may be expected to include some such horseplay. [1A Larson, Workmen’s Compensation Law, § 23.00, p 5-178.]
Applying the four criteria stated by Larson, there is no basis for finding a compensable injury in the case at bar. First, concerning the extent and seriousness of the deviation from the course of employment, the deviation in the case at bar was significant, though certainly not complete. Specifically, the decedent left his work area and engaged in conduct wholly unrelated to his employment. This is in contrast to Crilly, supra, where the horseplay occurred while the workers were engaged in their assigned work. While it is true that the decedent in the case at bar did not abandon or deviate from his work to the extent of leaving the workplace, it is also true that he was not engaged in any productive labor at the time of the accident.
Second, Professor Larson directs our attention to the completeness of the deviation, that is, whether it was commingled with the performance of the employee’s duties or involved an abandonment of those duties. Again, as discussed above, the decedent’s activities at the time of his death were wholly unrelated to the performance of his job. He had ceased performing his job in order to engage in the conduct which led to his death.
The third factor is the extent to which the practice of horseplay had become an accepted part of the employment. This factor, as well as the fourth factor, the extent to which the nature of the employment may be expected to include some horseplay, are difficult to evaluate from the record before us. However, there is nothing in the stipulated facts to suggest that the horseplay had become an accepted part of the employment or was to be expected from the employment. Accordingly, we must weigh these factors against the awarding of benefits as well.
In answering the question whether the decedent’s injuries can be said to have arisen in the course of employment, we must answer that question in the negative and conclude that the wcab’s determination to the contrary constitutes an error of law. Simply put, the wcab erroneously reasoned that the decedent’s death arose in the course of employment. See Juniac v ITT Hancock Industries, 181 Mich App 636, 639; 450 NW2d 22 (1989).
Reversed. Defendant may tax costs. | [
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Per Curiam.
Defendant-husband appeals as of right from the property division contained in the parties’ judgment of divorce, as well as the trial court’s decision to award attorney fees to plaintiff-wife. We affirm.
Defendant first challenges the trial court’s determination that 336 shares of unvested General Motors stock should be considered part of the marital estate. Defendant’s testimony indicates that he acquired the stock as a bonus when he transferred employment from General Motors to eds 3Vi years before the parties’ divorce. He described the payout as follows:
I receive one-tenth of [the shares] every year, and half of those — one-[twentieth] of that are unvested. The other [one-twentieth] are vested. So I have to in essence — it will take 20 years to get them out.
MCL 552.18(2); MSA 25.98(2) provides:
Any rights or contingent rights in and to unvested pension, annuity, or retirement benefits payable to or on behalf of a party on account of service credit accrued by the party during marriage may be considered part of the marital estate subject to award by the court under this chapter where just and equitable.
In this case, the annual vesting of a portion of the stock would seem to put it within the "annu ity” class in the statute. The plain meaning of "annuity” includes (1) the annual payment of an allowance or income or (2) the right to receive this payment. See The American Heritage Dictionary of the English Language (1973), p 54.
We are of the opinion that defendant’s rights in the unvested stock/annuity must be considered to be payable to him "on account of service credit accrued by [him] during marriage.” Defendant obtained his rights in the unvested stock as a bonus sometime in early 1985. Because the bonus accrued during the parties’ marriage, the trial court properly considered it to be part of the marital estate under MCL 552.18(2); MSA 25.98(2). Defendant’s reliance on Kilbride v Kilbride, 172 Mich App 421; 432 NW2d 342 (1988), in this regard is misplaced, because Kilbride dealt with vested rights and a different statutory provision.
With regard to the award of attorney fees in the amount of $1,500 in favor of plaintiff, we find that the trial court did not abuse its discretion in making the award. It has long been the general rule that a trial court possesses broad discretion relative to the allowance of attorney fees in a divorce case. Curylo v Curylo, 104 Mich App 340, 352; 304 NW2d 575 (1981). Here, defendant’s annual income is nearly triple that of plaintiff’s. Given the disparity in the parties’ economic positions and plaintiffs consequent inability to adequately fund attorney fees, the award was justified.
Affirmed. | [
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Per Curiam.
This is an appeal from a decision of the Workers’ Compensation Appeal Board.
On December 18, 1981, plaintiff filed a petition for compensation and alleged personal injury or disablement from occupational disease. An amended petition was filed on November 8, 1982. On March 2, 1983, a hearing was held and the hearing referee concluded that plaintiff had established total disability from his skilled employment. On November 30, 1988, the Workers’ Compensation Appeal Board affirmed in part the decision of the referee but dismissed plaintiff’s petition for failure to give timely notice and file a claim.
Plaintiff filed with this Court a delayed application for leave to appeal the wcab decision. Plaintiff’s application was filed on January 4, 1989, one day after the thirty-day time period for appeals provided for in MCL 418.861; MSA 17.237(861) had expired. On September 7, 1989, the parties were directed to brief the issue whether this Court has jurisdiction to grant leave to appeal more than thirty days after the final decision of the wcab.
Plaintiff argues that MCR 7.203(B)(3) allows for an appeal from a final order of an administrative agency or tribunal which by law is appealable to or reviewable by this Court or the Supreme Court. Plaintiff insists that nothing in this court rule prohibits delayed applications for leave to appeal, nor does the rule make the thirty-day time limit jurisdictional. In addition, MCR 7.205(F) provides in general for delayed applications for leave to appeal.
The Legislature in MCL 418.861; MSA 17.237(861) has enabled this Court "to review questions of law involved in any final order of the board, if application is made by the aggrieved party within 30 days after such order by any method permissible under the rules of the courts of the laws of this state.” In interpreting the relationship between this statute and the court rules, a panel of this Court has already determined, as a threshold matter, that the appeal must be one "provided by law.” Bellamy v Arrow Overall Supply Co, 171 Mich App 310, 314; 429 NW2d 884 (1988). Because by statute only final orders appealed within thirty days are those appealable "by law,” we agree with the reasoning in Bellamy that "the plain and unambiguous language of § 861 limits the jurisdictional power of this Court.” Id. Our review is limited to questions of law involved in any final order of the board if application is made within thirty days of the order.
On the basis of this Court’s decision in Bellamy, and the Supreme Court’s unpublished order in Grant Airmass Corp v Michigan Court of Appeals, issued September 19, 1990 (Docket No. 88274), we can only conclude that this Court lacks jurisdiction to entertain plaintiff’s appeal.
Dismissed for lack of jurisdiction. | [
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Sawyer, J.
Defendant pled guilty of one count of possession of more than 50 grams, but less than 225 grams, of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), and was sentenced to serve a term of thirteen to twenty years in prison. He now appeals and we affirm.
Defendant’s guilty plea was conditioned upon the right to raise on appeal the issue whether the search which disclosed the controlled substance was valid. The issue whether the search was lawful represents defendant’s sole issue on appeal. For the reasons to be discussed below, we conclude that the trial court did not err in not suppressing the evidence pursuant to the Fourth Amendment of the United States Constitution.
On the afternoon of October 27, 1987, Harry Lenardson, Chief of Police of the City of Bridgman, was patrolling 1-94 in Berrien County when he observed a white pickup truck travelling westbound at a high rate of speed, emitting excessive smoke. Chief Lenardson then activated his overhead lights and pulled the pickup over. It is not disputed that this was a valid traffic stop. Chief Lenardson testified at the preliminary examination that his original intent was to issue a citation for the excessive smoke and to give a warning concerning the speed.
Chief Lenardson approached the vehicle and requested the driver, Victor Rodriguez, to produce his driver’s license. Rodriguez informed Chief Lenardson that he did not have his driver’s license with him and, in response to the chiefs inquiry whether he had any kind of identification, produced various documents, apparently including a proof of insurance. At this point, Chief Lenardson requested Rodriguez to get out of the vehicle and accompany him back to the squad car. According to Chief Lenardson, at that point he had not yet made a decision regarding whether he was going to arrest Rodriguez for having no operator’s license in his possession or merely issue a citation and release him. Apparently, the chief intended to further investigate the matter before reaching a decision.
While Chief Lenardson was in his squad car, with Rodriguez seated next to him in the front seat, Berrien County Deputy Sheriff Jamie Lenard- son arrived at the scene. Chief Lenardson asked Deputy Lenardson to go to the pickup truck and ask the passenger to identify himself. Meanwhile, Chief Lenardson called the dispatcher and requested a check to determine if Rodriguez had a driver’s license. While Chief Lenardson was waiting for a response to the radio call, he heard his son shout to him, "they have got a gun,” and he saw his son draw his service revolver out and point it at defendant. Chief Lenardson then left his vehicle and went around and pulled Rodriguez out of the squad car, patted him down, handcuffed him, and placed him in the back seat of the squad car. Chief Lenardson observed Deputy Lenardson handcuff defendant and put him in the rear of the deputy’s squad car.
Deputy Lenardson testified that he approached the passenger side of the truck to obtain defendant’s identification pursuant to Chief Lenardson’s request. The deputy asked defendant, who later identified himself as Gilbert Martinez, for identification, and defendant indicáted that he did not have any. At this point, Deputy Lenardson requested defendant to step from the vehicle, which defendant did. Defendant apparently indicated to Deputy Lenardson that he did not have any identification because he had lost his wallet. Deputy Lenardson testified that he requested defendant to get out of the vehicle for the deputy’s own safety and that it was his standard practice in every traffic stop to have the individuals involved get out of the vehicle. After defendant got out of the vehicle, Deputy Lenardson looked inside the vehicle and saw a green leather bag lying on the passenger side floorboard._
According to Deputy Lenardson, the bag was partially open, and from his position he could see a plastic baggie tightly wrapped around what appeared to be a handgun. The deputy then reached inside the vehicle and into the bag and felt the handgun inside the plastic baggie. At this point, Deputy Lenardson yelled to Chief Lenardson that he had found a gun, drew his service revolver, and placed defendant against the side of the pickup truck. Deputy Lenardson then patted down defendant and asked him whether he had a permit for the weapon, to which defendant replied that he did not. Deputy Lenardson then handcuffed him and started to walk him back to the patrol car. While walking to the patrol car, he asked Rodriguez whether he had a permit for the weapon, and Rodriguez responded that he did not.
After defendant was placed in the rear of Deputy Lenardson’s vehicle, and Rodriguez was secured in the rear of Chief Lenardson’s vehicle, both officers returned to the pickup truck to conduct a further search. Deputy Lenardson indicated to Chief Lenardson that, in addition to finding the handgun, he had observed four packets containing large sums of money. Deputy Lenardson again returned to the passenger compartment of the vehicle and to the green leather bag and confirmed the presence of the handgun and the money. Meanwhile, Chief Lenardson went to the open bed of the pickup truck and searched a garment bag, which was in the bed of the pickup truck near the tailgate and apparently closed. Inside the garment bag, Chief Lenardson found approximately one pound of cocaine. The officers then returned to their vehicles and informed Rodriguez and Martinez that, in addition to being under arrest for carrying a concealed weapon, they also were under arrest for possession of narcotics. It also should be noted that the weapon seized, a nine-millimeter Walther ppk-s semiautomatic pistol, was unloaded, and apparently no ammunition for the weapon was ever recovered.
On appeal, defendant argues that the search without a warrant, which yielded the cocaine, was unlawful and that the trial court erred in failing to suppress the evidence. Specifically, defendant argues that Deputy Lenardson was without authority to request defendant to get out of the vehicle and, therefore, never should have been in a position to observe the handgun and that, in any event, the subsequent search without a warrant of the garment bag in the bed of the truck, which yielded the cocaine, was unlawful, even if the officers’ conduct up to that point was authorized. We disagree.
The first question to be answered is whether Deputy Lenardson was authorized to request defendant, as a passenger in the vehicle, to step out of the vehicle. This appears to pose a question of first impression in Michigan, though the United States Supreme Court has addressed the question whether an officer during a routine traffic stop may ask a driver to step from a vehicle. In Penn sylvania v Mimms, 434 US 106, 110-111; 98 S Ct 330; 54 L Ed 2d 331 (1977), the Supreme Court held that a police officer may request a driver during a routine traffic stop to step from the vehicle and off to the shoulder of the road:
We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v Ohio, [392 US 1, 23; 88 S Ct 1868; 20 L Ed 2d 889 (1968)]. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. "According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J Crim L C & P S 93 (1963).” Adams v Williams, 407 US 143, 148, n 3 [92 S Ct 1921; 32 L Ed 2d 612 (1972)]. We are aware that not all these assaults occur when issuing traffic summons [sic], but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v Robinson, 414 US 218, 234 [94 S Ct 467; 38 L Ed 2d 427 (1973)]. Indeed, it appears "that a significant percentage of murders of police officers occurs when the officers are making traffic stops.” Id. at 234, n 5.
The hazard of accidental injury from passing traffic to an officer standing on the driver’s side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.
While Mimms justifies Chief Lenardson’s conduct in asking Rodriguez to step from the vehicle, it does not directly answer the question whether Deputy Lenardson acted properly in asking defendant to step from the vehicle. However, we are persuaded that the reasoning behind Mimms is equally applicable to the passenger of a vehicle as it is to the driver of the vehicle. That is, the Supreme Court in Mimms concluded that an officer was justified in asking the driver to step from a vehicle for the officer’s own safety, recognizing that a large number of assaults on officers occurs during routine traffic stops. This concern is equally applicable to the passenger of a vehicle as it is to a driver. In other words, if a police officer is justified in being concerned about a possible assault by the driver of a vehicle stopped during a traffic stop, that officer is also justified in being concerned about a possible assault by a passenger in that vehicle.
Indeed, this reasoning persuaded the Appellate Division of the Supreme Court of New York to reach a similar conclusion in People v McLaurin, 120 AD2d 270, 274-275; 508 NYS2d 429 (1986):
We fail to discern any appreciable difference between driver and passenger in the degree of risk posed to the safety of a police officer. Hence, police officers are not required, as defendant contends, to treat passengers differently from the driver, and we reject the argument that the circumstances which render it permissible to order a driver out of a car after a lawful stop for a traffic violation are not equally applicable to a passenger. Before a police officer orders a passenger out of a car, he is not required to have, separate and distinct from the underlying traffic violation which serves as the predicate for the stop, an articulable basis to support a suspicion either as to the existence of criminal activity by the passenger or that he poses a threat to the officer’s safety.
Accordingly, we hold that a police officer may, consistent with the Fourth Amendment of the federal constitution, order a passenger to get out of a motor vehicle stopped during a routine traffic stop under the same circumstances in which the officer may order the driver to get out of the vehicle. Accordingly, Deputy Lenardson was authorized to ask defendant to step from the vehicle and, therefore, was properly in a position to observe the handgun in plain view in the green leather bag in the passenger compartment of the pickup truck.
However, defendant also argues that, even if the seizure of the handgun and search of the green leather bag were proper, the subsequent search of the garment bag in the bed of the pickup truck, which contained the cocaine, was improper and the trial court erred in refusing to suppress evidence of the cocaine seized. We disagree.
At the time that the officers conducted the further search of the vehicle, including Chief Lenard-son’s search of the garment bag, both defendant and Rodriguez were under arrest for the weapons charge and had been handcuffed and separately placed in the rear seats of the officers’ respective patrol vehicles. Thus, we must determine whether the search of the garment bag without a warrant was authorized under an exception to the Fourth Amendment. We conclude that it was.
The prosecutor in his brief on appeal offers two justifications for the search of the garment bag, namely, the so-called "automobile exception” and the "search incident to arrest” exception. We conclude that the search comes within the provisions of the automobile exception to the warrant requirement.
In United States v Ross, 456 US 798; 102 S Ct 2157; 72 L Ed 2d 572 (1982), the Supreme Court reiterated the rule that a search of an automobile without a warrant is reasonable where the automobile legitimately has been stopped by a police officer and the police officer has probable cause to conduct the search. The Court further clarified the rule to specifically hold that if probable cause justifies the search of the lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Thus, the scope of a search without a warrant authorized by the automobile exception is neither broader nor narrower than that which a magistrate could legitimately authorize by a search warrant. Id. at 825. See also Michigan v Thomas, 458 US 259, 261; 102 S Ct 3079; 73 L Ed 2d 750 (1982).
Thus, the question may be framed as follows: Does the presence of a firearm and a large sum of currency in one container in a vehicle provide probable cause to believe that other weapons, contraband, or evidence of a crime may be found in another container in the vehicle? This presents a close question. Formulating an answer to this question is hampered by the fact that the prosecutor does not cite any cases in which probable cause was found to exist upon this minimal amount of evidence, nor, for that matter, does defendant cite any cases in which probable cause has been found not to exist upon this amount of evidence. Thus, to resolve our question, we turn to the definition of probable cause, that the facts and circumstances would warrant a person of reasonable prudence to believe that the evidence of a crime or contraband sought is in the stated place. See People v Goins, 164 Mich App 559, 560; 417 NW2d 499 (1987). Thus, we need to determine whether a person of reasonable prudence would conclude from the presence of a firearm and a large sum of currency in one container that other weapons or contraband could be found in another container within the vehicle. With some hesitation, we conclude that the answer to that question is "yes.”
Taken separately, neither the gun nor the currency would establish probable cause to believe that other evidence or contraband could be found elsewhere in the vehicle. The presence of the gun in the container might suggest that a second gun may exist in another container, though this is far from a foregone conclusion. Similarly, the presence of such a large sum of currency without a ready explanation for its presence might suggest, as it did to Deputy Lenardson, that defendants either had been involved in a robbery or were involved in drug trafficking. It therefore seems reasonable that if not another weapon, then contraband or other evidence of crime could be found in the other container in the vehicle.
We are cognizant that merely carrying a large sum of cash is not itself a crime, though carrying a concealed weapon in an automobile is a crime. However, the two items, taken together, could lead a reasonably prudent person to conclude that contraband might be found in the garment bag in the bed of the pickup truck. Moreover, we will reverse a trial court’s determination of a suppression issue only if the ruling was clearly erroneous, that is, if it left us with a definite and firm conviction that a mistake has been made. See People v Harmelin, 176 Mich App 524, 532; 440 NW2d 75 (1989). With this standard of review in mind, we conclude that the trial court did not clearly err in determining that the search was proper.
Having concluded that the search is within the automobile exception to the warrant requirement, we need not resolve the question whether the search could be authorized as a search incident to arrest.
Affirmed.
Weaver, P.J., concurred.
Deputy Lenardson is the son of Chief Lenardson.
At this time, Rodriguez apparently indicated that he had left his driver’s license in Texas. The vehicle driven by Rodriguez had Texas license plates.
It is not entirely clear from Deputy Lenardson’s testimony exactly when the amount of money involved was determined. However, the deputy apparently did determine on his initial investigation that there was a large number of bills in white envelopes in denominations of twenty, fifty, and one hundred. The total amount involved was approximately $10,000.
Since Const 1963, art 1, § 11 precludes the suppression of evidence of any drug or firearm seized outside the curtilage of a dwelling, our inquiry is limited to the question whether the search was lawful under the Fourth Amendment of the federal constitution. Accordingly, we need not determine whether the Michigan Constitution would afford a suspect greater rights in this area than does the federal constitution. See People v Harmelin, 176 Mich App 524; 440 NW2d 75 (1989), cert gtd on other grounds sub nom Harmelin v Michigan, — US —; 111 S Ct 337; 109 L Ed 2d 742 (1990). Specifically, we need not determine whether a police officer, under the Michigan Constitution, may order a passenger out of a vehicle during a routine traffic stop where the officer has no particular reason to fear the passenger or suspect that the passenger is involved in criminal activity. Cf. People v Burrell, 417 Mich 439; 339 NW2d 403 (1983) (a passenger’s refusal to identify himself or the use of an alias does not establish probable cause to conduct a search or make an arrest).
Indeed, one could even advance the argument that the passenger presents a greater threat to the officer than does the driver, since the officer’s attention in the traffic stop is going to be focused on the driver, and he may not be immediately aware of the activities of the passenger, including the possibility that the passenger may retrieve a firearm and assault the officer.
Again, we make no determination of whether such a practice is permissible under the Michigan Constitution.
Defendant does not dispute that the seizure of the handgun and the search of the bag containing the gun was proper if Deputy Lenardson was authorized to request defendant to step from the vehicle. Rather, defendant’s argument with respect to the seizure of the handgun and the search of the green leather bag is limited to the assertion that Deputy Lenardson was not authorized to order defendant from the vehicle and, therefore, was never in a proper position to observe the handgun in plain view. Since we have concluded that the deputy was authorized, we can conclude without further discussion that the seizure of the handgun, the search of the green leather bag, and the discovery of the money were authorized.
Defendant does cite People v Miller (On Remand), 128 Mich App 298; 340 NW2d 858 (1983), in which the Court, in dicta, stated that probable cause did not exist to search a briefcase located inside the passenger compartment of a car, with a handgun lying in open view on the seat next to the briefcase. Id. at 305, n 4. However, the facts for finding probable cause are stronger in the case at bar, because both a handgun and a large sum of money were discovered and both were inside a container, rather than in plain view on the seat of the vehicle.
E.g., defendants were not merchants on their way to make a bank deposit.
As defense counsel developed at the preliminary examination, it apparently is not a crime in defendant’s home state of Texas to carry a handgun. This, however, is not entirely relevant, since the offense occurred in Michigan, not Texas. But see 18 USC 926A (a person who is lawfully entitled to possess and carry a firearm may lawfully possess and carry such firearm to any other place, provided the firearm is unloaded and is inaccessible from the passenger compartment of the vehicle). | [
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Per Curiam.
The people appeal as of right from the circuit court’s order dismissing criminal charges against defendant on the basis of a finding of entrapment. Defendant was charged with delivery of less than fifty grams of cocaine and with being an habitual offender, third offense. MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv); MCL 769.11; MSA 28.1083. We reverse.
On February 16, 1989, undercover police officer Maria Medina was working on a street corner in the City of Jackson. The police had information that controlled substances were being sold openly at the intersection where Medina was stationed. Her specific instructions were to stand on the corner and sell cocaine to anyone who asked to buy it. Medina was told not to initiate conversation about drugs.
At approximately 10:30 p.m., defendant approached the corner. After a greeting, he told Medina he was "looking for a ten.” A ten refers to a ten dollar rock of cocaine. Medina stated that she had no tens, only twenties. Defendant asked if she would sell him a twenty for ten dollars. She did, and defendant was arrested a short time later.
Defendant claimed that Medina called him over and told him that she had some cocaine. He told her that he did not have twenty dollars and began walking away. She then offered to sell him a twenty for ten dollars.
For purposes of the entrapment hearing, the judge accepted the police officer’s version of the events. He then held that defendant had been entrapped as a matter of law, relying on Saunders v People, 38 Mich 218 (1878).
In an entrapment hearing, the defendant bears the burden of proving by a preponderance of the evidence that law enforcement officials were engaged in reprehensible behavior to obtain a conviction. We examine the facts of each case to determine whether the governmental activity involved would induce someone not ready and willing to commit the crime to engage in criminal activity. The trial judge’s findings on the issue are subject to appellate review under the clearly erroneous standard. People v Jamieson, 436 Mich 61; 461 NW2d 884 (1990); People v D’Angelo, 401 Mich 167, 183; 257 NW2d 655 (1977). The fact that the government supplies the contraband is only one factor relevant to the entrapment analysis. Jamieson; People v Holst, 186 Mich App 473; 465 NW2d 16 (1990).
In Jamieson, the Supreme Court reaffirmed this state’s use of the objective test in determining whether there has been entrapment. Discussing Saunders, the Court recognized that the conduct described in 1878 as "scandalous and reprehensible” would now be fairly considered by most to be "effective law enforcement activity.” Jamieson, pp 88-89.
In the instant case, we conclude that the governmental behavior under scrutiny would not induce an unwilling person to engage in criminal activity. The police had information that drug activity was taking place in the area. The undercover officer did not solicit defendant to buy drugs. A person not otherwise disposed to criminal activity would have continued walking. The trial court erred in dismissing the charges.
Reversed. | [
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Griffin, P.J.
This appeal involves a civil action in which plaintiffs, Sajida Mirza and Manufacturers National Bank of Detroit, trustees of the A. Malik Mirza Residuary Trust, sued defendant, Maccabees Life and Annuity Company, seeking to recover the proceeds of a life insurance policy covering decedent, A. Malik Mirza, M.D. Defendant moved for and obtained summary disposition on the ground that Mr. Mirza’s death was a suicide, thereby precluding coverage pursuant to an applicable policy provision. Plaintiffs now appeal as of right, and we affirm.
i
On August 28, 1985, decedent applied for and obtained from defendant a policy of universal extraordinary life insurance. Defendant agreed to insure the life of decedent and to pay on his death to the beneficiary the sum of $800,000 if death occurred during the first year, and $250,000 if death occurred thereafter. The policy contained the following general provision relative to death by suicide:
If the insured dies by suicide while sane or insane, within two years from the Date of Issue, the Insurance Proceeds will not be paid.
In January 1987, decedent entered Oakwood Hospital in Dearborn, Michigan. According to the affidavit of his wife, plaintiff Sajida Mirza, decedent gave the following history and complaints:
[F]or the previous several weeks, he had been feeling very depressed, had lost his appetite, had lost his interest in activities, had trouble falling asleep and staying asleep, had difficulty functioning at work, had lost interest in sexual activity, had experienced significant psychomotor retardation, felt helpless, hopeless, worthless and useless, had become despondent, had isolated himself and did not want to see anyone, had spoken of hurting himself and had actually attempted to choke me immediately prior to such hospitalization, was "thinking of ending it all,” and had mentioned to me that there was "no future for us and that we should end it all” (earlier, he had threatened to poison his whole family and himself with carbon monoxide).
Decedent was discharged from Oakwood Hospital on January 26, 1987. According to Sajida Mirza, decedent continued treatment with his treating psychiatrist on an outpatient basis. Thereafter, on February 5, 1987, approximately one and a half years after the insurance policy became effective, decedent was discovered hanged in the bedroom of his West Bloomfield, Michigan, home. Decedent left no note or writing to explain his hanging.
On May 4, 1988, plaintiffs brought the instant action to recover the $250,000 face amount of the insurance policy. Defendant interposed the suicide provision as a defense, and thereafter brought a motion for summary disposition pursuant to MCR 2.116(0(10). Following a hearing on April 26, 1989, the trial court granted defendant’s motion.
n
On appeal, plaintiffs make two principal arguments in support of their position that summary disposition was improper. As a preliminary matter, we must first dispose of plaintiffs’ second contention. Although they did not argue the point at the hearing below, plaintiffs argue now that the affidavit of decedent’s wife, Sajida Mirza, creates a factual question relative to whether the suicide provision was part of the insurance contract. In pertinent part, Mrs. Mirza’s affidavit reads:
Following the death of my husband, I searched extensively through his personal records and effects that he kept in an orderly and complete fashion. Although I was able to locate certain other policies of insurance pertaining to my late husband, and even certain portions of the life insurance contract between my late husband and Maccabees Life and Annuity Company, I was unable to find any documents or writings from Maccabees which in any way excluded coverage for life insurance benefits from the death of my late husband, including but not limited to any documents or writings containing an exclusion for death by suicide. I have never seen or been aware of, either before or after my husband’s death, any documents or writings from Maccabees which in any way excluded life insurance benefits upon the death of my late husband.
We find plaintiffs’ contention in this regard to be disingenuous and accordingly reject it. The gist of plaintiffs’ position appears to be that Mrs. Mirza’s affidavit supports the inference that defendant never provided decedent with the policy, its suicide provisions in particular, or an opportunity to reject and cancel the policy pursuant to MCL 500.4015; MSA 24.14015. However, in connection with its motion for summary disposition, defendant submitted the affidavit of its broker, Thomas Hogan, directly refuting any claim of nondelivery. Specifically, Hogan stated that he personally delivered the subject policy to decedent at 10:00 a.m. on December 6, 1985. He further averred that in 1986 decedeiit returned the policy to him to effectuate a change in ownership and that it was being held by Executive Benefits Plans Company pending that change.
With respect to a properly supported motion for summary disposition under MCR 2.116(C)(10), the party opposing the motion has the burden of showing, by affidavit or other documentary evidence, that there is a genuine issue for trial. MCR 2.116(G)(4); Major v Auto Club Ins Ass’n, 185 Mich App 437; 462 NW2d 771 (1990). Here, plaintiffs failed to meet this burden. The affidavit of Sajida Mirza to the effect that she could not find the policy among decedent’s papers does not create a factual question regarding disclosure of the policy and its suicide provisions. The affidavit of Thomas Hogan on this point remains uncontroverted, and plaintiffs have failed to persuade us that a genuine issue of material fact exists.
iii
We now turn to plaintiffs’ principal argument on appeal. Plaintiffs contend that the trial court erred in entering summary disposition in favor of defen dant because, at the very least, a question of fact exists regarding whether decedent committed "suicide” within the meaning of the policy provision. Plaintiffs begin with the premise that the term “suicide” contemplates a volitional, intentional act of self-destruction. They then argue that decedent’s hanging was not volitional because he suffered from an organic depressive condition which rendered him incapable of resisting the impulse to commit the act. In support of this proposition, plaintiffs rely on the affidavit of Dr. Tanay:
Based upon available information I am of the opinion that the self-inflicted death of Dr. Mirza occurred in a state of mind which rendered him unable to exercise choice and deliberation. Dr. Mirza suffered from Depressive Disorder, which is a psychobiological condition not subject to willpower and which renders the person incapable of exercising reasonable choices. It is my opinion that the self-destructive behavior of Dr. Mirza on February 5, 1987, was a symptom of his illness over which he had no control. A number of psychiatric diseases are associated with increased mortality, Depressive Disorder is foremost among them. The death of Dr. Mirza was the consequence of a disease and not the result of a decision-making process. The depressive illness was endogenous in nature, i.e., it was not a response to some external stresses but the consequence of biochemical processes within the body. On January 17th Dr. Mirza, as the result of the above mentioned condition, made a homicidal attack upon his wife requiring his admission to a hospital. No criminal proceedings were instituted against Dr. Mirza since it was recognized that his behavior was not volitional in nature. Similarly, the self-destructive behavior of this individual was not deliberate in nature.
My opinion is based upon review of extensive records and an interview with Dr. Mirza’s widow.
We begin our analysis by noting that the Michigan cases addressing the scope of the "suicide, sane or insane” exclusion are far from legion. Indeed, the cases relied on by the parties are more than a century old.
In Blackstone v Standard Life & Accident Ins Co, 74 Mich 592; 42 NW 156 (1889), the insured cahsed his own death by slitting his throat with a razor, The defendant’s policy excluded coverage for death "by suicide,” but made no mention of "sane or insane.” The plaintiff sought recovery on the ground that the insured was insane at the time he committed the fatal act and obtained a jury verdict in her favor after establishing this fact at trial.
Under what was then the majority rule, the Supreme Court affirmed the jury’s verdict. After finding sufficient evidence to support a finding of insanity, the Court reasoned:
The leading case upon the subject is that of Ins Co v Terry, [82 US] 15 Wall 580 [21 L Ed 236 (1873)], approving what had been known as "New York doctrine.” In this case the policy was to be void if the insured should die by his own hand. Mr. Justice Hunt, after a full review of the cases, laid down the rule thus:
"If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery.
"If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties as so far impaired that he is not able to understand the moral character, the general nature, consequences, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.”
The effect of this doctrine is that, in order to work a forfeiture under such a policy on the ground of self-destruction, the insured must have had sufficient mental capacity not only to understand that the act will destroy his life, but also to distinguish its moral quality and consequences,— the right and wrong of it, — and must perform the act, not under any uncontrolled impulse resulting from insanity, but voluntarily, with the intent to end his life; in other words, that it must be an act done with an evil motive. We think that this doctrine is supported by the great preponderance of authority in this country, and must be conceded to be the prevailing American doctrine; and it seems to us to be the safer and more reasonable and more consistent doctrine. [Id. at 609-610.]
Significantly, the Court went on to observe that the insurer could have drafted its policy so as to exclude coverage for insane suicide:
Policies issued by some life insurance companies contain a condition or provision that it shall be void if the insured shall die by suicide, felonious or otherwise, sane or insane; others provide, if the insured shall die by suicide, sane or insane; others provide for an avoidance, if the insured die by his own hand, sane or insane; while others provide for an avoidance if he shall die by his own act and intention, sane or insane. Such a condition, expressed in any of these forms, covers any case of voluntary self-destruction, and no kind or degree of insanity will prevent an avoidance; and the courts, not only in England, but in this country, have almost universally held that with such provisions in policies of life insurance the policies are void if the insured come to his death by his own hand. Some of those cases are cited by the learned counsel for the defendant in their brief as having some bearing upon the question now in issue. We think they have no bearing upon the case where no such proviso is found in the policy. [Id. at 611.]
In direct response to cases such as Blackstone, insurers began adding to their suicide exclusions the language "sane or insane.” See Estate of Galloway v Guaranty Income Life Ins Co, 104 NM 627; 725 P2d 827 (1986); Aetna Life Ins Co v McLaughlin, 380 SW2d 101 (Tex, 1964); anno: Insurance: Construction of "sane or insane” provision of suicide exclusion, 9 ALR3d 1015. Our Supreme Court dealt with just such an exclusion two years prior to Blackstone in Streeter v Western Union Mutual Life & Accident Soc, 65 Mich 199; 31 NW 779 (1887).
In Streeter, the defendant insurer issued a life insurance policy excluding coverage if the insured "die[d] by his own hand, sane or insane” within three years of the date of issuance. Within that period, the insured fell on a sidewalk, injuring the base of his brain. Six weeks later, the insured shot himself through the head. At trial, there was testimony that the insured’s mental state had deteriorated to the point where he could not control his actions.
Although the exact procedural posture of the case is unclear, the Supreme Court affirmed a judgment in favor of the defendant insurer. In so doing, the Court rejected the plaintiffs argument that, by adding the words "sane or insane,” the insurer had done nothing to expand the scope of the exclusion. In dicta, the Court stated that the exclusion might not apply if it could be shown that the insured acted involuntarily:
If a person does an act in a state of unconscious ness, or involuntarily, whether he be sane or insane, such act is nothing more nor less than accidental, and would not operate to forfeit the policy. The record in this case does not disclose such a state of facts. There was no evidence that the act was involuntary, or that Mower was unconscious when he inflicted upon himself the fatal wound. The only testimony which can be claimed to have any bearing upon the subject is that given in answer to questions calling for the opinion of the witnesses as to whether Mower’s insane mental condition affected his ability to control his own physical actions. These witnesses did not claim to have been present at the time, or to have been acquainted with the circumstances of the transaction, but they used their opinion upon what they had observed of his mental condition previous to the act of self-destruction. Such testimony was entirely destitute of any probative quality. The court was right in disregarding it. The same point was passed upon in De Gogorza v Knickerbocker Life Ins Co, [65 NY 232 (1875)]. The policy covers all conscious acts of the insured by which death by his own hand is compassed, whether he was at the time sane or insane. If the act was done for the purpose of self-destruction, it matters not that the insured had no conception of the wrong involved in its commission. Upon the facts presented by this record, the charge of the trial judge was correct. [Id. at 202.]
In the present case, plaintiffs argue that summary disposition was improper because, unlike Streeter, there is evidence in this case that decedent’s actions in hanging himself were involuntary. Plaintiffs point to the affidavit of Dr. Tanay and argue that decedent’s hanging was the result of an irresistible impulse which negated any suicidal intent. The essence of plaintiffs’ position is that, in light of modern psychological understanding, a self-inflicted death resulting from an organic depressive disorder is no more a "suicide” than death resulting from any other internal medical illness. After thorough consideration, we find this argument to be unpersuasive.
Initially, we note that we do not find the dicta in either Blackstone or Streeter to be dispositive. Accordingly, we look to other jurisdictions.
The "irresistible impulse” issue was recently addressed by the California Supreme Court in Searle v Allstate Life Ins Co, 38 Cal 3d 425; 212 Cal Rptr 466; 696 P2d 1308 (1985). In Searle, the court held that an exclusion for "suicide, whether sane or insane” did not apply if the insured did not understand the physical nature and consequences of the act. Such an impairment of the insured’s faculties, the court held, would negate suicidal intent. However, in remanding the case for a new trial, the court held that an irresistible impulse would not negate such intent:
The trial court instructed the jury that Searle had the burden of proof not only on the issue of suicidal intent but also on Martin’s lack of "mental capacity to govern his own conduct at the time he shot himself.” . . . Since the jury found against Searle on both issues, it is unclear what effect the trial court would have given to a verdict that Martin lacked capacity to govern his own conduct even though he was able to form a suicidal intent at the time he shot himself. For guidance on retrial, we consider the relevance, if any, of a finding of inability to govern one’s conduct. To put it another way, we consider whether suicidal intent can be negated by proof that the decedent killed himself under the compulsion of an irresistible impulse.
We think not. As already explained, insanity or other mental derangement does not negate suicidal intent if the decedent is shown to have performed the self-destructive act with an understanding of its physical nature and consequences. Proof that the act was impelled by an irresistible impulse would merely establish that "self-destruction was the very result intended, albeit by a deranged mind.” (Johnson v Metropolitan Life Insurance Company, [404 F2d 1202, 1204 (CA 3, 1968)]). Thus, proof of the irresistible impulse would not be inconsistent with a finding of suicide while insane. (Ibid.; Nielsen v Provident Life and Acc Ins Co, (1979) 100 Idaho 223; 596 P2d 95, 98; Strassberg v Equitable Life Assur Soc, (Sup Ct 1949) 196 Misc 387; 91 NYS2d 903; National Life Ins Co v Watson, (1922) 194 Ky 355; 239 SW 35). [Id., 38 Cal 3d 440-441.]
In the Johnson case, relied on by the court in Searle, the United States Court of Appeals for the Third Circuit affirmed an order of summary judgment in favor of the insurer on the basis of a two-year policy exclusion for "suicide, sane or insane.” However, the decision of the district court in Johnson contains the more cogent and instructive rationale regarding the issue. In Johnson, the insured took his own life by spreading fuel oil about his home and upon himself and igniting it. In opposing the defendant insurer’s motion for summary judgment, the plaintiff raised the precise argument offered by plaintiffs here: "[T]he notion that insanity producing an irresistible impulse to do the destructive act negates the necessary volitional intent for 'suicide.’ ” Johnson v Metropolitan Life Ins Co, 273 F Supp 589, 593 (D NJ, 1967). The district court rejected this argument, reasoning as follows:
Plaintiffs remaining position, then, is that her husband’s insanity, assuming it be proved, may have been of such a nature that he was irresistibly compelled by impulse to immolate himself, and therefore, that his action was no more the product of a conscious intent that [sic] would be a purely accidental act, e.g., the inadvertent discharge of a gun, on the part of a sane insured.
In this regard, one must be careful to distinguish questions of intent and questions of motive. Psychoanalytically oriented and other schools of "depth psychology” have made the notions of "unconscious” or "subconscious” motive common parlance. But it is not helpful to define "suicide” as an intentional self-destruction, and then to confuse the slippery notion of "intent” with its underlying causes.
Whatever the constellation of drives, impulses or subconscious motives which cause the subject to perform a given act, unless that act is actually inadvertent, its physical execution is "intentional” in the ordinary sense of the word. In short, my motive for doing, or impulse to do, the act is one thing; the fact that I therefore intend to do it and do so is a separate point and one that is not here in doubt. To the extent that Richard Johnson clearly understood the fatal consequences of his actions, his self-destruction was intentional suicide. [Id. at 594.]
The district court further dismissed the plaintiffs assertion that "the mantle of modern psychiatric knowledge” compelled a different result:
If anything, modern psychology and psychiatry, particularly has counseled that the line between volition and irresistible impulse, conscious and unconscious motive is a murky and uneven one. If it has been necessary to open this Pandora’s box in the sphere of criminal responsibility and to apply our imprecise tools as best we can, most courts have, I think wisely, kept it shut on the present issue by giving the "suicide, sane or insane clause” its plain, intended meaning. As the Supreme Court sensibly pointed out almost a century ago, it is precisely to avoid such imponderables that the insurer inserts the modifying language. Bigelow v Berkshire Life Ins Co [93 US 284, 286; 23 L Ed 918 (1876).] [Id. at 594-595.]
We find this reasoning to be well-founded and highly persuasive. We therefore hold that proof that the insured acted as a result of an irresistible impulse in taking his own life does not negate suicidal intent. Accordingly, we conclude that the trial court did not err in ruling that the affidavit or Dr. Tanay failed to raise a genuine issue of material fact concerning the applicability of the policy exclusion.
Affirmed.
In so doing, the court adopted the minority rule which holds that an act of self-destruction under such circumstances is not intentional suicide. Whether or not Michigan adheres to this rule is unclear. See, generally, Ann Arbor Trust Co v North American Co for Life & Health Ins, 527 F2d 526, 527 (CA 6, 1975), cert den 425 US 993 (1976). However, we need not resolve the matter, because the precise question is not before us. Dr. Tanay’s affidavit cannot be read to support the inference that decedent was so insane that he did not understand that hanging himself would result in death. Indeed, such a contention would be inconsistent with plaintiffs’ claim that decedent was bent on self-destruction. The sole matter at issue is whether an irresistible impulse is sufficient to negate suicidal intent. | [
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Holbrook, Jr., P.J.
This is yet another case arising from the Diamond Mortgage Corporation/ A.J. Obie & Associates mortgage-backed securities fraud. Defendants appeal as of right an order of the Macomb Circuit Court granting plaintiff summary disposition pursuant to MCR 2.116(0(10) after declaring the note and mortgage executed by plaintiff "null and void for lack of consideration.” We affirm, albeit for a different reason.
FACTUAL BACKGROUND
In contemplation of a loan, on June 11, 1986, plaintiff executed a promissory note in the amount of $44,000, payable to Diamond Mortgage, along with a mortgage on residential property in St. Clair Shores, Michigan, to secure the note. Plaintiff thereafter thought better of the transaction and on June 16, 1986, called Diamond Mortgage and canceled the transaction. While plaintiff’s cancellation was within the three-day rescission period prescribed by the federal Truth in Lending Act (tila), 15 USC 1601 et seq., it was not in writing as required by Regulation z, 12 CFR 226.1 et seq. Nonetheless, Diamond Mortgage apparently honored the cancellation because funds were never distributed to plaintiff and an internal company memorandum was circulated indicating the transaction had been canceled.
Notwithstanding this apparent acceptance of plaintiff’s cancellation, Diamond Mortgage recorded the mortgage at 8:38 a.m. on June 26, 1986, and assigned the note and mortgage that same day to defendants in exchange for $44,000. The assignment was thereafter recorded.
On May 11, 1988, plaintiff’s father, who resided at the mortgaged premises, discovered posted notice that defendants had commenced foreclosure proceedings. On May 26, 1988, plaintiff commenced the instant action. On May 31, 1988, the trial court issued a preliminary injunction, stopping the scheduled June 3, 1988, foreclosure sale. Plaintiff filed a motion for summary disposition, based primarily on tila grounds, on November 30, 1988. Summary disposition was granted to plaintiff on June 22, 1989, the trial court finding the mortgage and promissory note "null and void for lack of consideration.”
On appeal, defendants contend that the trial court overlooked their alleged status as holders in due course and therefore erred in declaring the assigned note and mortgage void. Plaintiff argues in a most compelling manner that the decision of the lower court is sustainable on the ground that he still had the right to rescind under the tila.
discussion
Although the issue whether plaintiff’s right of rescission was still viable under the tila was not addressed by the trial court and would therefore normally not be reviewed in this Court, there are instances where we will affirm a trial court’s decision where the right result was reached, albeit for the wrong reason. Thorin v Bloomfield Hills School Dist, 179 Mich App 1, 6; 445 NW2d 448 (1989). We believe this to be one of those instances.
The tila was adopted by Congress to "avoid the uninformed use of credit.” Mourning v Family Publications Service, Inc, 411 US 356, 377; 93 S Ct 1652; 36 L Ed 2d 318 (1973) (quoting 15 USC 1601). To effectuate the statute’s remedial purpose, it is to be liberally construed in favor of the consumer. Cody v Community Loan Corp of Richmond Co, 606 F2d 499 (CA 5, 1979), reh den 608 F2d 1373 (1979), cert den 466 US 988 (1980).
Section 125(a) of the tila, 15 USC 1635(a), provides that in a credit transaction in which a security interest in a consumer’s residence is retained
the [consumer] shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later.
Under Regulation z of the Federal Reserve Board, consummation "means the time that a consumer becomes contractually obligated on a credit transaction.” 12 CFR 226.2(a)(13). When a consumer "becomes contractually obligated” is to be determined by reference to state law. See 12 CFR Pt 226, Supp 1 (Official Staff Interpretations), Commentary 2(a)(13).
In Michigan, the essential elements of a valid contract are (1) parties competent to contract, (2) a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation. Detroit Trust Co v Struggles, 289 Mich 595; 286 NW 844 (1939). Mere discussions and negotiations cannot be a substitute for the formal requirements of a contract. Kirchhoff v Morris, 282 Mich 90, 95; 275 NW 778 (1937). It is a fundamental principle of contract law that a promise to pay is not binding if made without consideration. Matson v State Farm Mutual Automobile Ins Co, 65 Mich App 713, 715; 238 NW2d 380 (1975).
In the present case, on June 11, 1986, plaintiff executed a series of documents in anticipation of receiving the proceeds of a $44,000 loan from Diamond Mortgage. Among these documents were the promissory note and a mortgage granting Diamond Mortgage a security interest in certain residential property. The note recites plaintiff’s promise to pay "in return for a loan I have received.” It is undisputed that funds were never distributed to plaintiff by Diamond Mortgage. Therefore, because funds were never distributed to plaintiff, he cannot be said to have been contractually obligated as a result of a credit transaction, and, thus, under Michigan law, consummation cannot be said to have occurred.
The effect of this, then, is that plaintiff’s right to rescind the transaction remains effective under the tila, subject to the statute of limitations. Rudisell v Fifth Third Bank, 622 F2d 243, 247 (CA 6, 1980). We find that plaintiff’s filing of the instant action on May 26, 1988, effectively rescinded the transaction within the period of limitation. Had plaintiff been savvy enough to retrieve the note upon his first attempt at rescission, this entire action could have been avoided, because there would have been no note for Diamond Mortgage to fraudulently sell.
We also hold that the tila’s rescission remedy preempts the holder in due course doctrine. To allow defendants to assert their status as holders in due course "would gut 15 USC 1641(c).” Stone v Mehlberg, 728 F Supp 1341, 1348 (WD Mich, 1989). As noted in Stone, "Congress added this provision to tila in 1980 'to eliminate ambiguity on the question of assignee liability for rescission by stating explicity [sic] that a consumer’s exercise of this right is effective against an assignee.’ [S Rep No 96-368, 96th Cong (2d Sess) 32-33, reprinted in 1980 US Code Cong & Admin News 236, 268.]” Id. We presume that had Congress intended that rescission rights were not to be effective against assignees who were holders in due course, it would have said so.
Therefore, because the holder in due course doctrine is not a defense against tila rescission, the defendants’ argument that summary disposition was improper given the genuine issue of material fact vis-á-vis their status as holders in due course is without merit. Summary disposition was correctly granted, albeit for reasons different than those stated by the trial court.
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Michael J. Kelly, P.J.
Defendant Nancy Duncan appeals as of right from circuit court orders denying her motion for summary disposition and granting summary disposition for Betty Duncan. We reverse.
Plaintiff brought this action seeking a declaratory judgment to determine the beneficiary of Norman Duncan’s pension benefits. Norman and Betty Duncan were divorced on February 27,. 1979. At the time of the divorce, Norman was a City of Berkley police officer and an active member of the department’s pension plan. Pursuant to the property settlement portion of the judgment of divorce, each party was awarded respective pensions free and clear of any interest of the other party. The following proviso' was added:
Provided, however, that the plaintiff, Betty Duncan, be and she is hereby awarded full rights to remain as beneficiary on the pension plan or retirement plan of the defendant, Norman Duncan.
No steps were taken to implement this ambiguous proviso. Norman took no steps to designate Betty as his beneficiary and Betty did not serve a copy of the judgment on the pension trustee. The intent of the parties is not discernible from this record, but we find it to be unnecessary to disposition because interpretation of a statute mandates reversal.
On May 20, 1982, Norman and Nancy Duncan were married and remained married until Norman’s death on December 20, 1987. On February 19, 1985, Norman designated Nancy as the beneficiary of his pension plan. He retired on September 4, 1985. After Norman’s death, Nancy received benefits as the beneficiary of Norman’s pension. Nancy received $1,282.57 per month (sixty percent) of the deceased retiree’s benefits. On March 8, 1988, Betty requested benefits in accordance with the February 27, 1979, judgment of divorce. Because Betty could have qualified as a survivor beneficiary only under the pension’s fifty percent formula, her dollar entitlement would have been less. No determination of that amount was made at the trial level. Facing competing claims for benefits, plaintiff initiated the instant action for declaratory relief._
The issue presented is whether the naming of Betty as the pension beneficiary under the judgment of divorce supersedes Norman’s subsequent designation of Nancy as the pension beneficiary. At the time of the divorce, city police pensions were exempt from any legal process. MCL 38.559(6); MSA 5.3375(9X6). This insulated such a pension from process in a divorce proceeding. See Public School Employees’ Retirement Bd v Wexford Circuit Judge, 39 Mich App 568; 197 NW2d 854 (1972). Although MCL 38.559; MSA 5.3375(9) was subsequently amended to allow pensions to be distributed as marital assets, the amendment only applies to judgments of divorce awarded on or after June 13, 1985. Sommerville v Sommerville, 164 Mich App 681, 688; 417 NW2d 574 (1987). It is correct, as Betty urges, that in 1979 courts could take pension benefits into account when disposing of marital assets. See Lindner v Lindner, 137 Mich App 569; 358 NW2d 376 (1984). However, the pension funds themselves were not subject to the court’s process. Id., p 572.
On these facts, we hold that the divorce court’s declaration in the February 27, 1979, judgment that Betty "remain” as the pension beneficiary was either precatory or fails as an attempted exercise of the court’s process on the funds themselves. For purposes of this decision we must assume that the divorce court’s intent was more than just to designate Betty as an interim beneficiary until Norman’s marital status changed or until an effective written designation was implemented. We decide the issue construing the facts most favorably to Betty. We hold that the declaration in the February 27, 1979, judgment that Betty "remain” as the pension beneficiary was an attempted exercise of the court’s process on the funds themselves, an exercise in excess of its jurisdiction.
MCL 38.559(6); MSA 5.3375(9)(6) specifically provided that a beneficiary’s rights under the act would not be subject to process of law. Therefore, the court granting the divorce judgment was without authority to order the appointment of Betty as beneficiary or to later have it enforced against Norman’s designated beneficiary. Although the law has changed, as mentioned above, it is of no consequence to judgments of divorce awarded before June 13, 1985. Accordingly, the divorce decree’s naming of Betty as the pension beneficiary cannot be given legal effect.
Reversed and remanded for entry of summary disposition in favor of defendant Nancy Duncan. Plaintiff’s payment obligation is to be determined on remand.
Holbrook, Jr., J., concurred.
Whether Betty was to "remain” beneficiary until changed by Norman or by operation of law or by order of the court is not specified.
To the extent that Judge Shepherd sees a mutual agreement by the parties, a "bargain,” we think the conduct of the parties belies such a construction. A more plausible assumption would be that the divorcing husband had no existing compunction to designate a beneficiary. Betty, his first wife, was the plaintiff in the divorce action. She was not at any time a designated beneficiary, either before or after the divorce, according to plaintiff’s records. | [
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McDonald, P.J.
Defendant appeals as of right from his conviction, following bench trial, of first-degree felony murder, MCL 750.316; MSA 28.548, and possession of a firearm while committing a felony, MCL 750.227b; MSA 28.424(2), claiming the trial court improperly convicted him of first-degree murder rather than second-degree murder; a denial of his right to the effective assistance of counsel; and a denial of his right to receive a fair trial where inadmissible identification testimony was introduced at trial. We reverse.
Defendant was charged with the murder of Renard Wilson. On September 24, 1986, Wilson and a witness, Sandy Parham, were at a gas station when an armed man accosted Wilson and demanded money. After a scuffle, Wilson surrendered his money. Before fleeing, the assailant took a few steps back and shot Wilson. Wilson died as a result of the gunshot wound. The dispositive issue at trial, as well as on appeal, involves the sufficiency of the identification evidence.
At trial defendant was identified as the assailant by two witnesses. Sandy Parham testified that shortly after the incident she viewed a corporeal lineup at which defendant was not present. Par-ham indicated that, although she could not be sure, one of the men resembled the assailant. Thereafter, Parham viewed a photographic lineup in which defendant’s photograph was included. Parham indicated defendant’s photograph looked like the assailant, revealing similar features, but that she still was not absolutely sure. Parham testified that she did not become sure defendant was the assailant until she saw him in person in court.
The prosecution also produced the identification testimony of Odell Inge. Inge testified that he was at the gas station visiting the station’s attendant when the shooting occurred and that, from the cashier’s booth, looking at an angle through two panes of glass, he saw defendant talking with Wilson near the gas pumps. Later he heard a shot and turned to see Wilson fall and defendant’s back as he ran from the area. Inge testified defendant was an acquaintance from his neighborhood whom he had seen earlier in the day with a gun in his possession. Because Inge saw defendant earlier in the day, he was certain the assailant was dressed in blue jeans, a black coat or shirt, and white tennis shoes, even though Parham’s description of the assailant indicated he was dressed in brown. Inge provided the police a description of the assailant that also included a facial scar. A man other than defendant fitting the description provided by Inge including the description of clothing, was arrested the next morning and took part in the corporeal lineup viewed by Parham. This man was noted by Parham as looking like the assailant. At trial, Inge admitted he was "dramatizing” at the preliminary examination when he testified he saw defendant pull a gun from his waist and shoot the victim. Inge conceded his testimony at the preliminary examination was based on how he imagined the shooting must have happened rather than what he actually saw happen. Inge never saw defendant with a gun on the evening of the shooting.
The parties stipulated to the introduction of a written statement made by Johnny Lorrison the night of the incident as well as the result of the two corporeal lineups viewed by Lorrison. Although not available for our review, it appears the stipulated materials indicated Lorrison witnessed the incident and he picked out a man other than defendant from a lineup which included defendant and yet another man from a lineup which did not include defendant.
Following the close of proofs, the trial court indicated the prosecution’s evidence revealed the commission of the charged offense, first-degree felony murder, rendering inapplicable the lesser included offenses. In the court’s view, the only issue to be determined was one of identification— whether the prosecution brought forward the man who actually committed the offense. After some deliberation and review of the testimony, the trial court ultimately concluded the prosecution pre sented sufficient identification evidence to link defendant to the commission of the crime and convict him of first-degree felony murder.
On appeal, defendant first claims the trial court erred in failing to consider lesser included offenses. We find no merit to this argument. The court clearly indicated the lesser included offenses were inapplicable where the prosecution’s proofs set forth the commission of the charged offense.
Defendant next claims the introduction of Par-ham’s identification testimony was improper and constituted error requiring reversal. We agree.
Following defendant’s original claim of ineffective assistance of counsel stemming from his trial counsel’s failure to file a pretrial motion to suppress the in-court identifications, we remanded to the trial court for an evidentiary hearing. During the course of this hearing, defendant indicated that prior to the instant trial another judge had ruled Parham’s identification testimony inadmissible. Further inquiry revealed defendant was charged with the same offenses in the prior proceeding. Defendant, represented by different counsel in the prior proceeding, was successful in moving for the suppression of Parham’s identification testimony. However, those proceedings were dismissed at the prosecution’s request when a witness failed to appear. Sometime thereafter, the prosecution refiled the same charges, which resulted in the instant convictions.
Generally, the decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v Watkins, 176 Mich App 428; 440 NW2d 36 (1989). Here, the trial court and both parties appear to agree that given the prior court order suppressing Parham’s identification testimony, its admission at trial was error. However, the parties do not agree what effect the error had on the proceedings.
The prosecution argues the harmless error rule applies and that in applying the rule the trial judge properly found the introduction of the improper testimony to be harmless. We agree the harmless error analysis is the proper standard with which to review the improper admission of the identification testimony, see People v Michael, 181 Mich App 236; 448 NW2d 786 (1989); People v Foreman (On Remand), 179 Mich App 678; 446 NW2d 534 (1989), but do not agree that the error was harmless. The harmless error analysis involves two inquiries: first, whether the error was so offensive to the maintenance of a sound judicial system that it never can be regarded as harmless and, second, whether the error was harmless beyond a reasonable doubt. People v Gilbert, 183 Mich App 741; 455 NW2d 731 (1990). We believe admission of Parham’s identification testimony was improper under both inquiries. First, allowing a prosecutor to avoid a trial court’s evidentiary ruling by dismissing the suit and refiling before another trial court will encourage judge shopping and is clearly offensive to the maintenance of a sound judicial system. Permitting such a practice not only denigrates the trust placed in the resolution of a dispute by a trial court, but also burdens the judicial system with the filing of excessive actions and all costs attendant thereto. Although in the instant case all parties claim ignorance of the prior ruling, excepting the trial judge who had no cause to suspect a prior action had been filed, we find such ignorance inexcusable. A simple review of the prior court file by defense counsel, who admittedly was aware that a previous action was instituted against defendant, would have uncovered the order suppressing Parham’s testimony. We find defense counsel’s failure to discover and review the prior court file unpardonable. Likewise, we do not find too onerous the expectation that the prosecution have access and notice of actions instituted by its office.
We therefore conclude that, under the first inquiry of the harmless error test, introduction of this previously suppressed testimony was so offensive as to be intolerable. Moreover, even were we to find differently under the first prong of the test, we still would reject application of the rule under the second prong because we cannot say the error was harmless beyond a reasonable doubt. As the trial judge indicated at the close of proofs, the only real issue to be determined was identification. Although the trial judge now states that he does not "think” he would have reached a different result absent Parham’s identification testimony, we do not believe it can be said beyond a reasonable doubt that the improper testimony did not affect the verdict. Although stating that it was minimal, the trial judge admits that "there’s no question that [he] placed some weight on the identification of the young lady.” In ruling on defendant’s motion for a new trial, the judge stated, "I wrestled with this, I don’t think it would have made any difference, I don’t think it would have made any difference.”
We do not "think” that this finding is sufficient to support the conclusion that the error was harmless beyond a reasonable doubt. This is especially true where our review of the trial judge’s original findings of fact in support of defendant’s conviction reveals several references to Parham’s identification of defendant.
Although our resolution of the prior issue mandates reversal of defendant’s convictions, we will briefly address defendant’s remaining claim that he was denied the effective assistance of counsel.
As previously noted, defense counsel was aware that prior proceedings arising out of the same conduct had been instituted against defendant. Although counsel knew the prior action had been dismissed, she found no order of dismissal or other record of the prior case in the court file. Nonetheless, counsel failed to investigate further, proceeding on the instant action without knowledge of what occurred in the prior action. We do not believe an attorney of ordinary training and skill in the criminal law would have so acted. We have already concluded the introduction of the identification testimony was not harmless error and thus conclude defendant was prejudiced by counsel’s failure to acquaint herself with the prior history and the court order suppressing the testimony. Thus, under the standard set forth either in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), or Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), we find defendant was denied his right to the effective assistance of counsel. People v Wilson, 180 Mich App 12; 446 NW2d 571 (1989).
Because we believe the trial judge on remand would have substantial -difficulty putting out of his mind his previously expressed views and findings, and to preserve the appearance of justice, retrial should be had before a different judge. People v Evans, 156 Mich App 68; 401 NW2d 312 (1986).
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Holbrook, Jr., P.J.
Defendant appeals as of right from an order of the Wayne Circuit Court denying its motion for a directed verdict on plaintiffs attractive nuisance claim. We reverse.
On March 22, 1981, seven boys between the ages of thirteen and fifteen were walking along the right of way of defendant’s elevated railroad track on the northeast side of Detroit. The boys were residents of the neighborhood surrounding the tracks and were accustomed to playing on and crossing the tracks almost on a daily basis. On this particular day, the boys had walked up to the tracks via a railroad overpass near Seven Mile Road and John R. The pathway onto defendant’s right of way was not marked or obstructed by any signs, fences, or other barriers or warnings.
Four boys were in front of plaintiff, simultaneously playing and walking south "goofing around,” as they described it, and casually throwing rocks at a nearby junkyard, at poles and signs in the area, and at defendant’s slow-moving northbound freight train. Plaintiff and two other boys accompanying him were not throwing rocks because they were hurrying to catch up with the other boys.
Plaintiff and his two companions were walking along the westernmost edge of the tracks between the passing train and the junkyard. Just after the train passed, shots rang out. Plaintiff and Marvin Lowe, who was walking next to plaintiff, saw flashes of a gun firing from the train. Lowe testified that he saw bullets hit and ricochet near them in the middle of the tracks. As the boys began to run for cover, they heard plaintiff yell that he was shot.
Plaintiff had turned to his right, trying to run down the embankment toward the junkyard when he felt the bullet strike him in the lower-right part of his back. The bullet traveled upwards about an inch and a half, severing his spinal cord at the eleventh vertebrae and causing him to drop to the embankment with his head pointed toward the junkyard. He was rendered a permanent paraplegic. The bullets were fired from the direction of defendant’s train by a person who has never been positively identified.
On March 15, 1989, defendant moved for a directed verdict on two of plaintiff’s theories of liability: respondeat superior and attractive nuisance. The trial court granted the motion regarding the theory of respondeat superior, but denied the motion regarding the attractive nuisance theory. The jury was eventually instructed, over defendant’s continuing objection, on the attractive nuisance theory. After deliberations, the jury returned a verdict of $825,000, which was reduced to $550,000 on the basis of 3316 percent comparative negligence.
The sole issue in this appeal is whether the trial court erred in not directing a verdict in defendant’s favor with respect to the issue of defendant’s alleged duty to protect a child trespasser, attracted to defendant’s land, from the criminal acts of an unknown third party.
Plaintiff’s claim is based on the attractive nuisance doctrine, the widely recognized rule regulating the duties of landowners to trespassing children. The interaction between the doctrine of at tractive nuisance and Michigan case law which holds that landowners are not responsible for the criminal acts of third parties is a case of first impression for this Court. Although the decision in Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), is not directly on point and therefore not controlling in this case, we are not persuaded by plaintiff’s argument that the underlying logic of Williams is not applicable to a case involving an attractive nuisance.
In Williams, the plaintiff, a customer in the defendant’s store, was shot during an attempted robbery. Our Supreme Court held, as a matter of law, that a merchant’s duty of reasonable care owed to its invitees does not extend to protecting them from the criminal acts of third parties. Id., p 504. To impose such a duty, the Court said, would be against public policy.
The inability of government and law enforcement officials to prevent criminal attacks does not justify transferring the responsibility to a business owner such as defendant. To shift the duty of police protection from the government to the private sector would amount to advocating that members of the public resort to self-help. Such a proposition contravenes public policy. [Id., pp 503-504.]
We believe that Williams is a policy decision applicable to all property relationships, be they involving business or social invitees, licensees, or child trespassers. We cannot hold that an owner of land, such as the defendant, has a duty to protect all people using its land, be they invitees, licensees, or trespassers, from the criminal acts of third parties. To do so would place upon the landowner a greater burden than that which is placed upon the community for the protection of its members. As long as the landowner does not actively create or maintain the criminal activity or fail to act reasonably to end criminal activity which takes place in its presence, there should be no liability for injuries that result from the criminal acts of those third parties.
We find this logic especially compelling in a trespass situation, be the trespasser an adult or child. Unlike a business invitee, a trespasser does not give any financial benefit to the owner of the land. Thus, if in a merchant business-invitee situation, as was the case in Williams, the shifting of the burden of a financial loss caused by crime from one innocent victim to another is improper, it would be even more improper to do so in a landowner-trespasser situation.
We therefore hold that defendant should not be held liable under the attractive nuisance doctrine for injuries resulting to plaintiff, a child trespasser, as a result of the criminal acts of a third person whom defendant could not and did not control. We therefore vacate the verdict of the jury and remand for entry of a directed verdict in defendant’s favor.
Reversed and remanded. We do not retain further jurisdiction.
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Marilyn Kelly, P.J.
This is a defamation case in which a jury found liability against defendant, Lansing State Journal, and awarded damages to plaintiff, Michigan Microtech, Inc.
Defendant appeals as of right, claiming plaintiff failed to prove its newspaper article was defamatory. It alleges plaintiff was obliged and failed to show either actual malice or malpractice. Defen dant claims that the trial court erred by refusing to direct a verdict in its favor and in refusing to give the jury its instructions on ordinary negligence. Defendant raises issues, also, as to whether plaintiff proved its damages and whether the court admitted evidence of damages without foundation. Defendant claims the court erred in instructing the jury regarding damages to reputation and for lost profits and good will. We affirm.
On January 18, 1986, defendant published an article describing how the scrambling of satellite signals was having an adverse effect on the sale of satellite dishes. In preparation for the article, defendant’s news reporter William Sinnott conducted a telephone survey of local satellite dish dealers to determine if scrambling injured their business.
Sinnott telephoned plaintiff’s Lansing area store in Mason. A woman answered with plaintiff’s name. When questioned, she told Sinnott that Michigan Microtech was discontinuing the sale of satellite dishes because of "headaches” and poor profits due to scrambling. According to her, Micro-tech would simply continue to provide service for the dishes they had sold.
The woman refused to identify herself, saying, "You know why.” Sinnott testified that he was unsure what she meant, but that it was not unusual for people to refuse to identify themselves when answering telephone surveys. In the belief that his standards of identification, credibility, and hostility had been met, he included the information in his article without further verification. Sinnott testified that he did not follow the Washington Post Standards and Ethics for publishing without attribution, because he used them only when the source needed to be protected.
Michigan Microtech claimed to be the oldest and largest satellite antenna service in Michigan. In anticipation of scrambling, it had obtained a supply of descramblers and had developed an advertising campaign to market them. It had no plans to discontinue selling satellite dishes. Plaintiffs vice president, Bernard Schafer, testified that he investigated and could identify no Mason store employee who had spoken with Sinnott. Defendant published a correction six days later and a followup article several weeks later, quoting Schafer regarding the scrambling issue.
At the close of trial, the jury awarded $54,258 to plaintiff as damages for lost profits.
On appeal, defendant first contends that the court erred in denying its motion for summary disposition. It claims there was no defamation as a matter of law, because a corporation’s reputation can be defamed only by aspersions about its honesty, credit, efficiency or other business character.
In order to establish liability for defamation, a plaintiff must prove: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Rouch v Enquirer & News of Battle Creek, 427 Mich 157, 173-174; 398 NW2d 245 (1986).
A defamatory publication tends to harm the reputation of another by lowering that person’s estimation within the community or by deterring third persons from associating or dealing with him. Nuyen v Slater, 372 Mich 654, 662; 127 NW2d 369 (1964); Heritage Optical Center, Inc v Levine, 137 Mich App 793, 797; 359 NW2d 210 (1984). A corporation does not have a reputation in a personal sense; however, it does have a business reputation that can be defamed.
This Court has recognized that an action exists for defamation of a corporation, as described in 3 Restatement Torts, 2d, § 561, p 159:
One who publishes defamatory matter concerning a corporation is subject to liability to it
(a) if the corporation is one for profit, and the matter tends to prejudice it in the conduct of its business or to deter others from dealing with it, or
(b) if, although not for profit, it depends upon financial support from the public, and the matter tends to interfere with its activities by prejudicing it in public estimation. [Heritage Optical, 797-798.]
The defendant in Heritage Optical telephoned the plaintiffs clients and told them that the plaintiff had closed or moved its office and was unable to furnish goods and services. This Court found defamation, because the statement adversely affected the plaintiffs business reputation and its ability to conduct business.
The statement complained of in this case, that plaintiff had discontinued selling satellite dishes, is similar to the statement in Heritage Optical. It had the potential of adversely affecting Micro-tech’s business reputation and its ability to sell satellite dishes. Defendant argues that Heritage Optical is distinguishable, because there the defendant intended to harm the plaintiff. However, intent is not an element of defamation. The trial court did not err in denying defendant’s motion.
Next, defendant argues that plaintiff failed to prove actual malice, because Microtech was a limited-purpose public figure, and the statements did not warn of any defamatory potential. Defendant points out that the record does not support a finding of actual malice.
The Michigan Supreme Court reexamined Michigan’s libel law in light of the United States Supreme Court’s decision in Gertz v Robert Welch, Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974). It ruled that, in the absence of malice, a publication about a public official or public figure is constitutionally privileged from liability for defamation. Rouch, 200. Where the publication involves a private figure, the privilege does not exist, and the negligence standard of Gertz applies. Rouch, 202. In addition to proving that the defendant was negligent, the private plaintiff must prove that the objectionable statement was false. Rouch does not discuss whether the statement must warn of its defamatory potential.
The Virginia Supreme Court has relied on the Gertz opinion. It held that an actual-malice standard applies if the statement itself does not make it apparent that it presents a substantial danger to reputation. The trial court must determine whether a reasonable and prudent editor should have anticipated that the statement contained an imputation necessarily harmful to reputation. Gazette, Inc v Harris, 229 Va 1, 22-23; 325 SE2d 713 (1985), cert den sub nom Fleming v Moore, 472 US 1032 (1985), sub nom Port Packet Corp v Lewis, 473 US 905 (1985).
Defendant urges us to adopt the Virginia rule. We decline to address this issue, since here the defamatory potential of the statement was obvious. The article indicates that the sale of satellite dishes was plaintiff’s main business. Thus, clearly, the statement that plaintiff planned to no longer sell dishes could substantially damage its sales reputation and deter third parties from dealing with it.
Defendant also argues that plaintiff is a limited-purpose public figure.
A private person becomes a limited-purpose public figure when he voluntarily injects himself or is drawn into a particular public controversy and assumes a special prominence in its resolution. However, a private individual is not automatically transformed into a limited-purpose public figure merely by becoming involved in or associated with a matter that attracts public attention. The court must look to the nature and extent of the individual’s participation in the controversy. Hodgins v Times Herald Co, 169 Mich App 245, 256-257; 425 NW2d 522 (1988).
Defendant asserts that plaintiff assumed a role of special prominence in the scrambling issue through its political involvement and its marketing strategy and advertising of descramblers. Plaintiff advertised that it sold descramblers. One of its employees took part in a trade organization that lobbied for legislation to place a two-year moratorium on scrambling. However, this level of activity is minimal when compared with the activity involved in the cases cited by defendant. > See National Foundation for Cancer Research, Inc v Council of Better Business Bureaus, Inc, 705 F2d 98 (CA 4, 1983), cert den 464 US 830 (1983); Steaks Unlimited, Inc v Deaner, 623 F2d 264 (CA 3, 1980); Foodscience Corp v McGraw-Hill, Inc, 592 F Supp 362 (D Vt, 1984).
Microtech did not thrust itself into the issue. It was contacted at random by defendant. The evidence does not support a finding that it was a limited-purpose public figure. Therefore, proof of actual malice was not required.
Next, defendant contends that plaintiff should have been required to prove professional negligence or malpractice. It argues that Michigan’s malpractice statute applies to nonlicensed professionals, such as newspaper reporters.
The malpractice statute provides that anyone who professes membership in a state-licensed profession is bound by the common law applicable to malpractice actions against licensed members of that profession. MCL 600.2912; MSA 27A.2912. Nowhere does the statute mandate a professional negligence standard of care for journalists, a profession not even licensed by the state. Moreover, the Legislature did not intend that every member of a state-licensed profession necessarily be subject to malpractice. Dennis v Robbins Funeral Home, 428 Mich 698, 704; 411 NW2d 156 (1987).
In two of the cases cited by defendant, the standard of care is that of a "reasonably careful publisher” or "ordinarily prudent person engaged in the same kind of business.” Gobin v Globe Publishing Co, 216 Kan 223, 233; 531 P2d 76 (1975); Martin v Griffin Television Co, Inc, 549 P2d 85, 92 (Okla, 1976). The standard used in this case was that of a "reasonably careful journalist.” We find no error. The Michigan malpractice statute does not apply to newspaper reporters.
Defendant argues that the trial court erred in denying its motion for a directed verdict and judgment notwithstanding the verdict. It claims there was no negligence, because the statement did not hint of defamatory potential.
When deciding a motion for a directed verdict or judgment notwithstanding the verdict, the trial court must review the testimony in the light most favorable to the nonmoving party. Lester N Turner, PC v Eyde, 182 Mich App 396, 398; 451 NW2d 644 (1990). A judgment notwithstanding the verdict is proper where insufficient evidence is presented to create an issue for the jury. It is improper where reasonable minds could differ on issues of fact. We will not disturb the trial court’s decision, unless there has been a clear abuse of discretion. Wilson v General Motors Corp, 183 Mich App 21, 36; 454 NW2d 405 (1990).
In this case, there was sufficient evidence of defendant’s negligence for the case to go to the jury. Sinnott did not inquire further or seek corroboration when the woman he interviewed refused to identify herself. He acknowledged that the Washington Post Standards and Ethics stated that before any information is accepted without full attribution the reporter must (1) make every reasonable effort to get it on the record, (2) seek the information elsewhere, or (3) request and publish the reason for restricting the source’s identity. Defendant’s editor did not have specific guidelines for her reporters to use when conducting telephone surveys. She acknowledged that there could be instances in which further corroboration is necessary, as where sources refuse to identify themselves.
Defendant also argues that a new trial was necessary, because the trial court instructed the jurors that expert testimony was not required to establish defendant’s negligence. It argues that this was an unfair comment on the weight of the evidence. The instruction was prompted by the defendant’s closing argument, during which counsel pointed out that plaintiff had failed to offer an expert in the area of journalism standards. We find no error requiring reversal. MCR 2.613(A); Callesen v Grand Trunk W R Co, 175 Mich App 252, 263; 437 NW2d 372 (1989).
Defendant asserts that plaintiff failed to prove damages. It contends that proof of damage to reputation is required and was not shown.
Presumed damages are recoverable where malice is shown. Otherwise, actual damages must be proven. Gertz, 349. Special damages, a part of actual damages, are losses having economic or pecuniary value. Smolla, Defamation, §§ 7.02[1], 9.06[1], pp 7-2, 7-3, 9-10.
Plaintiff presented testimony that sales slumped after publication of the objectionable article. Proofs showed the dollar value of plaintiffs lost sales. Defamation of a corporation results in lack of association by third parties. Thus, plaintiff’s proofs showed damage to reputation at the same time they established dollar loss.
As to the sufficiency of proofs, plaintiff did not produce the names of individuals who were deterred from buying satellite dishes because of the article. Rather, it relied on a comparison of sales before and after the article appeared. This has been held to be competent evidence of lost profits. See Poleski v Polish American Publishing Co, 254 Mich 15, 19-20; 235 NW 841 (1931); Couch v Mining Journal Co, 130 Mich 294, 297; 89 NW 936 (1902); McDuff v Detroit Evening Journal Co, 84 Mich 1, 5; 47 NW 671 (1890); Weiss v Whittemore, 28 Mich 366, 373-374 (1873). It would be an unreasonable burden to mandate that plaintiff produce the names of people who did not contact it because of the article. That would force plaintiff to resort to far-fetched methods of discovery, such as contacting numerous competitors, many of whom might be reluctant to divulge the names of their customers.
The proofs which plaintiff provided in this case were sufficient to establish a loss of profits. Reasonable minds could deduce from them that plaintiff suffered the loss claimed. The trial court did not abuse its discretion by denying defendant’s motions for a directed verdict and judgment notwithstanding the verdict.
Defendant maintains that it was denied a fair trial because of the admission of certain evidence. The decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Kochoian v Allstate Ins Co, 168 Mich App 1, 12; 423 NW2d 913 (1988).
Defendant claims that the admission of a list of people who called to inquire if defendant’s article was accurate was hearsay. In the normal course of business, plaintiff kept a log of incoming calls. Thus the list could be considered a business record. MRE 803(6). Even if it were not and the admission were error, it was harmless error, since defendant discredited the evidence.
Plaintiff presented evidence through Schafer comparing the sales levels in its Lansing and Mt. Pleasant stores before and after publication of the article. Defendant claims that only an expert can compare market areas. It cites no authority for the proposition. We find that the jury properly could be asked to assess the difference in sales. Moreover, the court did not abuse its discretion in admitting evidence regarding actual lost profits based on the change in sales levels and the accountant’s testimony relying on those figures. Plaintiff had operated for several years in Mt. Pleasant and for over a year in Lansing. An adequate sales record existed. We find no error.
Schafer gave testimony regarding his competitors’ opportunity to use the article against Micro-tech. It was founded on his personal experience and supported plaintiff’s evidence of lost profits. Also, Robert Peltier gave testimony regarding the impact of the article on Michigan Microtech. This was an opinion based on the perception of the witness. MRE 701. Peltier managed the same type of business as plaintiff in the same area. Peltier’s testimony regarding his salesperson’s conduct was not hearsay but rather a description of an event of which he had personal knowledge. Finally, the qualification of Henry Block as an expert was not an abuse of discretion. He had been marketing satellite dishes since the early 1980s and had college training in business administration.
Lastly, defendant argues that the court made several errors in its instructions regarding damages. Defendant claims the court failed to instruct that damage to reputation must be shown as a prerequisite to other damages. However, as discussed previously, loss of reputation and loss of profits are intertwined. The loss of both is shown by a diminished number of customers. The necessity of making these findings was adequately covered by the special verdict form.
Defendant asserts that the court should have instructed that lost profits must be demonstrated with reasonable certainty. The court instructed the jurors that damages must be based on the evidence and not on speculation, guess or conjecture. This instruction was in accordance with SJI2d 50.01 and was adequate. Ritchie v Michigan Consolidated Gas Co, 163 Mich App 358, 371; 413 NW2d 796 (1987).
Finally, the error, if any, regarding the alleged separation of good will and reputation was harmless. The jury awarded plaintiff the exact amount it claimed for lost profits and apparently did not make a separate award for either loss of good will or loss of reputation.
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Per Curiam.
Plaintiffs Carl and Marcella Nelson appeal from a June 29, 1989, circuit court order finding the court had no jurisdiction to entertain their request for enforcement of an earlier order entered by stipulation of the parties providing them, as paternal grandparents, visitation with a minor, Shane Kendrick. We affirm.
This appeal raises the question whether grandparent visitation may be ordered by a circuit court pursuant to MCL 722.27b; MSA 25.312(7b) during the pendency of a paternity action. We agree with the circuit court and conclude that it may not.
In 1984, Stephen Nelson and his parents, Carl and Marcella Nelson, filed a complaint in the circuit court against defendant Theresa Kendrick to determine Stephen Nelson’s paternity of the minor and to establish child support and grandpar ent visitation rights. On January 18, 1985, the court entered a stipulated order signed by the parties establishing paternity, visitation, and support and allowing the grandparents visitation rights. In March 1989, Carl and Marcella Nelson sought enforcement of the visitation order. Following a hearing on their motion to show cause, the trial court dismissed the Nelsons’ petition, finding the court did not have jurisdiction over the issue of grandparent visitation at the time it entered the original order. Thus, the court concluded, inasmuch as it addressed grandparent visitation rights, the original order was void for lack of jurisdiction. On appeal, the grandparents claim the court erred in concluding it lacked jurisdiction to order grandparent visitation. We disagree.
Grandparent visitation rights are expressly created by statute as part of the Child Custody Act, MCL 722.27b; MSA 25.312(7b). The statute states in pertinent part:
(1) Except as provided in this subsection, a grandparent of the child may seek an order for visitation in the manner set forth in this section only if a child custody dispute with respect to that child is pending before the court. If a natural parent of an unmarried child is deceased, a parent of the deceased person may commence an action for visitation.
Thus a grandparent may seek an order for visitation from a circuit court only where either a child custody dispute is pending before the court or the grandparents’ child is a natural parent of the minor and is deceased. The second alternative clearly being inapplicable to the instant facts, we must determine whether Stephen Nelson’s complaint for determination of paternity constitutes a "child custody dispute” within the meaning of the section of the act authorizing grandparent visitation rights. This determination need not be made in a vacuum, however, as the statute provides a clear definition of the term "child custody dispute” as used in the pertinent section of the act. Section 7b(2) states:
As used in this section, "child custody dispute” includes a proceeding in which any of the following occurs:
(a) The marriage of the child’s parents is declared invalid or is dissolved by the court, or a court enters a decree of legal separation with regard to the marriage.
(b) Legal custody of the child is given to a party other than the child’s parent, or the child is placed outside of and does not reside in the home of a parent, excluding any child who has been placed for adoption with other than a stepparent, or whose adoption by other than a stepparent has been legally finalized. [Emphasis added.]
Stephen Nelson’s paternity action is clearly not one of the proceedings included in the definition.
When used in a statute, the word "include” may be construed as a word of enlargement or limitation and is not in and of itself determinative of how it is intended to be used. Belanger v Warren Consolidated School Dist, Bd of Ed, 432 Mich 575, 587, n 25; 443 NW2d 372 (1989). Here, a review of the entire Child Custody Act leads us to believe the term "include” in § 7b(2) was meant to be a term of limitation. The phrase "child custody dispute” or variations thereof is located in each section of the act and appears to apply to any number of situations or actions wherein the placement of a child must be determined. The term or phrase is not accorded a definition other than its normal usage in any section of the act other than § 7b. Thus, because the term is broad and is not defined in other sections, its specific definition in the instant section must be interpreted as a limitation on its broad general usage.
As Stephen Nelson’s action to determine paternity did not constitute a child custody dispute as defined by § 7b, the section authorizing grandparent visitation, we find no error in the trial court’s determination that it had no jurisdiction to entertain plaintiffs’ claim for such visitation rights.
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Michael J. Kelly, P.J.
These consolidated appeals involve the application of 1985 PA 103, which, effective July 30, 1985, reduced from 104 to 52 the number of weeks of employer liability for disability benefits paid to a vocationally handicapped employee.
MCL 418.921; MSA 17.237(921) states, in part, that a person certified as vocationally handicapped shall be compensated for a personal injury arising out of and in the course of employment and resulting in death or disability. However, § 921 also limits the period of employer liability. The statute was amended by 1985 PA 103 to reduce the period of liability from 104 to 52 weeks. The amendment was made immediately effective July 30, 1985.
The plaintiffs in these cases were hired by their respective employers and became certified as vocationally handicapped before the July 30, 1985, amendment of § 921. Plaintiff Szymczak became disabled because of a work-related injury which occurred on July 14, 1984, while plaintiff Pelaez’s disabling injury occurred on January 31, 1986. The magistrate in each case awarded benefits, but determined that the employers were to be reimbursed for payments exceeding the fifty-two week limit which were made after July 30, 1985. The Workers’ Compensation Appellate Commission affirmed in both cases, concluding that the magistrate’s application of the amendment was prospective and, therefore, proper. The Second Injury Fund appeals by leave granted, claiming that the commission improperly applied the amendment retroactively and that the amendment as applied violates the Contract Clause, US Const, art I, § 10; Const 1963, art 1, § 10.
The fund first asserts that the statute was in fact applied retroactively because it imposed a new obligation on the fund with respect to transactions and considerations already passed. An argument similar to this was asserted in Grogan v Manistique Papers, Inc, 154 Mich App 454; 397 NW2d 825 (1986). In that case the Second Injury Fund sought reimbursement from the plaintiff for benefits paid after the effective date of an amendment of MCL 418.531; MSA 17.237(531). The amended statute permitted the fund to obtain reimbursement from an injured employee’s third-party recovery. There, the plaintiff was injured prior to the amendment’s effective date, but secured a third-party settlement after the amendment became effective. It was the plaintiff’s position that any obligation placed on him to repay benefits would be a retroactive application of the statute because his injury occurred before the amendment became effective. This Court rejected the plaintiff’s position, noting that merely because some of the requisites for a statute’s application are drawn from the time antedating its passage does not mean the statute is operating retrospectively. Id., p 460, citing Franks v White Pine Copper Division, Copper Range Co, 422 Mich 636; 375 NW2d 715 (1985), and Hughes v Judges’ Retirement Bd, 407 Mich 75; 282 NW2d 116 (1979). The Grogan Court concluded that the fund’s right to reimbursement could be prospectively applied to recoveries occurring after the effective date of the amendment regardless of the date of injury.
In Franks, supra, pp 652-653, the Supreme Court held that while the application of the coordination of benefits provision, MCL 418.354; MSA 17.237(354), may involve an antecedent event, such as an injury occurring before the effective date of the amendatory act, the coordination of benefits as applied to payments for periods after the amendment date constituted a prospective application of the statute. See also Hughes, supra, p 86; Clark v Chrysler Corp, 377 Mich 140, 147-148; 139 NW2d 714 (1966).
Here, the application of § 921 may include some antecedent events, but the statute was applied only to disability payments accruing after July 30, 1985. The fund’s liability increased only after the effective date of the amendatory act. We therefore find that the amendment was not applied retroactively.
We next turn to the fund’s argument that the amendment as applied violates the Contract Clause, US Const, art I, § 10; Mich Const 1963, art 1, § 10. The fund asserts that any legislative amendment changing the fund’s responsibility for reimbursement is an unconstitutional infringement upon existing vésted rights. However, the Supreme Court has repeatedly held that benefits and liabilities arising out of the workers’ compensation statute do not create rights protected by the Contract Clause. Romein v General Motors Corp, 436 Mich 515, 533; 462 NW2d 555 (1990); Selk v Detroit Plastic Products, 419 Mich 1, 12; 345 NW2d 184 (1984); Lahti v Fosterling, 357 Mich 578; 99 NW2d 490 (1959).
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Per Curiam.
On January 17, 1989, following a bench trial in the Genesee Circuit Court, defendant was convicted of violating the cigarette tax act, MCL 205.501 et seq.; MSA 7.411(1) et seq., on three separate occasions. On March 7, 1989, defendant was sentenced to twenty-four months’ probation, with the last thirty days to be served in the county jail if he failed to comply with the terms and conditions of probation. Defendant appeals his conviction as of right. We affirm.
Defendant was charged with violating MCL 205.503(a); MSA 7.411(3)(a), which provides in part:
No person shall sell, purchase, possess or acquire cigarettes or act as . . . unclassified acquirer ... in this state, unless licensed to do so as herein provided.
Defendant was also charged with violating MCL 205.506; MSA 7.411(6), which provides in part:
Every . . . unclassified acquirer . . . shall keep a complete and accurate record of all cigarettes . . . purchased or otherwise acquired.
"Unclassified acquirer” is defined as "any person . . . who . . . acquires cigarettes for use, sale, or distribution from any source other than a wholesaler or a secondary wholesaler licensed under this act.” MCL 205.501(g); MSA 7.411(1)(g). When the wholesale price of the cigarettes involved amounts to or exceeds $50, a person found to have violated the act’s provisions is guilty of a felony punishable by five years’ imprisonment, or a $5,000 fine, or both. MCL 205.509(b); MSA 7.411(9)(b).
Testimony presented by the prosecution established that defendant paid for cigarettes which were offered for sale on three separate occasions by undercover officers who were investigating suspected violations of the act at stores in the Flint area. When officers entered the store on the first occasion and offered to sell the cigarettes to defendant’s fellow employee, that employee directed the officers to defendant. Defendant bargained with the officers before agreeing on a price of approximately $5 per carton, which was well below the average wholesale price of more than $10 per carton. According to the officers, defendant paid for the cigarettes with money from his wallet. The second occasion was similar. On the third occasion, defendant paid for the cigarettes with money from the cash register. Subsequently, a treasury agent purchased cigarettes which were determined to be those sold to defendant by the undercover officers. Other evidence established that neither defendant nor the undercover officers who sold defendant the cigarettes were licensed under the act, and that no records were kept of the sales.
Contrary to defendant’s arguments on appeal, there clearly was sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of violating the act’s provisions, or of aiding and abetting their violation, even though defendant did not own the store and was allegedly acting at the store owner’s direction. See People v Huey, 345 Mich 120, 127; 75 NW2d 893 (1956) (conspiracy to violate cigarette tax act); People v Petrella, 424 Mich 221, 268-269; 380 NW2d 11 (1985) (standard of review: sufficiency of evidence in bench trial, and denial of motion for directed verdict). We note that the act, § 3(a), states that "[n]o person shall . . . purchase ... or acquire,” and alternatively states "or act as . . . unclassified acquirer.” But even assuming that defendant had to be an "unclassified acquirer” to be found guilty of violating the act, that term is defined by the act, § 1(g), as "any person . . . who . . . acquires cigarettes for use, sale, or distribution.” The act, § 1(g), does not require that the cigarettes be acquired for defendant’s use, sale, or distribution. Thus, the ownership of the store is virtually irrelevant to the issue of defendant’s guilt or innocence. Finally, as did the trial court, we find defendant’s claim that he was ignorant of American business practices incredible in light of his college education as a management-business major.
Defendant’s claim of entrapment is untenable. Defendant’s own testimony showed that he was ready, willing, and able to purchase cigarettes from the undercover officers. See People v Patrick, 178 Mich App 152, 153-154; 443 NW2d 499 (1989). We conclude that the officers’ conduct did not go beyond "the mere offering of an opportunity to commit a crime.” Id.
Regarding defendant’s claim that the statute is unconstitutional, defendant waived the issue by failing to raise it in the trial court. Huey, supra, pp 129-130.
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Brennan, J.
Plaintiff appeals as of right from a November 14, 1989, order granting summary disposition pursuant to MCR 2.116(C)(10) for defendant. Plaintiff filed suit against defendant, her employer, alleging that, as a result of defendant’s intentional and wilful misconduct, she suffered the loss of the three middle fingers on her right hand while operating a circular saw at her place of employment. On appeal, plaintiff claims that the trial court erred in granting summary disposition for defendant on the ground that her claim did not fall under the intentional-tort exception to the exclusive-remedy provision of the Workers’ Disability Compensation Act. We agree and reverse.
The right to recover benefits under the wdca is the exclusive remedy of an employee against an employer for personal injury or occupational disease. MCL 418.131; MSA 17.237 (131). The exclusive-remedy provision does not apply, however, to claims arising from intentional torts. Pawlak v Redox Corp, 182 Mich App 758, 766-767; 453 NW2d 304 (1990). MCL 418.131(1); MSA 17.237(131)(1) provides in part:
An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended the injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.
The issue whether the facts alleged by plaintiff are sufficient to constitute an intentional tort is a question of law for the court, while the issue whether the facts are as plaintiff alleges is one of fact for the jury. McNees v Cedar Springs Stamping Co, 184 Mich App 101, 104; 457 NW2d 68 (1990).
In Pawlak, a panel of this Court found that the plaintiff failed to establish that the defendant employer acted deliberately or had actual knowledge that the decedent’s injuries were certain to occur where the decedent’s death was caused by the employee’s erratic driving and the decedent’s own action in riding on top of the truck. The Court reached this conclusion even though the employer allegedly had knowledge of erratic driving by employees.
In McNees, supra, another panel of this Court interpreted the intentional-tort exception to mean that a "plaintiff must be able to allege a specific danger known to the employer that is certain to result in an injury and that the employer required the plaintiff to work in the face of danger.” Id., p 105. The panel found that the plaintiff met this test by alleging "a knowledge by the employer of the defect in the machine that caused the accident that was not obvious to the employee, a request to the employer to correct the danger, an intentional refusal to make corrections, a history of consistent violations of the Michigan Occupational Safety and Health Act, several previous incidents that came close to injuring other employees as a result of the defect in question, orders to defendant [sic] to work on the machine with the defective foot pedal and intentional destruction of damaging evidence after the accident.” Id., pp 105-106.
In the present case, plaintiff alleged that defendant had actual knowledge that injury was certain to occur when it assigned her to the task of operating the machine in question, the pe-52. Plaintiff alleged that, in an attempt to shave casters to accommodate customer specifications, defen dant built a device consisting of a circular saw on a plywood table top. The casters were to be manually fed into the saw, where they would fall through a slot into a catch basket under the table. The worker was required to check the casters in the basket every thirty minutes. The affidavit of plaintiffs engineer alleges that defendant dangerously secured the saw to the table, removed the blade guard, taped the "on/off’ switch to the "on” position, failed to affix warnings on the pe-52, and failed to supply adequate instructions with regard to use of the saw.
Plaintiff alleged that she and other workers were not warned that there was no blade guard underneath the table and that one of the maintenance men who designed the machine reached for a caster and avoided injury only because his hand struck the side of the blade. The maintenance supervisor, Ralph DeVries, testified in his deposition that he knew the machine was taped to the "on” position, that the casters had to be checked, and that employees could do so by reaching under the table where the unguarded saw blade was turning. DeVries further testified in his deposition that he informed all three shift foremen that there was no blade guard underneath the table. DeVries stated that when a guard is taken away, someone is going to get hurt.
Assuming plaintiffs allegations are true, then defendant had actual knowledge that an injury was certain to occur and wilfully disregarded that knowledge. Whether the facts are as plaintiff alleges is a question for the jury to resolve. McNees, supra.
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[indorsement]
Sup Court i Cir. Aug. 1839
Brown vs. Moore
Mem0 of Opinion Aug. 1839 — Judg‘ reversed and venire de novo ordered—
Goodwin for Plffdn Error H N. Walker — Deft.
[opinion]
Joseph. W. Brown vs. Ezekiel J. Moore & Amasa Jackson
Writ of Error to Wayne Circuit.
The Bill of exceptions, forming a part of the record in this cause, sets forth the only ground, upon which error is now alleged—
The Plff in error was the Deft below, and was sued as the indorser of Fargo & Boughton on their promisory note dated 14 July ’37 for $1223.14 payable in 6 mo at the Bank of Tecumseh
To prove presentment for payment and refusal thereof at the Bank, and notice thereof to the Deft below as indorser — The plaintiff below offered in evidence an official certificate in due form of Geo. W. Jermain, a notary public of the County of Lenawee setting forth that on the day &c he duly presented the said note to the Bank for payment and that the same was refused 5 and that he caused notice of said protest to be put in the post office at Tecumseh, directed to the Deft &c— The attorney for the Deft below objected to the [admissibility to prove these facts — , but the objection was overruled, and the evidence received.
There was no other evidence to prove these facts — The only question therefore is whether the evidence was properly admitted?
It was contended by the counsel for the Defts in Error that by the provisions of our Statute relative to Notaries public have enlarged the authority of a Notary public, and that his official certificate is made competent evidence in other cases than those recognized by the Com. Law. The only provision relied on for this purpose is that which declares due faith shall be given to all the protestations, atiesta-, tions and other instruments of publication of notaries public—
(The Rev. Stat. is in other words — ack. of deed, adm. oaths, and perform such other official acts as have been customarily N. P.
. TTT, . \ A protest of an inland bill 6 Wheat. 146. Young vs. Bryan) r „ . . . . , TT 7 _ , & TT 7 (of ex. & pro. note is not id. 572 Union Bank vs. Hyde > • . „ . , ^ -kt , i -txt 11 Í necessary, nor is it evi8 id. 326. Nicholas vs. Webb 1 , 0 / dence.
Chit. Bills 405. Rule at Com. law, only in case of Foreign— “But a protest made in England must be proved by the notary who made it, and by the subscribing wit., if any[”].
6 Serg & R. 484 Brown vs. Philadelphia Bank “ “ 324 Stewart vs. Allison
Where it was held that under the act of the Leg. of Penn, of 1815 the official certificate of a notary was competent evid. to prove notice of non pay* to the indorser of an inland note— By the act referred to it is declared that the official acts, protests and attestations of notaries public certified according to law under their respective hands and seals of office may be received in evidence.
The Stat. of Penn, goes farther than our own, it makes the official acts &c evidence generally when duly certified But the safer course, and indeed the only, is to follow the established rule — unless &c &c— | [
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[indorsement]
Norris vs Lane et al.
[opinion]
Mark Norris vs. Marcus Lane et al.
Sup. Ct. Secd Cir. Jan. Tr. 1838
Certio. to Justice of the Peace.
Plf. in Er. & Defts. Lane & Hawks
By a stipulation of the parties, the affidavit is substituted for the return — it is agreed that the facts set forth in the affid4 shall be the facts in the case on which the court decide—
By affi* it appears, that Defts. in Error, were j oint owners of certain real estate, called Brewery property — that Plf. in Er. occupied said Brew. prop, under a lease or agree* of the Defts.—
Plf. in Er. paid the rent, amounting to about $10.00 to Lane one of joint owners—
In July last, Hutchinson, one of the joint owners of the sd property, commenced an action ags* Plf. in Er. in name of all the Defts. in Er. for recovery of the rents, which had accrued—
After the commence* of the suit, & before the return day of the writ — Lane informed Plf. in Er. that the suit should be discontd & that he need not give himself any trouble about it—
In pursuance of this agree* Lane, before the return day of the summons — directed the Justice to discontinue the suit— informed the Justice that the suit was brought in his name contrary to his wishes, and that the Plf. in Er. had fully accounted to him for the rents, to recover which the action was brought—
The Plf. in Er. did not appear before the justice, to defend the suit, in consequence of the agree* of Lane to discontinue— At the instance of Hutchinson, one of the Defts. in Er. Justice proceeded to hear the cause and rendered Judg* for Plfs. to recover $9.85 Dams & their costs That there was no evidence of a privity of contract, between the parties, on the hearing before the Justice
Plf. in Er. excepts to this proceeding, insisting, that the rents for which the action was brought having been paid to one of the joint owners of the leased property, that Plf. was thereby forever discharged from liability to either & all the Defts—
And that this fact having been made known to the Justice, & he directed to discontinue suit committed Error, in proceeding afterwards to render judg4 in the case — especially in absence of Plf. and without proof of privity of contract, between parties—
The payts of the rents by the Plf. to one of the joint owners, was unquestionably a finale & complete discharge of the Plf’s. liability to the j oint claim of the Defts—
Judg4 being rendered for Defts. to recover am4 of debt, after the lease had been fully paid & discharged — is erroneous —& the judg4 must be reversed & the Plf. in Er. recover his costs— | [
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[indorsement]
Sup. Court. 4th Cir. Jany ’42
Taylor vs. Beach et al
Mem0 of opinion 29 March ’42
Verdict set aside & venire de novo
[opinion]
Elisha Taylor vs. Elisha Beach & Harvey Parke
This case was reserved and certified to this Court from the Oakland Circuit by the Presiding Judge of that Court., and presents a single question whether the evidence given on the trial to prove notice to the Defts who were sued as Indorsers of a promissory note, of the non payment of the note by the maker.
A verdict was taken for the Plff, subject to the opinion of this Court on this question—
The note was discounted at the Bank of Pontiac, and was there at maturity—
The evidence to prove the notice, was the Deposition of Mr. Vandevanter, and is as- follows. — “I cannot recollect particularly whether I did, or did not, give notice of the nonpayment of the note to the said Defendants — [”]
["] There is no memorandum on said note by which I can tell positively whether I did, or did not give said notice to said indorsers — [”]
—[“]It was at the time the said note matured, the practices in said Bank of Pontiac, for me to demand payment, and give notice of the non payment to endorsers, on all notes which fell due at the said Bank — Sherman Stevens was at that time, an officer of the said Bank, and a Notary Public, and it was the common practice for said Stevens to leave with me certificates of protest, signed by him, to be annexed to notes which should fall due at said Bank in his absence from the Bank — And when notes so fell due in his absence, and not paid, it was the uniform practice for me to demand payment of said notes, and give notice of nonpayment to the indorsers on the day the note or notes matured — And whenever notice of nonpayment was served by me, it was done by delivering the same to the indorser personally, or by leaving the same at his place of business or dwelling house, if he resided in the village of Pontiac — and if he did not reside in said village, to deposite the said notice in the Post office, directed to the Post office nearest the residence of such indorser — From a memorandum on the back of the certificate of Protest, in my handwriting, it appears that the said note hereto annexed, was protested at said Bank; and from the practice prevailing in said Bank, at the time said note matured, my best impression is that the said note was protested by me, and that I gave notice of the non payment thereof to the Deft — E. Beach by delivering the same in writing to him personally, or at his dwelling house in Pontiac, on the day the said note mature 5 and to the Deft. H. Parke by leaving the said notice at the Post office at Pontiac, directed tó said H. Parke at his place of residence”—
This is all the evidence of notice to the Defts—
For the Plff it is contended that this evidence was competent for the jury to pass upon, and they having found that notice was given, it is conclusive—
But whether the evidence was sufficient is not exclusively for the jury to determine — and as the question was reserved by the Judge on the trial, the question now is what direction this Court would give to the Jury if the case were now here on trial—
The witness’s swearing to his belief, which belief is founded upon the practice in the Bank or the general course of business has never been held sufficient — Some act done is required to be shown before such general practice can be permitted to be allowed as a ground of belief—
Smedes vs. Utica Bank — 20 John. 372.
Halliday vs. Martinet 20 John. 168—
Where the evid. o£ notice was quite similar to the evid. in this case — In that case a mem0 of notice made by a person in the office of a Notary Public of notice left at post office— But the persons who made the mem0 being called as a wit. could not recollect any thing upon the subject — Who put the letter in the post office, or how it was directed,—
—He further said that it was the custom of the office to leave notice at the residence of the indorser, if they could learn where it was, and if they could not discover it, to put a notice for him in the post office} and that he had no doubt that inquiry was made for the residence of the indorser, and that it could not be ascertained} but he could not say that such inquiry was made by him, or any other person.
The Judge who delivered the opinion of the Court says— “If the Notary has stated, that the indorser could not be found, he would have would have made out sufficient to entitle the Plff to recover} but to charge a party on a contract which is conditional in its nature, and creates no liability until certain precedent acts are performed, by merely proving the general practice of the office in other cases, accompanied by the opinion of a witness, not resting on any recollection or knowledge, but manifestly derived from such usual practice only, would, in my opinion, be dangerous and unjust. There could be no security in the administration or Justice, if such an innovation on the rules of evidence should receive the sanction of our Courts.”
In the present case the evid. is even less than it was in the case of Halliday vs. Martinet, last cited—
The witness does not refer to a fact or circumstance within his knowledge or recollection respecting the notice to the Defts — He says that from a mem0 which he found on the back of the certificate of Protest, in his own handwriting, it appears that the note was protested at the Bank, the day it became due — Even this does not relate to the notice to the indorsers — And the whole of his testimony in relation to the notice is his belief founded, and so stated by him to be, solely on the general practice prevailing in the Bank at the time—
There was no evidence at all upon the subject, and the jury could make no inference or-presumption in the case— —Verdict set aside — venire de novo | [
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Graves, J.
August 31, 1878, the defendant’s trustees entered into a written contract with Tappan to hire him to teach defendant’s school for the term of forty weeks beginning on the first day of the school year, September 2d, at $50 per month and board himself. The school was organized as a graded one in 1873 and so remained. He began teaching under the contract on the second of September and continued two days. He was then dismissed by defendant’s trustees, but no cause was expressed. September 24, 1879, he brought this action for damages. The circuit judge heard the case upon the facts and refused to allow a recovery.
It is said that the- trustees who contracted with Tappan were not empowered to hire for any time beyond the current school year to expire on the arrival of the annual meeting, September 2d, and that the contract so made on the 31st of August was not binding on the district after September first. The 'view taken is that the statutes mean that either the voters of the district or the board shall have full power to control the school during the whole school year, beginning on the first Monday of September, and exclusive of any hindrance or interference from contracts made previously ; and reference is made to the' authority for hiring teachers conferred by § 3616, and § 360'4 as amended in 1875 (Pub. Acts 1875, pp. 281-282), and § 3605.
Section 3616 provides for hiring teachers under the general law regulating primary schools, and § 3604 provides what may be done and transacted at annual meetings, and declares among other things that the qualified voters shall determine whether.the school shall be kept “by male or female teachers, or both ” during the “ ensuing year,” and § 3605 provides that in case this is not determined at such meeting the board shall be empowered to determine it.
These provisions it is contended can only leave room to operate according to the intent by leaving the selection of teachers during each school year to the exclusive control of the board for that year except in so far as the annual meeting exercises lawful direction.
There is much force in this reasoning, but whether it- is sound or not when confined to those primary schools which are not subject to the specific provisions intended for graded and high schools, it is not needful to discuss, because the essential provision on which it proceeds, so far as the present case is concerned, is not applicable to graded schools like the ' defendant’s. The hiring of teachers for these schools is not left to the general statute. It is taken out of it and specially provided for by a distinct provision. By § 3744 the trustees of graded schools are empowered to employ all teachers necessary, and what teachers are necessary is left to be decided by their sound discretion.
The context and general purview equally require this construction and the general sense of the regulation is repugnant ' to the notion that the voters at annual meetings may decide what kind of teachers shall be employed.
In the case of graded schools the trustees are not annually renewed. The Legislature has seen fit to give the board more permanence. One-third only or two out of six go out yearly. A purpose to secure an administration for these branches more stable and efficient in the interest of education than is very common under the general law, is plain enough, and there is no implication of a design that the power of the board should be so fettered that no teaching to commence on the first day of the school year could be lawfully contracted for until the annual meeting on that day should be closed. On the contrary, it may be fairly argued that the Legislature contemplated that these schools would generally open on the beginning of the school year, and that the teachers would have to be contracted with in season therefor, and that some time would be necessary to enable the trustees to perform with due care the important dnty of selecting and hiring. It is scarcely necessary to enlarge upon the question. The con tract appears to have been within the power of the trustees, and the record discloses nothing to impeach it. Neither the trustees nor the voters at the annual meeting had power to impair its obligation. Whether they resolved or not that none but female ’teachers should be employed is not important.
The finding contains no basis for a judgment here, and therefore it becomes necessary to reverse the judgment and order a new trial, the plaintiff in error recovering his costs of this court.
The other Justices concurred. | [
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Marston, C. J.
The construction of the will of Hugh A. - Young, of which the following is a copy, is the question presented in this case.
“In the name of God, amen.
“I, Hugh Andrew Young, of the city of Detroit, county of Wayne and State of Michigan, of the age of 55 years, and being of sound mind and memory, do make, publish and declare this my last will and testament in manner following, that is to say, I give and bequeath all my property, of whatsoever nature, to my wife Euphemia, she paying all my just and lawful debts. The half of the residue after her decease to be paid to my two sisters in Scotland, share and share alike; if either should die before my wife’s death, then the other to have the full half; if both should be dead, then let it be divided between their nearest heirs; the other half to-be disposed of as my wife may direct, as I hereby appoint her my sole executrix of this my last will and testament.
“ In witness whereof I have hereunto set -my hand and seal this 15th day of March, in the year of our Lord one thousand eight hundred and fifty-eight.
[Signed] “H. A. Young.” [l. s.]
What estate did his wife take under this will ? Taking the entire instrument and ascertaining the intention from the language used, I have no doubt but that Mrs. Young took the entire estate, and that the Stove Company under her deed of December 9, 1865; acquired all the title the testator had immediately preceding his death.
We have a statute which declares that every devise of land in any will shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it clearly appears by the will that the devisor intended to convey a less estate. 2 Comp. L. § 4323.
The language of the testator in the bequest to his wife is clear and unqualified and unless restricted by what follows would not be open to question. Does it clearly appear by what follows thereafter that the devisor intended to convey less than his entire estate to his wife? If there are doubts, then under the statute they must give way to the otherwise clearly-expressed intention. It seems to me that the testator-contemplated the fact that his wife might sell and dispose of his estate, but might not use during her life-time the entire proceeds tliéreof, and in case she did not, one-half the residue of such proceeds should be paid, after the decease of his wife, to his two sisters, and the other half as his wife should have directed. The language used cannot I think be held to clearly indicate a division of real estate amd nothing else after the death of his wife.
In my opinion this is the proper construction and the judgment below should be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Dickinson filed his bill as an alleged creditor of the estate of Timothy Morse, deceased, to set aside an award made in July, 1863, on a submission between Seaver, as administrator with the will annexed, and the other defendants, who by the award were released from full payment of ■a mortgage given by them to decedent of $50,000. The bill seeks tbe enforcement of this mortgage against the mortgagors, so far as the debt thereby secured, is involved, and for a general accounting and distribution of the estate.
The court below, which was the circuit court for the county of Van Bnren, declared the award invalid as against complainant and such other creditors as should appear, and made a decree for an accounting including not only these assets, but also the credits due the administrator. Defendants appeal.
The case can be better understood by some reference to the antecedent proceedings.
Morse, who lived in Vermont, died testate in 1862, and his will was probated in Vermont, and Seaver qualified as executor. Commissioners were appointed in that State, and a large number of debts proved, including all now claimed by complainant.
In June, 1863, the'will was upon regular proceedings admitted to probate in Lapeer county, Michigan, and Seaver qualified as administrator with the will annexed. No claims were ever presented or allowed in the Lapeer probate, so far as we are advised by this record.
In July, 1873, Seaver and other defendants submitted their differences to arbitration. The chief controversy— and so far as the evidence satisfies us, the only real controversy — was as to the mortgage before referred to, which — so far as we need refer to it — was of this natureIn 1857 the mortgagors purchased of Morse 3200 acres of land for $50,000 payable in ten instalments. There was an agreement -given back that unless a railroad then projected should be' built to the lands in two years, the purchasers might rescind, and Morse would release the mortgage and notes and take back the land. When the two years expired he had hypothecated the securities and could not give them back. The defendants claim, and they are borne out by the evidence, that Morse under these circumstances desired them to go on and lumber the lands, and take such measures as were necessary for that purpose, and he would make the proper allow anee for the difference in price caused by the failure of the railroad.
There were some- other matters between them which in our view aré of no present importance.
Seaver and William F. Dickinson (father and assignor of complainant) came out shortly after Morse’s death, and became fully acquainted with all of these matters. Dickinson was then interested in his own behalf or for others in claims against the estate, and defendants had full communication with him. There is no direct evidence of his complicity in the award, but he knew of the Michigan probate, and dealt with the administrator as such.
The bill claims that the award in question was made by the arbitrators as practically no more than a mere formality to carry out an arrangement as to its terms already agreed upon.
As already suggested the parties alleging claims did not prove their claims before the Lapeer probate court, and took no part in that whatever.
Complainant gets his alleged title in this way: On the 31st of December, 1872, somewhat more than nine years after the Michigan probate, a bill was filed in the United States circuit court for the Western District of Michigan,, in the name of a considerable number of persons claiming to be creditors of Morse’s estate, to the amount of $11,589.97' as of May 12, .1863, when the commissioners in Yermont reported — the .whole amount of claims being set forth as allowed at $58,604.09 — to set aside probate sales of land made in June, 1865, under a license granted in Lapeer in October, 1864, for fraud. These salés were made to William F. Dickinson, and complainant in this case was brought in as having become interested under him. The bill purported to be filed on behalf of'the complainants named in it and all other creditors who might come in and contribute to the expenses.
The bill contained among other things a prayer for an accounting by Seaver of the affairs of the estate, and payment of claims, and a receiver of the assets, as well as the general prayer.
On the 7th of September, 1877, a decree was made avoid ing the sales, except as to Chase H. Dickinson and others not parties to the suit, and requiring an account of the proceeds to be taken. It also set forth that several of the complainants had assigned before or after snit brought (not showing who were in either category), and allowing their assignees to come in and prove their claims.
The master reported claims originally allowed at $17,707.55, part of which had been subsequently purchased by W illiam F. Dickinson, and on September 8, 1877, transferred to Chase II. Dickinson, and the rest purchased by Henry C. McDuffy, and on the last mentioned day assigned to Chase II. Dickinson, against whom the case was discontinued.
These claims were proved by a stipulation between Thomas B. Church purporting to act as solicitor for defendant W. F. Dickinson, and by Chase H. Dickinson and Norris as solicitors for complainant, whereby it was stipulated that any person now claiming to own any of the claims allowed in Vermont, might prove them by producing and establishing by his own oath an assignment of any of those claims as appearing in what purported to be a copy of the commissioner’s report — not certified in the form required by the acts of Congress, and very incomplete otherwise. Under this stipulation, Chase IT. Dickinson, who is a citizen of the State of Michigan, and was no longer a party to the record, was allowed to prove all the claims passed upon, and of these there were between $3000 and $1000, which were not set forth in the bill, with interest from 1863.
No further action was taken on behalf of any of the parties to the record, but on the 25th of February a petition was filed by Chase H. Dickinson, stating the master’s report and his sale of the' disputed lands, leaving a balance in court of $1280.10, and praying an order of distribution. 'Simultaneously with this filing, and by consent of Thomas B. Church appearing for William F. Dickinson but not for Sea-ver, and of L. D. Norris appearing for complainants and for Chase II. Dickinson, a decree was made directing the whole, and not his aliquot part of this money to be paid to Chase H. Dick inson, and adjudging Mm to be owner of a remaining amount of claims of $30^356.13.
Upon this state of tilings the circuit court of Yan Burén made, and we are asked to affirm, the decree appealed from. We think the decree was entirely unsustainable, either on the law or on the facts.
It is not within our province to consider the effect of the decree of the United States Circuit Court so far as it affects the parties to that suit. It does'not appear to have been made by the judge on his own consideration nor to have been made on a regular hearing, or upon papers by which Seaver was called in. But it is very certain that it cannot affect strangers to the record, or operate to interfere with the regular State probate. In the view we take of the case it is not important as to complainant’s claim, which for the purposes of this suit may be assumed to be one which was covered by the Yermont probate. And therefore we need not discuss this proceeding further, and need not question the decree or the manner in which Chase H. .Dickinson got back upon the record as dominus litis.
Under our probate system estates must be settled in the probate court, and claims must be proved there. Whatever may be done with the final balance where the testator’s will has been previously probated at his domicile, the estate must be administered up to the time of distribution under the State probate laws. The doctrine is elementary that no administration is extra-territorial, and the statutes provide fully for the jiroof of claims. No foreign proof can be enforced here without re-allowance any more than a foreign judgment of any other kind can be enforced without being-sued over. The force of a foreign judgment as evidence may be very great, and in cases covered by the constitutional provisions may be conclusive, but nevertheless it must be established here in new legal proceedings. No judgment can be enforced outside of the jurisdiction rendering it, in any other way.
Under our statutes the probate judge has full power, within the time fixed by statute, to appoint commissioners and to provide for proof before himself. Comp. L., §§ 4420, 4427. If the executor makes no application, then the creditors have power to apply, and it must be held that if they do not choose to do so, they have only themselves to blame.
In the present case it is urged that the fraud complained of was secret, and therefore equity will aid them in securing payment out of assets of whose existence they were ignorant, and without which any second proof of claims already established in Yermont would have been to no profit. Upon this there are several things to be considered.
In the first place no court but the probate court has any such jurisdiction m rem, as will enable it to reach persons out of the State, or to call in all creditors. Every creditor is interested in reducing the claims of other creditors, and this is recognized by statute, allowing them to appeal. Comp. L., § 4439. The circuit court in equity has no power to act as a substitute for the probate court in this way. Unless it has authority to deal with a case through the parties actually before it, it cannot deal with it at all. It is beyond the power of the circuit court for Yan Burén county to usurp the functions of the Lapeer probate court, in attempting to take charge of and wind up this estate. Shelden v. Walbridge ante, p. 251.
Had the suit been brought merely to set aside some fraudulent transaction in aid of the administration, by a creditor in proper standing in due time, a different question of jurisdiction would present itself, involving possibly less difficulty. But in the present case we think complainant has no such equity. Fifteen years elapsed after the will was probated in Lapeer before this bill was filed. In the meantime none of the creditors represented by complainant attempted in any way to bring their claims before the court, or inquire into the condition of the assets. The mortgage to Morse was on record undischarged, and they had notice that he had lately owned such a security which had only in part matured. They ought therefore to have inquired into the matter if they desired to have it applied to their benefit. The probate court has full power to do this. Shelden v. Walbridge supra; In re Rathbone's Estate ante, p. 57. And such a delay unexplained is fatal to any complaint for fraud. Not only is it not explained, but there is no allegation or showing that the original creditors were ignorant of all that was done.
So far as William F. Dickinson is concerned, he was informed before the Lapeer probate of the existence and precise situation of the mortgage, and of the counter claims of the mortgagors, and there' is no reason to doubt that he kept, or might readily have kept, informed of all that followed, and did not disapprove it. At any rate he was in a position where speedy action was incumbent on him to have the assets accounted for. There is room for no serious claim that he had any reason to complain, and he never did complain, so far as the record shows.
The present complainant — according to his own proofs— has merely purchased claims for the purpose of this litigation or of some litigation. He was never defrauded. It would be against every rule of equity to allow a party to buy up stale claims and then seek to establish fraud committed .against his assignors. A right to complain of fraud is not assignable, and the claims in controversy have nothing involved which could keep them alive at all unless fraud would do so. Being nothing more than an assignment of an action for fraud it is well settled that it will not be enforced. Brush v. Sweet 38 Mich. 574.
It would not be quite fair to defendants to dispose of the case in such a way as to leave an inference that the arbitration was fraudulent. We think the testimony shows that the mortgagors desired to rescind and were prevented by the hypothecation of the mortgage, and that they only retained the lands on the understanding that the price should be abated. We need not consider the legality of the arbitration. The result, whether treated as an award or a compromise, was not an unfair one, and we think was honestly reached.
The decree must be reversed and bill dismissed with costs ■of both courts.
The other Justices concurred.
Afterwards, at the January term, 1881, complainant appealed from the taxation of costs by the clerk of the Supreme Court and moved for a re-taxation. The bill of costs as allowed was as follows :
State op Michigan — In the Supreme Court.
The Circuit Court for the County of Van Burén — In Chancery.
Chase H. Dickinson, complainant v. Samuel Rogers et al.,
DEPENDANTS.
Solicitors’fee by rule in the Circuit Court.....................$ 30 00’
Solicitors’ fee by rule in the Supreme Court.................. 30 00
For printing record for Supreme Court, 306 pages, 70c......... 214 20-
For printing two briefs, one 37 pages, one 14 pages, 70c. per page, 35 70'
For preparing copy of record to print from for Supreme Court,
802 folios, at 10c........................................ 80 20
Register’s fees in the Circuit Court............................ 10 00
Register’s fees for making return to Supreme Court............ 5 00'
Clerk’s fees in Supreme Court, under rule..................... 6 00-
Circuit Court Commissioner’s fees taken by stenographer by stipulation, 189 folios, at 20c. a folio...................... 37 80
To administering four oaths, at 2oc........................... 1 00
Witness fees, the names, number of days and travel of each:
Miles. Day.
Josiah Turner, travel and attended as follows......... 85 1 9 50
Isaac 3ST. Jenness, travel and attended as follows...... 67 1 7 70
Samuel Rogers, travel and attended as follows ....... 65 1 7 50
George L. Seaver, travel and attended as follows: from
South Haven to Detroit......................... 170 1 18 OO
George L. Seaver, travel and attended as follows: from
South Haven to Grand Rapids................... 65 1 7 50-
David R. Shaw, travel and attended as follows: to
Grand Rapids................................. 1 1 1 00
Total
$501 20-
Motion submitted January 4, 1881. Granted January 19.
Norris & Uhl and Chaney for the motion.
Geer & Williams against.
Per Curiam.
The following objections to the bill of costs appear to be well taken :
- 1. The printing bill is apparently excessive. The clerk should limit the allowance to what is the customary rate unless satisfied that the party in good faith has paid or promised to pay more. Of course charges throughout the State are not expected to be uniform, and counsel has a right to have the printing done where it will be convenient to him to look after the proofs.
2. If defendants claim for register’s fees in the court below, they must present a bill of items. The fees in that court in the main are fees for which the register must look to complainant. It is different in the Supreme Court: the defendants being the moving party there.
3. If the stenographer’s charge includes anything for taking complainant’s testimony, it is to that extent erroneous; otherwise it is unobjectionable.
4. Fees charged for the attendance of parties as witnesses are not covered by the ordinary affidavit of disbursements. There should be a special affidavit showing that they attended in the capacity of witness, and traveled as charged for that purpose, and not as parties to assist, by their counsel or otherwise, in the conduct of the cause.
The defendants should be allowed to withdraw their papers and make a new showing.
On re-taxing costs the Clerk increased the allowance for printing to the amount sworn to in the affidavit of disbursements, having reduced it on the first taxation. At the April term complainant appealed from the re-taxation and again moved for a re-taxation. Motion submitted and granted April 12.
Norris do Uhl for the motion.
Geer & Williams against.
The Court ordered the amount allowed on the re-taxation to be reduced to the sum originally taxed. | [
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Marston, C. J.
This action was brought to recover the amount paid by Proper, as surety, on a promissory note dated February 20,1877, given by plaintiff in error while a married woman, for the unpaid balance of her husband’s debt contracted as early as 1873. It appeared that in the fall or winter of 1873 Mrs. Richards’ husband conveyed to her certain encumbered real estate : the value thereof, or amount of the encumbrance, does not appear, nor does it appear what other property he then owned or the amount of his indebtedness.
Plaintiff below claimed that because Mrs. Richards had received a conveyance of the real estate referred to she should be held liable upon this note. At the time the note was given (or a previous one given by her for the same debt which this was to take up), she was told that she should give the same if she were to have her husband’s property. The argument advanced in this court is that the principal debtor, having while indebted transferred his property to his wife under such circumstances that the creditors could still follow the property, she, in consideration of the premises, could bind her estate by giving a note. In other words, that knowing the consequences she preferred to charge her property by giving this note, rather than that the creditors should seek to deprive her of the property she had received from her husband in fraud of their rights.
It is a sufficient answer to this position to say that there is no evidence tending to show the conveyance to Mrs. Richards to have been fraudulent as to her husband’s creditors. The property conveyed to her was encumbered; the value thereof over and above the encumbrance does not appear. Her husband may have had sufficient other property, real or personal or both, at that time to meet every obligation against him. In other respects the case fails to show a conveyance fraudulent as to 'creditors. Even if it did, we are not prepared to say that Mrs. Richards could be held upon this note upon the theory advanced in this ease. We may well doubt whether a fraudulent conveyance by the husband «of his property to his wife would confer power upon her to bind herself in this manner to an unlimited extent. Such Would be the effect of the doctrine contended for in this case. We need not, however, give any opinion upon such a question, as it does not arise in the present case. See Reed v. Buys ante. p.-.
The judgment must be reversed, with costs and a new trial ordered.
The other Justices concurred. | [
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Cooley, J.
The bill in this case was filed to foreclose a mortgage given February 15, 1878, by defendant Brown to complainants, and recorded on the day of its date. No question is made of the lona fides of this mortgage, and the case turns upon a question of priority between the mortgage of complainants and one given by Brown to defendant Bindge, of the same land, for $1500. The Bindge mortgage bears date December 11, 1877, and purports to have been recorded January 1, 1878. It was shown by complainants, however, that at the time of the taking of their mortgage they applied to the register of deeds for an examination of the title to the land, and he reported to them it was unencumbered. On the other hand, Bindge testified that Brown made the mortgage and brought it to him fully executed in December, and that he took it, but then handed it back to Brown with instructions to put it on record ; that on January 19, 1878, he called at the register’s office for it, and was told it was not yet recorded; that he called again in March following, when he found that the register had erased an entry he had made of its receipt for record, but the mortgage was actually recorded, and he, Bindge, insisted upon having it, with the usual certificate of record, and succeeded in so obtaining it. There can be no question that the register marked the mortgage as received for record January 1,1878, and made an entry to that effect on a book kept for the purpose, which was seen by two witnesses before complain-. ants’ mortgage was recorded; but the register testified that Brown handed him the mortgage with express directions to hold and not record it unless subsequently told to do so, and that he never received any subsequent instructions. He also testified that it was not in fact recorded at the time complainants’ mortgage was put upon record, and that the recording was done by his deputy, without his direction or knowledge. He further testified that the fees for recording were not paid to him. Brown, for some reason, was not called as a witness, and the register’s testimony was in the main undisputed.
Complainants in their bill allege that the mortgage from Brown to Bindge was given without consideration, and as a fraudulent cover to his property. We are of opinion that this was the fact. Bindge admits that there was no debt from Brown to himself, but he claims that the mortgage was given as collateral security to a debt owing by Brown to a copartnership of which Bindge was a member. No such purpose appeared in the paper, and it was necessary to show the fact by parol evidence. The same evidence further showed that the copartnership held securities independent of this largely in excess of their demands, and from the fact that this mortgage was voluntarily made by Brown and brought to Bindge without having been asked for, goes far to establish the allegation complainants make respecting its fraudulent purpose. Nevertheless a man may give a voluntary mortgage if he chooses, and it is fraudulent only as to those who are or would be defrauded by it. Gale v. Gould 40 Mich. 515. And no one would be defrauded, in contemplation of law, who was merely a subsequent mortgagee with notice, actual or constructive, of the voluntary instrument.
In the present case, however, we are convinced that the Bindge mortgage was neither in fact nor in contemplation of law, on record when the mortgage to complainants was recorded. The register’s evidence respecting the delivery of the mortgage to him by Brown stands uncontradicted, and we have no reason to doubt its truth. The fact that the mortgage was one by which Brown was the party to be benefited rather than Bindge, precludes Bindge from relying upon the register’s certificate of record as against the actual fact, and makes his interest, such as it is, chargeable to the fullest extent for Brown’s directions to the register. It is very clear that merely leaving the mortgage in the register’s hands was not, under the circumstances, leaving it for record (Austin, v. Curtis 41 Mich. 723); and there was consequently no constructive recording. As the actual copying of the paper into the record book did not take place until complainant’s mortgage was recorded, we need not concern ourselves with the question whether that copying it into the book without direction to that effect was or was not a recording. It is sufficient for the purposes of this case that the register had no right to record the paper as of the time when it was first left, even had he been willing to do so.
The court of chancery erred in allowing precedence to the Rindge mortgage. The decree in that particular must be modified, and in other respects affirmed. The complainants are entitled to the costs of both courts.
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Graves, J.
Greenwalt recovered for alleged criminal conversation with his wife. The suit was in the common form of an action on the case and was commenced in August, 1878. The trial took place in February, 1879. The whole testimony to prove the imputed intercourse and establish the cause of action was given by Greenwalt and his wife. The act was represented as one to which she was an involuntary party, and as having been accomplished against her will by actual force and over the stoutest resistance of which she was capable. It was referred to some day in December, 1877, earlier than the 27th.
Egbert testified for himself and positively denied having had intercourse with her at any time. It was claimed for Greenwalt that the injury inflicted by his wife’s violation was aggravated by her being left pregnant; and the court overruled the defendant’s objections and permitted her to testify that her husband, in consequence of having fever and ague, did not sleep with her for some time prior to defendant’s connection with her, and had not slept with her since; that soon after the occurrence she discovered she was pregnant, and then informed her husband that the child wras defendant’s; that it was born the 23d of August, 1878. The plaintiff testified that he did not sleep with her for three months; that in the latter part of June, 1878, he noticed his wife’s situation, and she then confessed to him. But he had continued since to live and cohabit with her.
. The record contains a general exception to the court’s refusal to consider the evidence sufficient to bar the action. It is too vague to deserve notice. But as counsel adverted to it a few words may not be amiss. The point of the objection is understood as being that the nature of the action excluded the idea of violence and contemplated that the wife’s participation was voluntary and not forced, and that as the case made by the evidence negatived her consent and proved that she was debauched by violence, the action failed.
The position is not tenable. The common law, in giving this remedy, instead of making the husband’s right of action depend on his wife’s having consented to her defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent but was overcome by force, and the action has been sustained just the same, whether as matter of fact her will concurred or she was outraged by actual violence. Bac. Ab. Marriage and Div. 551-553; 3 Bl. Com. 139; 1 Chitty Pl. (7th Eng.: 16th Am. ed.) 140, 141, 150, 151, 188; Broom’s Com. 847, 84S; 2 Hilliard on Torts, 507; Forsythe v. State 6 Ohio 23. And there seems to be no basis in justice or policy for the position that if the personal wrong is accompanied by circumstances of such atrocity as to elevate it to the public offense of rape, the private remedy is thereby either taken away or suspended. Cooley on Torts 86 to 90. It is not reasonable to convert the wife’s innocence into a shield to save her assailant from prosecution for his private wrong to her husband. Lord Holt seems to have' recognized the principle that both remedies were admissible in a case of actual violence; and alluding to an attempt to carve out cause for a third proceeding to be carried on in the Bishop’s Court, he said: “ If a man solicit a woman, and goes gently to work with her at first, and when he finds that will not do, he proceeds to force, it is all one continued act, beginning with insinuation and ending with force.” Rigaut v. Gallisard 7 Mod. 78.
In view of the rulings made on admitting evidence and in charging the jury it is unquestionable that the verdict must have been much influenced, if not determined,'by the statements tendered on the part of the plaintiff and his wife and received by the court for the purpose of causing the jury to believe that they had no sexual intercourse at the time the child was begotten, and that the wrongful act of the defendant must have been the occasion of her condition, and this evidence in my opinion was not admissible. The parties were living amicably under the same roof and there was no serious obstacle to intercourse. There was such access as gave opportunity. That is not denied, and as matter of fact it was not asserted that intercourse did not take place.
It is not perceived that the wife’s being admitted as a witness was objected to; and assuming, for this case, that she was entitled to be called, it does not follow that her personal knowledge of whatever in itself might be pertinent to the issue, was rendered provable by her if objected to. The difference is wide between the competency of one to be a witness in a given ease, and the right to use the witness to prove certain facts in his or her knowledge, however proper s'uchi facts may be in their own nature. There may be no ground whatever for excluding the person from the stand; but there may be sound reasons for refusing to permit him or her to-swear to certain things or on certain subjects. The system of legal evidence has afforded always, and affords still, many illustrations. The statute offers an example where it ex eludes-certain communications unless theiiq disclosure is mutually assented to.
According to an ancient rule of the common law the evidence of neither husband nor wife could be received to disprove the fact of sexual intercourse (Rex v. Book 1 Wils.. 340); and Lord Mansfield declared that it was “ founded in decency, morality, and policy ” (Goodright v. Moss Cowper 591); and no judge or author has ever dissented from his strong approval. The reason of the rule has prescribed limits to its application, but there is no present occasion for special reference to any of the qualifications. That the Legislature intended to abrogaté it is not to be assumed. No one will contend that the course of the legislation of 1861 was unfriendly to it, nor can it be fairly argued that the terms or spirit of the amendments then made have supplanted it. The-general purpose the Legislature had in view was to sweep-away a number of objections against the competency of witnesses, but not to break down any rule “ founded in decency,, morality, and policy;” and so far as ascertained, the courts,, wherever these general changes have taken place, have considered this rule of the common law as untouched. Tioga County v. South Creek Township 75 Penn. St. 436; Boykin v. Boykin 70 N. C. 262 ; Chamberlain v. People 23 N. Y. 88;. People v. Overseers of Ontario 15 Barb. 286 ; Hemmenway v. Towner 1 Allen 209; Stephens’ Ev. art. 98. The effect of the statute upon the capability of the wife as a witness, for the people in a prosecution against a person for having committed adultery with her, was fully discussed in Parsons v. People 21 Mich. 509; but it was not found necessary to-consider the present questions. I think the evidence of the plaintiff and his wife which was adduced to show non-inter course between them, was not admissible. "Whether some items might not have gone in for some other purpose need not be considered. They were offered and allowed to disprove sexual connection between the husband and wife, and establish as a necessary alternative that the defendant begot the child.
But let it be assumed that the evidence was lawfully before the court and jury, and then I think it was destitute of all force to prove non-intercourse, and that the court should have charged the jury to that effect. It was a maxim of the Homan law, and one which the common law copied, that the presumption is always in favor of legitimacy (Co. Litt. 126a) and that he is the father whom the marriage indicates (Co. Litt. 123; Domat pt. 1 b. 3, t. 6, § 5; and Montesquieu, alluding to it, observed that “ the wickedness of mankind makes it necessary for the laws to suppose them better than they really are. Thus we judge that every child conceived in wedlock is legitimate, the law having a confidence in the mother as if she were chastity itself.” Spirit of the Laws, B. 6, c. 17; and D’Aguesseau laid it down that “whilst the birth of children can be ascribed to a legitimate source, the law will not suppose criminality.” Greenleaf says that where the husband and wife cohabit together as such, and no impoteney is proved, the issue is conclusively presumed to be legitimate, though the wife is proved to have been at uhe same time guilty of infidelity. 1 Ev. § 28. The current of ; authority is in favor of qualifying this statement, and instead of regarding the presumption as conclusive, to require it to .apply with great force but subject to be overcome by admissible facts and circumstances of such cogency as to render belief necessary. Morris v. Davis 5 Cl. & Fin. 163 ; Wharton’s Ev. §§ 1298, 1299, 1300; Best’s Ev. (Wood’s ed.) 426, 464, 465; Stephen’s Ev. art. 98.
In the case of the Banbury Peerage the House of Lords dealt with the presumption and the degree of evidence necessary to overcome it, in this language: “ In every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife, until that presumption is encountered by such evidence as proves, to the satisfaction of those who are to decide the question, that such sexual intercourse did not take place at anytime when, by such intercourse, the husband could, according to the laws of nature, be the father of such child.” 1 Sim. & S. 155. And in Bury v. Phillpot, the Master of the Rolls, afterwards Lord Cottenham, ruled that when opportunity existed for sexual intercourse within such period that the child in question might have been begotten by the husband, mere probabilities can have no weight against the legal inference : 2 Myl. & K. 349; and see Kleinert v. Ehlers 38 Penn. St. 439; Dennison v. Page 29 Penn. St. 426 ; Hargrave v. Hargrave 9 Beav. 552.
To overcome the presumption and disprove intercourse there must be cogent facts and circumstances : Head v. Head 1 Sim. & S. 150; Patterson v. Gaines 6 How. 550; in Stegall v. Stegall Chief Justice Marshall held that whilst it was not necessary to make out that connection was not possible, it was proper that the evidence should establish its non-occurrence beyond all reasonable doubt (2 Brock. 256); and the Supreme Court of Massachusetts applied the same rule in Sullivan v. Kelly 3 Allen 148. See also Phillips v. Allen 2 Allen 453 ; Hemmenway v. Towner supra.; Cross v. Cross 3 Paige 139.
Here, as already noticed, there was neither proof of inability nor of the certain want of opportunity, or even ¿he faintest approach to a denial of the fact, and the child was born only eight months after the alleged violence. The circumstances permitted the assignment of the paternity of the child to the plaintiff without any infringement of the statements sworn to, and the court should have told the jury, as I think, that there was no legal evidence that the plaintiff was not father of the child, and that it was their duty to consider that he was. Some other matters have been referred to, but as the hearing has been ex parte, no one having appeared to support the judgment, it is deemed best to dispose of the case without going further.
The judgment must be reversed with costs and a new . trial granted.
The other Justices concurred. | [
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Campbell, J.
Plaintiff was convicted under the Liquor Law of 1879 of selling liquor without having paid the required tax.
The case comes up on two specified objections to the constitutionality of the law — First, that the amendment whereby the anti-license clause in the original constitution was repealed, was not lawfully submitted to the people; and second, that the law does not indicate the object to which the tax is to be applied.
This last point refers to article 14, § 14, of the Constitution, which declares that “ Every law which imposes, continues, or revives a tax, shall distinctly state the tax, and the object to which it is to be applied ; and it shall not be sufficient to refer to any other law to fix such tax or object.”
This section, which does not seem to have been discussed at all in the Constitutional Convention, was evidently borrowed from an amendment to the Constitution of 1835, proposed in 1842, and ratified in 1843, which provided in substance that every law creating a State debt should specify the object for which the money'was to be appropriated, and be confined to a single object, and all money raised under it should be applied to the specific object stated in the law, and to no other purpose. Sess. Laws 1812, p. 157 ; Sess. Laws 1813 p. 231. Its intent is manifest, to prevent the Legislature from being deceived in regard to any measure for levying taxes, and from furnishing money that might by some indirection be used for objects not approved by the Legislature. Inasmuch as the Constitution in another place confines all statutes to single objects, the restriction is less important than under the old Constitution. It must receive a reasonable construction to carry out its design. The statute in question does not, we think, violate that design. The tax, it is admitted, is definite enough. It is to be received by the county treasurer of each county and placed by him to the credit of the contingent fund of the township, city or village from which it is collected, and paid over to the proper local officer to be used for the purposes of that fund. Pub. Acts 1879, p. 297.
We can see no reason why the increase of the contingent fund of a corporation is not a specific object. The Constitution certainly does not contemplate, but rather forbids, any reference to a city or village charter in terms; and it would be a gross abuse to insert in such a statute as this a copy of the multifarious purposes of a contingent fund, mentioned in any or all of the local charters at length. There is no uncertainty in a provision which" names the classes of beneficiaries, and devotes the taxes to their use in a fund which is perfectly understood by every one as devoted to non-specified purposes, some of which could not be readily foreseen. If this objection is good it would be difficult to understand why a city charter allowing money to be paid into a contingent fund, would not come within similar difficulties. A nice objector might say that paying money over to a city or township for general purposes would be uncertain. We must treat these provisions sensibly, and not hypercritically; and when the purpose is named and unmistakable, and it is impossible for the Legislature to be misled concerning it, no other practical requirement can be found.
As the other objection applies to several amendments, and is of general importance, it requires a comparison of the Constitution in its various parts, and some reference to its antecedents, to determine it. The resolution proposing the amendment in question was filed in the Executive Office March 30, 1875, and provided that it should be submitted to the people “ at the next general election, to be held on the first Tuesday succeeding the first Monday in November, in the year 1876.” Pub. Acts 1875, p. 305. Plaintiff claims that a general election was held in April, 1875, at which this amendment should have been submitted.
By article 20 of the Constitution, relating to the subject of amendments and revisions of the Constitution, it was provided that when amendments had been agreed to in proper manner by the Legislature “ the same shall be submitted to the electors at the next general election thereafter, and if a majority of electors qualified to vote for members of the Legislature, voting thereon, shall ratify and approve such amendment -or amendments, the same shall become part of the Constitution.”
The question presented is what is meant by the term “ general election.” The only way to determine this is to see whether there is anything in the Constitution itself bearing on the subject, and how far light can be had in case of doubt from other sources.
The first thing to be looked at is the provision in the schedule whereby this Constitution itself was to be submitted to a popular vote.- By § 16 of the schedule it was Ordered that “this Constitution shall be submitted to the people for their adoption or rejection, at the general election to be held on the first Tuesday of November, eighteen hundred and fifty; and there shall also be submitted for adoption or rejection, at the same time, the separate resolution in relation-to the elective franchise; and it shall be the duty of the secretary of state, and all other officers required to give or publish any notice in regard to the said general election, to give notice, as provided by law in case of an election of governor, that this Constitution has been duly submitted to the electors at said election.” A subsequent election authorized all persons to vote on it who were qualified to vote for members of the Legislature, and for a canvas of votes as for governor. By section 2 of article 20 the amendments were made to take effect at the beginning of the next year.
The resolution which was voted on with the Constitution, referred to the “ next general election ” as the time of voting.
By § Si of article i it was declared that “ the election of senators and representatives, pursuant to the provisions of this Constitution, shall be held on the Tuesday succeeding the first Monday of November, in the year eighteen hundred and fifty-two, and on the Tuesday succeeding the first Monday of November of every second year thereafter.” By article 5 the governor and lieutenant-governor were required to be elected at the same time with members of the Legislature.
By § 20 of article 6, the election of circuit judges was to be held on the first Monday of April, 1851, and every sixth year thereafter; and whenever new circuits were created, the successors of the additional judges were to be chosen “ at the regular election herein provided.”
By article 8 the state officers were to be chosen “ at each general biennial election.”
By article 11 township officers were to be elected annually on the first Monday of April. By article 13, § 6, regents of the University were to be elected in each judicial circuit “ at the timé of the election of the judge of such circuit.” By section 9 of the same article it was provided that “ there shall be elected at the general election in 1852 ” three members of a State board of education, “ and at each succeeding biennial election ” one member, to hold office for six years.
By article 15 any banking law was to be submitted at “ a general election.”
It will be seen from all this that under the Constitution there was only one election which was ever referred to as a general election, and that the term was used as identical with the November election, which was previously annual, and thereby made biennial. That was the only election held sim ultaneously throughout all the State for officers to represent the whole State. At that election the governor and all the State officers throughout all the State, and the senators and representatives in the State Legislature, except in the Upper Peninsula, were chosen. The only other elections referred to were the annual town meetings, and the sexennial circuit elections for circuit j udges and regents, in which the Upper Peninsula was separated from the rest of the State for judicial purposes, and attached to Wayne county for the election of a regent for the third circuit. It is also worthy of remark that under the old Constitution (article 13) amendments might be submitted to vote at any time and in any manner determined by the Legislature. The change, therefore, cannot be regarded as accidental or without meaning, and the general election contemplated was regarded as important. And it appears from the Convention Debates not only that an attempt was made to leave the time and manner of voting for the Legislature to fix, but also that it was understood no amendment could be voted on under the Constitution as it stands except at the November election to be held biennially. Convention Debates, 466, 467. No amendment of the Constitution has been made which denominates any other election in the same way. We have no means of knowing what were the reasons which led the several members of the Constitutional Convention to prefer a submission at the fall election. It may be presumed it was an idea, which facts have always warranted, that more votes are cast at that election than at other times. And when the Constitution went into operation there was no other election held annually or biennially in all of the cities.
It is hardly necessary to say that subsequent legislation could not change the meaning or effect of any part of the Constitution. That instrument can only be changed by the combined action of the Legislature and the people. If the Legislature could, by merely calling things by particular names, alter constitutional provisions, it would be quite unnecessary to consult the people on the subject of amendments. The only foundation for any notion that the spring elections can serve the purpose of the general election mentioned in the Constitution is that in organizing the present Supreme Court in 1857the statute declared that a “general election” should be held on the first Monday in April every second year for the election of judges. Sess. Laws 1857, p. 390. Of course, the Legislature can make their own definitions for statutory purposes, but this would not change the constitutional definition, or make it apply to any election not within the constitutional contemplation.
It is also important to consider that while under the Constitution of 1835 the Legislature could appoint elections to be held at auy time to vote on amendments,’which in a certain sense would be general in the same way with the judicial election under the law of 1857, yet the statutes always distinguished the general election in the fall from all the rest. In the chapter on construction of statutes, found in the Revision of 1838, it is declared that the words “general election” shall be construed to mean the election in November. Rev. Stat. 1838, p. 3. The same idea is expressed in the Revision of 1846, which was in force when the Constitution of 1850 was adopted. Rev. Stat. 1846, p. 37. -The Legislature of 1851, whose duty it was made to adapt the laws to the new Constitution, passed two separate laVs on elections. The first (Sess. Laws 1851, p. 20) is entitled “ An act to provide for the election of circuit judges and regents of the University,”' and provides for the canvassing of the votes by the State canvassers, as well as for the general and special methods of election. The second (p. 281) is entitled “ An act to provide for holding general and special elections,” and covers the whole subject of elections. In that act the November election is spoken of throughout as the general election, and vacancies in the offices of circuit judge and regents as well as others were to be filled at that election, and since 1857 it has been amended so as to include vacancies in the Supreme Court. Pub. Acts 1875, p. 22.
The first amendments adopted under the Constitution of 1850 were adopted by the Legislature of 1859, two years after the statute of 1857. Sess. Laws 1859, pp. 1100, 1102, 1105. All of these were expressly required to be submitted to vote at the next general biennial election, which was not held till 1860, and all of them were then ratified by popular vote, and have since been regarded and acted on as part of the Constitution. A question arose in the Legislature of 1859 whether the election for Supreme Court judges was not the next general election. The opinion of Mr. Howard, as attorney-general, was asked, and he reported his views at length, holding that the November election was the only one at which amendments could be voted on. House Journal 1859, p. 123. After a full consideration of the matter, this view was accepted as correct, and all the amendments which have since been acted on have been submitted in the same way, until in 1875 the Legislature adopted and submitted for action in 1876, when it was ratified, a change which allowed submission to the people either in the spring or fall, as should be determined. Pub. Acts 1875, p. 310. In the meantime amendments have been proposed and voted on continuously upon the construction put upon the Constitution in 1859. See Sess. Laws 1861, pp. 588, 589, 590, 591; Sess. Laws 1865, pp. 779, 794; Sess. Laws 1869, pp. 424, 425, 426, 427, 428, 431; Sess. Laws 1870, p. 13; Sess. Laws 1871, pp. 398, 404; Sess Laws 1874, pp. 11-35.
Many of these amendments have been confirmed and legislation has been had under them, and no one has hitherto doubted their validity.
We think the language of article 20 of the Constitution, taken with all the various other provisions which refer to general elections, very plainly refers to the fall election, and that the practical construction put upon it is correct and binding.
We therefore are of opinion that the amendment of 1875 was properly submitted and became a part of the Constitution by the vote of the people in 1876.
The. judgment of conviction must be affirmed.
The other Justices concurred. | [
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Marston, C. J.
The plaintiff in error insurance company upon the 19th day of October, 1875, by a policy did insure Ira B. Kendrick against loss or damage by fire to the amount of four thousand dollars on certain buildings and personal property, for the period of five years from that date. Ira B. Kendrick died in April, 1877; the property insured was destroyed by fire June 18, 1878 ; and the present action was commenced July 11, 1879. A judgment having been recovered against the insurance company, the case comes here upon writ of error. The errors assigned will be considered in order:
First, that the policy became void before the loss occurred under the condition in the policy providing that if the property insured be sold or transferred or any change take place in title or possession, whether by legal process or judicial decree or voluntary transfer or conveyance, the policy should be void. It was insisted that, under this provision, the policy was rendered void because of the death of Mr. Kendrick before the loss occurred, and for the farther reason that by the will of the deceased a complicated disposition of his real estate had been made, all of which changed the title, rendering the policy void.
Whether the death of a person insured before a loss occurred would render void the policy, we are not called upon to determine in this case. By the terms of the policy the loss was made “payable to Chester Downer of Sharon, Yermont, as his mortgage interest may appear,” and under such a provision the mortgagee could not be cut off from the protection which the policy afforded him, by the death of the person to whom the policy was issued.
Second, that the plaintiff in error was released from all liability because this suit was not commenced within twelve months next ensuing after the loss occurred, according to the provision of the policy. I certainly have serious doubts whether the policy and law of the State, fixing a period within which actions may be commenced, can so easily be sot aside by the agreement of parties at the time of entering into contract. It appears however that after the death of Mr. Kendrick there was considerable delay in the appointment of an administrator, and it was not until April 19, ISIS, that the present administrator was appointed. Proofs of loss were on the same day made out and forwarded to the company, which a few days later acknowledged the receipt thereof and asked for a detailed statement of the property destroyed. This was promptly made out and sent forward, and on the 19th day of May the company acknowledged having received them on the 8th, and that they had been passed over to the adjuster of the company, who had the other papers in the case.
On May 29th the attorney representing the claimant under the policy wrote the company quite fully as to the cause of the delay, offering to furnish any farther information desired, and asking that the loss be adjusted within the year, given by the policy, in which to sue. In reply to this letter, the general agent of the company, under date of June 2d, informed the attorney of the parties in interest that the whole matter of the loss had been referred to the company’s adjuster who would be governed by instructions from New York, and added, “ "What action they will take I am not at present advised. And as they have sixty days from receipt of proper proofs of loss before the claim matures, we may not hear their decision for some days. The questions will be considered by the examining committee of the company.”
Without farther citations from, or reference to, the evidence, it sufficiently appears that the company did not consider or treat the policy as having been forfeited or void for any ■cause, and the company having received the proofs of loss a reasonable time before the expiration of the twelve months after the date of the loss, could not retain them until after that time, and thus cut off the right of the insured to his remedy at law. The fact that the company had sixty days after due notice and proofs of loss had been received would give the company no such right. Fair dealing at least, on the part of the company, would have suggested the propriety of giving the parties interested due notice of the fact that the company had a valid defense and would insist upon it— if the company intended so to do — but not attempt to deprive the parties of their right to test the same in a court of law by keeping silent and retaining the proofs until the time fixed in the policy had expired.
The mortgagee was one of the persons assured within the meaning of the policy (Watertown Ins. Co. v. Grover etc., S. M. Co. 41 Mich. 136), and there may be some question whether his rights could be made to suffer by the delay in the appointment of an administrator and the furnishing of proofs of loss. In no view of this case that may be taken can it be said that the right to bring this action was cut off. The company had the option to rebuild, and until it had determined not to the action could not well be commenced, us the claim did not ripen into a money demand until after that period.
Thirl. It is next claimed that the administrator could not bring this action, as the title to the real estate descended to the heirs upon the death of Kendrick or under the terms of his will. Without passing upon the right of an administrator in ordinary cases, this action has been brought for the use and benefit of the mortgagee, the person to whom ' this loss, it is conceded, is payable under the terms of the policy. There is no force in the objection made upon this point.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
Mrs. Eggemann brought this action to recover an amount of money due her upon a conveyance of certain lands to the plaintiff in error. That an agreement of sale was made, a deed drawn and executed in accordance therewith, which passed into the custody of the grantee, and a check drawn by him for the money consideration to be paid, was not disputed on the trial. The important matter in controversy related to the question of delivery of the deed. Was there evidence tending to show a delivery? That there was such evidence given on the part of plaintiff must be conceded, and the subsequent conduct of the grantee in perfecting Iris mortgage title, under the State certificates, supports the plaintiff’s theory, or else shows that the whole transaction was in pursuance of a plan adopted by Martz to enable him to get possession of the part-paid certificates.
An examination of the record fails to show any error committed in the charge of the court, of which plaintiff in error could complain. Nor do we discover any error in the rejection of the foreclosure proceedings. The record does not show when such proceedings were commenced or what part they could play in the question as to whether there had been a delivery of the deed or not, and we are not'satisfied that such proceedings could be shown for any purpose in this case.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Graves, J.
The circuit judge ruled, against objection, that the declaration was sufficient for the defendant in error to prove a case against the corporation under the act “ to provide for the protection of laborers and persons furnishing material for the construction and repairing of railroads in this State.” The statute is compiled as §§ 2393, 2391, 2395. The ruling was erroneous. The declaration consisted of the common counts; two being repeated with allusions, and nothing more, to the statute, with an added statement of the plaintiff’s title by assignment.
A party must set forth his case if he have one, and where his title to sue is statutory and the right of action depends on a special construction of facts defined in the statute, the declaration, if left to the reasons of the common law, must aver the existence of such facts.’ Unless this is done the defendant may insist that the cause of action relied on is not pleaded and cannot be used as a ground of proof and recovery. The charge brought against him is not the charge the plaintiff is endeavoring to urge and there is no foundation on. thfe record for it. The general counts in assumpsit have no application. They disclose no such cause of action and the law refuses to regard them or any of them as amounting to a symbol of it. Howser v. Melcher 40 Mich. 185 ; Delashman v. Berry 21 Mich. 516; Butterfield v. Seligman 17 Mich. 95; Benalleck v. People 31 Mich. 200; Austin v. Goodrich 49 N. Y. 266 ; Churchill v. Onderdonk 59 N. Y. 134; Bartlett v. Crozier 17 Johns. 449 ; Nickerson v. Bridgeport Hydraulic Co. 46 Conn. 24; Inhabitants of Bath v. Inhabitants of Freeport 5 Mass. 325 ; Drowne v. Stimpson 2 Mass. 441, 444; Pumpelly v. Green Bay Co. 13 Wall. 166 ; Barron v. Frink 30 Cal. 489; Smith v. Curry 16 Ill. 149 ; Moore v. Wade 8 Kan. 390; Hunt v. Hunter 29 E. L. & E. 195; Hopkins v. Mayor etc. of Swansea 4 M. & W. 620. The law may be remedial as to laborers and persons furnishing materials, but it gives the remedy against the corporation, which otherwise would not be liable to them at all, and must therefore be pursued with some degree of strictness.
So long as the claims preserve their original character of demands for labor and materials, and the sole change is one of ownership, no reason is perceived for denying to the new owner, although he may have become such owner by assignment, the right to enforce the demands against the corporation in as ample a manner as the first owner might have done. A contrary construction would often prove very embarrassing, and in certain cases would defeat the purpose of the statute. In case of the first owner’s death, the right would be determined, and possibly-also in cases of insolvency and bankruptcy.
The “ protection ” provided for is confined to “ laborers for and persons furnishing materials to contractors and "subcontractors.” A distinction is clearly marked between those who contract for labor and materials and the persons who actually perform labor and actually furnish materials. The law limits its protection to the one who labors, and does not extend it to the one who merely hires ont the labor of others. But the labor done by a man’s team may be fairly regarded as labor done by him within the meaning of this statute. No right arises to any one ont of its service except to him. Persons in his employment have distinct rights of their own.
The circuit judge permitted the introduction of certain papers which a sub-contractor had issued to laborers as tokens of their service. They are spoken of as time-checks. Their admission against objection was error. According to the record they were hearsay and not evidence against the company.
The suggestion that the road belonged to Bancroft and that the company was merely an agency of his is hardly appropriate. It is repugnant to the theory of the action. The case is against the company, and is brought to fix it with a liability supposed to have resulted from the very fact of its being the owner and builder of the road. If the view which is shadowed forth in this respect is correct, there is ground for contending that the action is misapprehended. It is probable that the intimated relation is not in any strictly legal sense accurate.
The case calls for nothing more. The judgment must be reversed with costs and a new trial granted.
The other Justices concurred.
It was admitted in the case that Bancroft was ostensibly the contractor for building the entire line of • defendant’s road. | [
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Marston, C. J.
Plaintiffs in error were sued in trover for cutting and removing certain timber from off the lands of Daniel B. Harrington. That they were mere naked trespassers was not seriously questioned. They insisted however that the plaintiffs below were bound to show a clear and undisputed title to the lands trespassed on in order to recover. It is sufficient to say that Harrington was in possession under claim and color of title, and this as against a trespasser was sufficient. The validity of the conveyances to him are hardly open to question in the present ease, and we shall therefore express no opinion thereon.
Error is also alleged because the court permitted a witness to use a map of the lands and point out thereon the place where the trespass was committed. Objection was also made to the court’s permitting certain questions to be asked which assumed the existence of facts not proved.
The order in which proofs are introduced cannot ordinarily be subject to review on error, and it cannot always be considered as erroneous for a court to permit questions to be asked, although facts not proven are therein assumed. Such matters in general may well be left to the discretion which a trial judge must exercise, and a court of review would only interfere when there clearly had been an abuse oi such discretion to the prejudice of the party. No such claim could be made in this case.
It was not necessary that a map correct in every respect should have been produced to enable a witness to point out thereon the location of the trespass. It could only be used in connection with the testimony of the witness for the purpose of enabling the jury to understand clearly the facts testified to. So a person in testifying to the lines and boundaries of certain lands, may do so from the knowledge he possesses, even although not a surveyor, or not even having assisted in making a survey or being present when one was made. His want of such accurate knowledge would but go to the weight, not the admissibility, of his testimony.
The court charged the jury that as a matter of law “ plaintiff’s title or color of title and possession and occupation is sufficient to enable him to maintain an.action for the cause alleged in the declaration herein.” To this an exception was taken, and it does not appear that the question as to whether the plaintiff was in the actual possession of the property was submitted to the jury.
"We have carefully examined the record in this case, the ' testimony of the several witnesses, the requests to charge, and the entire charge as given, and fail to find that any question was raised as to the want of actual possession by the plaintiff. Evidence was introduced on the part of the plaintiff tending clearly to show possession and claim of ownership, by cutting timber thereon and in attempting to clear up a portion thereof.
The plaintiff claimed to have purchased the lands from an administrator, to have received a contract therefor, and after-wards an administrator’s deed, dated in June, 1856.
The validity of plaintiff’s title under the probate proceedings, contract and deed, was the controverted question, and also whether, under such a title, the fee not having passed, he could have constructive possession of the premises. Such being the controverted questions, the charge above quoted was given in view thereof. It was in answer to the defendant’s position that to enable the plaintiff to recover he must show that he had the title to the lands. This the court refused, but said that color of title and possession thereunder would be sufficient to enable the plaintiff to recover. This was correct as against a mere naked trespasser. The court did not intend thereby to withdraw from the jury the question as to whether the plaintiff in fact was in the actual possession, claiming title thereto at and previous to the time of the alleged trespass. And undoubtedly had the attention of the court been directed thereto, the jury would have been told that it was for them to find whether the plaintiff was in possession of the premises. The court did not take that fact from the jury, and they must have found that plaintiff was in possession before they could render a verdict in his favor under the charge.
It follows that the judgment must be affirmed with costs.
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Moore, J.
Mary P. Barnes made a will by which she devised to the World’s Gospel Union certain real estate. Later she made a codicil by which she gave certain of her property to George S. Eisher, in trust for the Gospel Missionary Union. As the terms of the codicil have been met they do not require consideration in this case. Later Mrs. Barnes became incompetent, and the probate court appointed Thomas Pettitt as the guardian of her person and estate. He sold the lands that were devised to the World’s Gospel Union, and used a part of the proceeds for her support. Mary P. Barnes died later, and the will in question was probated, and the money in the hands of her guardian was turned over to the executor and is a part of her estate. The probate court allowed the World’s Gospel Union the residue of the proceeds of the sale of the land that had been devised to it. Henry N. Johnson, a brother and an heir at law of deceased, appealed therefrom to the circuit court, and the circuit court found that the World’s Gospel Union was not entitled to any of the money; that the sale of the land revoked the will; and from said decision the World’s Gospel Union have appealed.
Defendant and appellee contends:
(1) That by the terms of the. will of Mary P. Barnes the devise to the World’s Gospel Union is a specific devise.
(3) That by the transfer of the property specifically devised to the said the World’s Gospel Union prior to the death of the said Mary P. Barnes and the conversion of the same into money, it would be an ademption of the same.'
(3) That the acts of the guardian of Mary P. Barnes were her acts in law.
We cannot agree with these contentions or with the conclusion reached by the trial judge, because of certain statutory provisions. When the will was made Mrs. Barnes was the owner of the land described in the will. The will was never in fact revoked. It was afterwards probated. The sale of the lands was brought about because Mrs. Barnes became insane, and it was deemed necessary to appoint a guardian and sell the land for her maintenance. Section 8719, 3 Comp. Laws, provides for the management of estates of wards and for the sale of real estate when the conditions stated in the statute arise. Section 9141, 3 Comp. Laws, provides that when the income of the estate of any person under guardianship is not sufficient to maintain the ward the guardian may sell his real estate upon obtaining a license to do so. Section 9148, 3 Comp. Laws, provides for the application of the proceeds of the sale for the support of the ward, etc.
Section 9145 reads as follows:
“ Sec. 5. In every case of the sale of real estate, as provided in this chapter, the residue of the proceeds, if any, remaining upon the final settlement of the accounts of the guardianship, shall be considered as real estate of the ward, and shall be disposed of among the same persons, and in the same proportions as the real estate would have been, if it had not been sold.”
It is clear that, if the real estate described in the'will had not been sold, the terms of the will would have governed. We think it equally clear that, as it was sold, but the proceeds were not all used, the residue should be considered as real estate and be disposed of the same as though no sale had been made.
Judgment is reversed, and the division of the residue as made by the probate court may stand.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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Hooker, J.
The declaration in this cause alleges that plaintiff was a sectionman on the defendant’s railroad; that his crew was ordered to the scene of an accident to aid in putting some derailed cars upon the track and restoring the road, which was out of repair by reason of the accident; that said accident called for the presence of certain superior officers of defendant, including its roadmaster, Burns, to assist in restoring the track. Plaintiff’s crew ran the hand car to a 'point a few feet from, and in front of, the engine belonging to the train that was derailed, and, after removing some plank from a flat car attached to the engine, the hand-car crew, at the direction of the plaintiff’s section foreman, proceeded to take the hand car from the track, plaintiff being upon the track with his back towards the engine; and while so engaged the roadmaster, without advising or warning plaintiff of his intention or purpose to do so, directed the engineer to move the same toward the plaintiff, whereupon he did so and injured the plaintiff. It further alleged: That it was the duty of defendant and said roadmaster:
(1) Not to have given directions to the engineer to move the engine toward the plaintiff while he was in a place of danger therefrom.
(2) Not to do so without advising or warning the plaintiff of such direction.
(3) Not to have assumed the direction and control of the movement of said engine without advising and warning plaintiff of such fact.
(4) To have advised and warned plaintiff of his intention to move such engine toward plaintiff before giving such direction.
That defendant was careless, negligent, and wrongful in the discharge of its said several duties in the following particulars:
(1) In that the roadmaster gave such direction while plaintiff was in a place of danger.
(2) In doing so without advising or warning him of such direction.
(3) In assuming the direction and control of the engine without advising and warning plaintiff of his direction.
(4) In failing to advise and warn plaintiff of his intention and purpose to direct the engineer to move the engine toward him before giving such direction.
The defendant demurred on several grounds:
(1) No negligence alleged.
(2) If negligence alleged, it is shown to have been act of fellow-servant of plaintiff.
(3) The action of the roadmaster was not the proximate cause of the injury.
(4) The declaration omits to allege knowledge by road-master that plaintiff was in a place of danger.
(5) That the risk of the danger causing the accident was assumed by plaintiff.
(6) That the declaration omits to show that it was any part of his duty or authority to direct the movement of the engine, ana therefore defendant is not responsible.
(7) That plaintiff was guilty of contributory negligence.
The demurrer was sustained, and plaintiff has appealed.
This cause being before us on demurrer, the declaration must be considered more critically than if defendant had gone to trial upon a plea to the merits. If it does not, upon its face, affirmatively show actionable negligence by defendant’s roadmaster, the demurrer was properly sustained.
The gist of plaintiff’s complaint is that the roadmaster directed the engineer in charge of the engine to move the same when the plaintiff was in a place of danger, i. e., a few feet in front of the engine upon the tracks and with his back toward the engine. Without intimating that circumstances might not be such as to make an order to move an engine negligent, we cannot say that an order to move an engine is negligent on the part of the foreman, when there is nothing to prevent the free and ready escape of the person in front of the engine from the track, and where there is nothing to indicate danger to him more than his presence on the track.
We have held that a foreman has a right to suppose that an engine will not be moved without a warning from the engineer, and when it is, and the person injured from the want of care in managing the engine, or without the usual warnings, if a fellow-servant of the engineer, must recover his damages from him, and cannot recover from the company. The engineer generally acts upon orders; but ordinarily the one giving or delivering the orders is not expected to see that the track is clear of all persons before communicating such orders to the engineer. The latter must use care in complying with his orders, and his failure to do so cannot be charged to the one who gives the orders to move his engine, unless the customary care would not be commensurate to the danger and the circumstances such as to make it the duty of the superior officer to know of the extraordinary danger. The declaration is defective under the decision in the case of Burrman v. Railway, 143 Mich. 689 (107 N. W. 709).
We held, in Williams v. Raper, 67 Mich. 427 (34 N. W. 890), that—
_ "A declaration should set out the facts which constitute his cause of action, logically and in their natural order, showing his right, the injury, and the consequent damage, and, if such pleading does not disclose a cause of action, no evidence can be introduced in support of it.”
This declaration does show that the engineer ran his engine against plaintiff, when moving it upon orders re ceived from the roadmaster; but there is no allegation of fact indicating that the order was negligent or improper. Not only does the declaration contain no such allegation, but it does not state that the customary signals were omitted by the engineer, which we mention as a significant, though perhaps not a controlling, fact.
The judgment is affirmed.
Ostrander, Moore, and Stone, JJ., concurred. | [
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Ostrander, J.
The court below dismissed the bill of complaint, reserving in the decree the right of the complainant to obtain a reconveyance of the land under the provisions of sections 141-143 of the general tax law (1 Comp. Laws, §§ 3960-3962) within 30 days after the final determination of the cause.
The complainant is the owner of certain premises which were returned delinquent for the taxes for the years 1904, 1905, and 1906, and in due course decrees passed to the auditor general for the sale of the land for the taxes of the years 1904 and 1905, and it was offered for sale in May, 1907, for the taxes of 1904. There being no purchaser, it was bid to the State. It was not redeemed, and in May, 1908, was again offered for sale for the taxes of 1905, and again bid to the State. The annual tax sale in the year 1908 was begun at the county treasurer’s office on May 5th and was continued to and including May 21st, on which day the county treasurer prepared and filed his report of the said annual tax sale. May 15, 1908, the defendant Miller applied to the auditor general to purchase the State’s interest in the property, and he deposited with the auditor general the amount of money necessary to purchase from the State for the taxes of 1904 and 1905, and also sufficient money to pay the taxes which had been assessed against the property for the year 1906. Interest was computed upon the taxes to and including the said month of May. Later the auditor general issued his deed to defendant Miller, who, in July, 1908, gave the required notice to complainant, who claims that the service of the notice upon her was the first information she had that the land had been delinquent for taxes and had been sold. On the 17th of August, 1908, she applied to the auditor general for a cancellation of the sale to Miller and asked to be permitted to pay all the taxes unpaid against the land, with interest and charges thereon up to and including the month of August, 1908, and she tendered to the auditor general a sufficient sum of money. Among the reasons asserted for such cancellation is the one now relied upon, which is that the application of Miller was received during the progress of the annual tax sale in the county and was made void by the provisions of sections 70 and 84 (1 Comp. Laws, §§ 3893, 3907) of the general tax law. The auditor general refused her demand, stating that he did not sell the land during the continuance of the county treasurer’s sale, but held the application of defendant Miller and his money until the county treasurer reported the land unsold at said tax sales, after receiving which report he consummated the sale to Miller and issued his deed. She thereupon filed her bill in this cause, in which she charges that the sale to defendant Miller is void because made contrary to the provisions of sections 70 and 84 of the general tax law, and prays for a decree canceling and setting aside the sale and the tax deed issued pursuant thereto, and permitting her to pay and discharge the said delinquent taxes. The defendants answered, but at the hearing produced no testimony.
While counsel for the defendants have discussed the right of the complainant to maintain this suit, we consider only the question whether the mere fact that the defend ant applied to purchase this land and deposited his money with the auditor general, during the time the tax sales were in progress in the county of Bay, rendered the sale to defendant Miller void. It is true that the answer of the auditor general in which he alleges that the sale was not consummated until he had received the report of the county treasurer, which showed that no person had bid for this land at the sale conducted by the county treasurer, is not evidence of the fact. It is also true that the deed issued to defendant Miller was not in evidence, and the exact date thereof is not proven. It is also true that the complainant has not shown that the sale was consummated before the 21st of May. It is charged in the bill of complaint, upon information and belief, that the State deed to Miller was issued on June 10, 1908. This is admitted by the answers of the auditor general and Miller. There is no reason to doubt the proper performance of official duty by the auditor general, and if we assume, as his answer states, and as we think we should do, that he merely delayed or held in abeyance the application of defendant Miller until such time as it appeared that there had been no bidder at the county treasurer’s sale, and then treated the application as a continuing and valid one, no reason is perceived for holding that the sale was void, or even irregular. We are not required to say that the auditor general is bound to return all applications and all money made at his office during the progress of the various tax sales in the county. As between two persons applying to purchase the same land, one of whom made a bid at the county treasurer’s sale and the other at the auditor general’s office, there seems to be no question that the bid made at the county treasurer’s office would be accepted and the bidder awarded the land. No question of priority is involved here.
Counsel for complainant have called attention to various decisions of this court, in which it is held that the duties of the auditor general in issuing deeds are ministerial, and that the rights of an intending purchaser attach at the time he makes his application and deposits the proper amount of money.' Those decisions have no application. They are cases where either the right of priority between individuals was in question, or the effect of a statute or amendment to a statute taking effect later than the date of the application was considered.
The decree is affirmed, with costs.
Hooker, Moore, Blair, and Stone, JJ., concurred. | [
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Brooke, J.
(after stating the facts). We cannot agree with the claim of defendant that plaintiff was, un der her own testimony, guilty of contributory negligence as a matter of law. If her testimony is to be believed, she acted with ordinary prudence. Under all the testimony, it was, at most, a question of fact for the determination of the jury under proper instructions, which were given.
With reference to defendant’s negligence, the court charged the jury as follows:
<c It [the automobile] entails on the man or woman who runs it the duty of keeping it under control, especially at the street intersections, and not to run it at a rate of speed which would be dangerous or which would contribute to its getting from under his control. * * * He [defendant] was bound to use just such ordinary care, prudence, and caution as the ordinarily prudent man would have used under such circumstances. This duty includes the duty of having his automobile under control when approaching and passing street intersections, and of operating it at such a speed as is reasonable and proper, having regard to the traffic conditions of the street and the safety of the people.”
It is most strenuously urged by defendant that the charge as a whole does not define the issues of negligence, nor limit the jury to the consideration of the specific negligence charged in the declaration. We think the portion of the charge quoted above, taken together with the definition of negligence in another portion thereof, and the repeated admonition of the court that the plaintiff could recover only if she convinced the jury by a preponderance of the evidence that she was free from negligence and that her injury resulted from the negligent act of the defendant, fairly instructed the jury upon the law involved in this phase of the case. In her declaration plaintiff set out that she was injured—
“ By having her general nervous system severely shocked, her head and shoulders and back severely strained and wrenched, and thereby causing curvature of the spine, and her right arm and hand severely injured, and also inflicting other painful and severe injury to the body and abdomen, and thereby so bruising plaintiff in her left side as to cause a swelling or abscess, of a tumorous nature to form, which, has caused plaintiff to suffer,” etc.
It will be noted that no claim is made in the declaration that plaintiff had suffered an injury to her legs. Upon her direct examination she testified as follows:
“Then I had nervous chills, hundreds of them. I shook just like a leaf day after day and formed a large lump under my right knee. It remains there yet, and my feet are numb. They are just like no feet, just as if they were coming to from being asleep.”
Plaintiff’s husband, on direct examination, testified:
“When I was giving her a bath, I discovered those lumps under her knee. They were under one knee. They were about as large as the bottom of that tumbler and oval, and on the other one was about the size of a guinea egg, a walnut, or something of that kind.”
Dr. Reynolds, plaintiff’s physician, also upon direct examination testified:
“Q. Now, with reference to the leg, let me call your attention. Did you discover anything under her knee ?
“A. There is a bunch there I think. I was thinking there might be two, but I guess there isn’t but one.
“ Q. What was that caused from, Doctor, if you know ?
“A. Well, it is an enlargement of a gland, but I don’t know what caused it in this case. It might have been an injury and might not.”
All the foregoing testimony seems to have been admitted without objection on the part of the defense.
When the proofs were closed, however, defendant preferred the following request:
“ (14) No claim is made in the declaration of damages for injuries to plaintiff’s knees; hence no damages can be awarded for such injuries.”
This request was refused, and the court charged:
“ The damages claimed by the plaintiff in her declaration are for the pain and suffering from the time of the injury up to the present time, whatever she may have suffered physically and mentally, by reason of her injuries or the nervous condition from the time of the accident up to the present time she is entitled to recover for if you find for the plaintiff.”
We think this instruction erroneous. It has been repeatedly held that recovery may not be had for injuries not pleaded. Fuller v. Mayor, etc., of Jackson, 92 Mich. 201 (52 N. W. 1075); Hally City of Cadillac, 114 Mich. 99 (72 N. W. 33). It cannot be said, as claimed by plaintiff, that in making up their verdict the jury were not influenced by this testimony. At the time of the trial the swellings beneath the knees afforded practically the only external evidence of plaintiff’s injury.
Defendant’s 15th request, as to the credibility of witnesses, was in proper form, and should have been given. Knowles v. People, 15 Mich. 408; Hamilton v. People, 29 Mich. 173; O'Rourke v. O'Rourke, 43 Mich. 58 (4 N. W. 531); Gerardo v. Brush, 120 Mich. 405 (79 N. W. 646).
The judgment is reversed, and a new trial granted.
Bird, C. J., and Ostrander, Moore, and Blair, JJ., concurred. | [
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McAiway, J.
The claim in dispute in this case is for services rendered by claimant and his wife for Mrs. Reidy, amounting to $730, $355 of which is for services by plaintiff’s wife before the death of Mr. Reidy, and the balance, $375, for services by claimant and his wife for Mrs. Reidy after Mr. Reidy’s death. The larger part of the charges is for the claimed services of claimant’s wife in the nature of domestic services and nursing; the latter rendered both to Mr. and Mrs. Reidy.
Michael Reidy and his wife, Emma, owned and occupied a two-story brick building in the village of Corunna. The ground floor was used for a drug store and the second story as a residence by them. Mr. Reidy died March 20, 1907. Mrs. Reidy died December 26,1908. The claim in dispute was presented to the commissioners on claims in said estate, and allowed but with slight deduction. The administrator appealed from such allowance to the circuit court. The case was tried before a jury in the circuit court and a judgment recovered by claimant for $622.68, which includes some interest. On account of errors claimed to have been committed upon this trial, the administrator has brought the case here by writ of error.
The facts necessary to be stated are: That Mr. and Mrs. Reidy lived at the place mentioned, and for many years an intimate friendship existed between them and plaintiff’s wife. From her earliest childhood she spent much of her time with them. They had no children and the girl was at their home daily, staying frequently all night, and always doing little services about the house and store up to the time of her marriage. This was known to her parents and permitted by them, and no charge was ever made or expected as payment for what she did. The two families lived near each other and there was a path across lots between their homes. No demand was ever made of Mrs. Reidy for the services set forth in the claim in suit, and no charge was ever made by claimant at the time services were rendered.
The argument of contestant and appellant considers the claim under two divisions.
(1) Claims for services rendered before Mr. Reidy’s death.
(2) Claims for services rendered after his death.
He urges that in each case it was necessary to show an express contract. A motion was made by contestant to take both classes of claims from the jury for the reason that no express contracts were shown.
Whatever contracts or agreements were entered into with Mrs. Reidy, relative to the nursing and domestic services charged for, were made with his wife acting for him, and were proved by her testimony alone. Claimant also testified in the case stating that he knew of these services rendered by his wife, and looked to and relied upon Mrs. Reidy to pay him, and to no one else. The testimony of both these witnesses was admitted over the objection and exception of appellant, on the ground that both were incompetent witnesses under the statute (section 10212, 3 Comp. Laws, as amended by Act No. 30, Pub. Acts 1903); the claimant, because such matters were equally within the knowledge of the deceased; and his wife, because she acted as his agent in making the contracts involved in this suit.
The court not only overruled the objections made and refused later to strike out the wife’s testimony, but directly charged the jury that they must find an express contract from the evidence in the case between Mrs. Reidy and claimant’s wife, relative to charges for nursing Mr. Reidy, to charge her individual estate for such services or claimant could not recover; thereby recognizing the agency of claimant’s wife. The court was in error. The wife was not a competent witness to testify as to these contracts. Gustafson v. Eger, 132 Mich. 390 (93 N. W. 893); Finn v. Sowder’s Estate, 139 Mich. 623 (103 N. W. 177); Locklund v. Burman’s Estate, 146 Mich. 233 (109 N. W. 255), and cases cited.
The court was also in error in allowing claimant to testify relative to his knowledge that his wife performed the services for deceased as set forth in his claim, which must have been equally within the knowledge of the deceased; and also to answer the question, “To whom did you look and rely for pay for those services,” and all other testimony of like character given by him. This rule is so well established by the numerous decisions of this court in construing this statute that citations are unnecessary.
The claim for services rendered during the lifetime of Mr. Reidy was, under the circumstances of this case, not a valid claim against the estate of Mrs. Reidy. There is no evidence in the case to make it such. She was at the time a married woman, and the claimed contract was not relative to her separate estate. It was a debt of the hus band. Buck v. Haynes’ Estate, 75 Mich. 397 (42 N. W. 949). The proof of claims accruing after the husband’s death against this decedent’s estate depended entirely upon the testimony of the claimant’s wife. The question of her competency covers all of her testimony, and left such claims not proved. Some other questions are presented, but do not require discussion.
For the errors pointed out, the judgment of the circuit court is reversed, and a new trial ordered.
Ostrander, Hooker, Moore, and Brooke, JJ., concurred. | [
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Moore, J.
This is a certiorari proceeding brought for the purpose of reviewing the action of the circuit judge in granting a writ of mandamus directing the respondent to issue an order for the salary of the petitioner.
Counsel for appellant says in his brief:
“ About the only question the respondent desires passed upon in this matter is whether or not the drain law as passed by the legislature in the year 1909 affects drain commissioners who were continued in office by virtue of the same act. The circuit judge has determined that the salary as fixed by. the board of supervisors is the sum of |800 per annum and the relator is not appealing from that finding. * * *
“Therefore the sole question which the court is asked in this hearing to determine is whether or not the drain commissioner, continued in office by the act of the legislature, is entitled to salary during the year 1910.”
The questions presented require a construction of Act No. 118 of the Public Acts of 1909. This act amended the so-called “drain law” of the State. When it took effect in September, 1909, the petitioner was county drain commissioner for Calhoun county. His compensation at that time was by the receipt of fees. Section 1, chap. 2, of the act provides for the election of a drain commissioner on the Tuesday succeeding the first Monday in November, 1910, and each second year thereafter, whose term of office should commence January 1st following the election. Section 2, chap. 2, provides that all county drain commissioners holding such office on December 31,, 1909, shall continue to be such commissioners, until their respective successors are elected and qualified in accordance with the provisions of section 1. Section 5, chap. 9, reads:
“ Sec. 5. Each county drain commissioner shall receive an annual salary to be paid as other county officers are paid, the amount thereof to be fixed by the board of supervisors at its regular October session in the year nineteen hundred nine, and every two years thereafter, in the same manner as the salaries of other county officers are fixed.”
Acting under the provisions of this section, the supervisors, in October, 1909, proceeded to fix the salary of the relator. It is now claimed this action was in violation of the provisions of the Constitution, which does not permit the increase or decrease of the salary of a public officer after election and appointment. As the law stood when Act 118 was enacted, the petitioner’s term of office would have expired December 31, 1909. His term of office from January 1, 1910, until January 1, 1911, was by virtue of the provisions of section 2, chap. 2, of said act, coupled with the fact that he was drain commissioner on December 31, 1909. The fact of who should be drain commissioner for 1910 was determined by the fact of who occupied that position on December 31, 1909. This was a date subsequent to the date when the salary was fixed by the board of supervisors.
The case is not within the constitutional inhibition.
The action of the circuit judge is affirmed.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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Per Curiam.
This proceeding is brought here by writ of error. We have before us what purports to be a record. It has never been certified to this court in any form by the trial judge, nor has a judgment ever been' entered.
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Stone, J.
The plaintiff is a corporation organized and existing under the laws of Michigan, owning and operating a gas plant in the city of Petoskey. The defendant is a municipal corporation organized under the laws of this State for the incorporation of cities of the fourth class.
This action was brought to recover for certain taxes paid under protest. The declaration consists of a special count in assumpsit, and the common counts. At the trial and after an opening statement made by plaintiff’s attorney, and as soon as the first witness for the plaintiff was sworn, the defendant’s counsel objected to the introduction of any evidence under the special count for the following reasons:
First. The protest set forth, which is the foundation of the claim of the plaintiff, does not show an illegal assessment.
Second. At the time this action was commenced the council of the city of Petoskey had neither rejected the claim of the plaintiff, nor had it had a reasonable opportunity to investigate and pass upon it.
In his opening statement to the jury counsel for plaintiff said:
“As you probably know, the city of Petoskey operates under what is known as the law governing cities of the fourth class. The taxes are assessed by the city assessor; they are returned by the city assessor to the board of review and equalization, on the third Monday in May, which, in 1909, was the 17th of May. The city assessor in 1909 assessed the personal property of the gas company at the sum of $27,000. This assessment was returned to the board of review and equalization at that sum. On the day when the board of review and equalization was to hold its first meeting, Mr. Wells, who is the manager of the gas company, came here to the city hálito discover what the assessment against the property of the company was. I think he came here a few minutes before the board of review and equalization were actually in session; but he did see the city assessor, and either the city assessor told him, or else he saw on the books, that the assessment against the personal property was placed at $27,000. That was the same amount at which it had been assessed the year previous, and the company found no complaint with that assessment. Prior to this time, of course, the board of review had published its notice of meeting in the paper, as required bylaw. Being satisfied with the assessment at that sum, he did not think it necessary to appear before the board of review further, and did not appear before the board of review. The board of review continued its sessions from the 17th day of May to the 24th day of May. On the 22d day of May, which was Saturday, the board, on motion of one of its members, raised the assessment of the company from $27,000 to $42,000 — a raise of $15,000. Neither Mr. Wells, nor any other person for the company, was given any notice that this raise was contemplated by the board; and so far as we know, there were no investigations made as to the value of the personal property. The company had no knowledge whatsoever that this raise had been made, and supposed that the assessment still remained at the sum of $27,000 until on or about the 6th of December, 1909, when Mr. Wells went to the city treasurer’s office to ascertain the amount of taxes that the company would be called upon to pay this year, and there, for the first time, learned that the assessment had been raised to the sum of $42,-000. Of course it was too late to consider the question with the board of review at that time, so the company, on January 6, 1910, within the time limited, paid these taxes on its personal property, under protest.”
During the discussion of the matter, the attorney for the plaintiff further stated:
“I understand that he (Mr. Wells) came up the first day they were to be in session, and was informed that the assessor was upstairs, and he came up and found the assessor, but the board of review had not been called.”
The court sustained the objections of the defendant, and directed a verdict and judgment for defendant. The ruling was excepted to by plaintiff, and the questions are properly raised by assignments of error.
It is the contention of the defendant that the law, applicable in this case, permits the raising of an assessment by the board of review, without other than the published notice, and that the assessment here was legal. We shall first consider this question, for if it shall turn out that the tax was legally assessed, the plaintiff has no standing in court, and the conclusion reached by the circuit judge was correct. Sections 3322 and 3323, 1 Comp. Laws, are controlling here. We quote section 3322 in full, viz.:
“ The supervisors of the several wards, the mayor, and the city attorney, shall constitute a board of equalization and review of the general assessment rolls of the several wards of said city, a majority of whom shall constitute a quorum for the transaction of business, but a less number may adjourn from day to day. They shall have power, and it shall be their duty, to examine said assessment rolls, and they shall have authority to, and shall, correct any errors or deficiencies found therein, either as to the names, valuations or descriptions; and of their own motion or on cause shown, may reduce or increase the valuation of any property found on said rolls, and to add thereto any taxable property in said city that may have been omitted, and to value the same; and to strike from said rolls any property wrongfully thereon, and generally to perfect said rolls in any respect by said board deemed necessary and proper, for which services such members of said board shall receive two dollars per day while actually employed. If on such examination they shall deem the valuation of the several wards to be relatively unequal, they shall equalize the same by adding to or deducting from the total valuation of the taxable property in any ward such an amount as, in their judgment, will produce relatively an equal and uniform valuation of the real estate in the city; and the amount added to or deducted from the total valuation in any such ward shall be so stated in the certificate attached to the assessment roll of such ward; and all taxes for State, county, school, general city, and sewer purposes shall be apportioned according to said equalization, in the manner hereinbefore provided, and said equalization shall not be changed with regard to the relative valuation of the several wards of said city, and the board of supervisors of the county in which said city is located shall equalize such .city as a unit the same as a township is equalized, and any amount added to or deducted from the total valuation of such city as a unit, shall be apportioned by the clerk of the board of supervisors among the several wards according to the equalized valuation of the real property in each ward as fixed by the city board of review.”
The next section provides that the board shall meet on the third Monday in May after notice of the meeting by the city clerk; at which time and place the several supervisors shall submit to said board their respective general assessment rolls. It provides for the organization of the board and that they shall continue in session at least four days successively, and as much longer as may be necessary to complete the review, and that any person or persons desiring to do so, may examine his, her or their assessment on said rolls, and may show cause, if any exists, why the valuation thereof should be changed, and that the said board shall decide the same and their decision shall be final. They may examine on oath any person touching the matter of his or her assessment, and keep a record of their proceedings, and all changes made in the rolls. The amount added to or deducted from the total valuation in each ward shall be entered upon such record, which record shall be deposited with the city clerk, who shall be clerk of the board. Said board shall have the same powers, and perform the same duties in all respects, as boards of review of townships, in reviewing and correcting assessments made by the supervisors of townships, except as in the act otherwise provided. It is worthy of note, that unlike boards of review in townships, this board holds but one session or meeting, to wit, the one commencing on the third Monday of May.
We think that there can be no doubt of the power of this board to raise valuations of property, of their own motion. They have—
“Authority to, and shall, correct any errors or deficiencies found therein, either as to names, valuations, or descriptions; and of their own motion, or on cause shown, may reduce or increase the valuation of any property found on said rolls, and to add thereto any taxable property in said city that may have been omitted, and to value the same.”
This statute makes no provision for any notice otner than the general notice which the statute gives, and that given by the clerk generally.
Ini Cooley on Taxation (3d Ed.), at pages 778 and 779, that author says:
“Sometimes the board has not jurisdiction to change the valuation except upon complaint or application; but frequently the board has power to make alterations of its own motion.”
These are clearly proper matters for statutory regulation. The eminent author last quoted says, at page 782:
“ Where a statutory board of review holds stated meetings, with power to increase assessments, everybody is notified of the fact, and is warned to attend if he deems it important; and it is often held that under such circumstances special notice of the raising of a particular assessment, or of the adding of omitted property, need not be given.”
The author cites cases in United States Supreme Court, in Arkansas, California, Illinois, Indiana, Missouri, New York, Oregon, Tennessee, and Michigan.
In Detroit Citizens’ St. Ry. Co. v. Common Council of Detroit, 125 Mich. 673 (85 N. W. 96, 86 N. W. 809, 84 Am. St. Rep. 589), it was decided that the common council, sitting as a board of review, was not required to notify appellant to attend when it was considering appeals from the board of assessors, and that, if appellant desired to be heard it should have been present and requested it.
In Township of Caledonia v. Rose, 94 Mich. 216 (53 N. W. 927), it was held that a taxpayer who fails to appear at the time and place provided for the board’s sessions is estopped from attacking the assessment.
It was said in Hinds v. Township of Belvidere, 107 Mich. 664 (65 N. W. 544), that a taxpayer must be presumed to know the powers and duties of the board of review, and the time fixed by statute for its meeting, and that he cannot excuse his failure to appear before that body by showing that he was out of the State at the time.
In Michigan Savings Bank v. City of Detroit, 107 Mich. 246 (65 N. W. 101), it was held that boards of review are the proper tribunals for the correction of unjust assessments, and that parties will not be heard in the courts, until they have exhausted their remedy before these tribunals. See, also, First Nat. Bank of St. Joseph v. Township of St. Joseph, 46 Mich. 526 (9 N. W. 838); Williams v. City of Saginaw, 51 Mich. 120 (16 N. W. 260); Comstock v. City of Grand Rapids, 54 Mich. 641 (20 N. W. 623); Peninsula Iron & Lumber Co. v. Township of Crystal Falls, 60 Mich. 510 (27 N. W. 666); Detroit River Sav.Bank v. City of Detroit, 114 Mich. 81 (72 N. W. 14); Traverse Beach Ass’n v. Township of Elmwood, 142 Mich. 78 (105 N. W. 30), 142 Mich. 297 (105 N. W. 768). Many more cases might be cited to the same effect.
The plaintiff relies upon the case of Avery v. City of East Saginaw, 44 Mich. 587 (7 N. W. 177). That case involved a tax levy under the charter of that city. We have taken some pains to find and examine the charter provisions under which that proceeding was had. Act No. 246 (Laws 1859, tit. 5, §§ 5, 6) is as follows:
“The supervisors of said city shall complete their assessment of all taxable property in said city within such time as is or may be prescribed for the supervisors or assessors of townships by the general law of this State, and upon the completion thereof shall file a notice thereof with the city clerk, who shall report the same to the council at their next meeting.
“Sec. 6. The supervisors, comptroller, treasurer, and city attorney shall constitute a board of review, four of whom shall constitute a quorum. They shall have power and it shall be their duty to examine said assessment and correct any errors found therein, and on cause shown to reduce, equalize, or increase the valuation of any property found on said roll, and to add thereto any taxable property in said city that may have been omitted, and to value the same. They shall meet at such time and place as shall be appointed by the common council, of which time and place notice shall be given by said council at least two weeks prior to the time of meeting, by publishing a notice thereof in some newspaper published in said city, and also by posting the same in three public places in each ward of said city, and shall continue in session at least three days successively, and as much longer as may be necessary, at least six hours in each day during said three days; and any person desiring so to do may examine his or her assessment on said roll, and may show cause, if any, why the valuation thereof should be changed, and the said board shall decide upon the same, and their decision shall be- final; and the said board shall keep a record of their proceedings and all changes made by them in said roll, and their record shall be deposited with the city clerk.”
The general tax law referred to by Justice Campbell in the Avery Case, being section 986 of the Compiled Laws of 1871, made the supervisor the reviewing officer, and provided that:
“On the request of any person, his agent or attorney, considering himself aggrieved, on sufficient cause being shown, to the satisfaction of the supervisor, he shall alter the assessment as to the valuation thereof and he shall also, upon sufficient cause being shown by any credible person on behalf of any other person whose property is assessed, alter the assessment in such manner as shall to him appear just and equal; and to this end he may in either case examine, on oath, the person making the application, or any other person present, touching the matter, which oath the supervisor is hereby authorized to administer.”
As said by Justice Campbell on page 589:
“ The powers of the city board of review are broader in some respects than those of the township assessing officer, because they can enlarge the assessment in some cases. But there is nothing in the charter indicating an intention of allowing this to be done with any less care or responsibility than that required of the original town assessors. The board is to value the property it deals with £ as provided in the general tax law of the State.’ The general tax laws do not allow any change of valuation except on a proper examination, and they allow no valuation to stand, until there has been an opportunity of investigating it on the part of the property owner. The assessment must in the language of the law be ‘complained of,’ which signifies at least some distinct reason to be so suggested that it may be examined into in some responsible way.”
The difference between the provisions of the statute in that case, when compared with the charter provisions we are dealing with, is very striking. In the Avery Case neither the charter nor the general statute gave the power to change an assessment except on cause shown. Neither officers nor board could increase an assessment upon their own motion or initiative, as is the case here. They had not the almost plenary power to deal with the assessment possessed by the board in the case we are considering. The time of the meeting of the board even was not fixed by the statute, as is here the case. We must agree with counsel for the defendant that the Avery Case arose under statutes so different from those now in question, that it can in no sense be said to be controlling. In fact we think that the case is readily distinguished. The dissenting opinion of Justice Marston in that case would probably have been the majority opinion, had the statutes then under consideration been as we find them in this case.
Counsel for plaintiff cites the following cases: Griswold v. School District, 24 Mich. 262; Woodman v. Auditor General, 52 Mich. 28 (17 N. W. 227); Phillips v. Township of New Buffalo, 64 Mich. 684 (81 N. W. 581); Monroe Water Co. v. Township of Frenchtown, 98 Mich. 431 (57 N. W. 268); Common Council of Three Rivers v. Smith, 99 Mich. 507 (58 N. W. 481); Auditor General v. Sessions, 100 Mich. 343 (58 N. W. 1014); Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881).
In Griswold v. School District the charter of Bay City was under consideration, and it was held that the power conferred upon the board of review could only be exercised on the application of a party concerned, and when upon such application they have acted, and reduced a valuation, they could not change it without notice. There was no power in the board under that charter to change a valuation of their own motion, and certainly when they had once acted upon the party’s application they could not alter the determination without notice. In Phillips v. Township of New Buffalo, the doctrine of the last-cited case was applied, when the board had acted on application. We do not think that the case of Monroe Water Co. v. Township of Frenchtown applies here. The plaintiff knew that there was a personal tax assessment in the case at bar. In Common Council of Three Rivers v. Smith it was held that the right to a hearing was one. that the taxpayer could not be deprived of. There the entire assessment of personal property was first entered on the last day of the meeting. Until that time there was no assessment; and it was held that there was no waiver, and the action was without authority under the charter. In the other two cases cited, it may be said to he assumed without question that assessments may be raised by boards of review under the general tax law, or under a charter giving that right without notice, at a proper time, but it cannot be done after the time limited. In the Sparrow Case, where the general tax law applied, it was held that sweeping changes could not be made at the last meeting, on the board’s own motion, and the statute is cited. In the Sessions Case that right was only given during the first five days, by charter, and increase made after the five days was held void, as it clearly should have been.
We are of opinion that none of the cases cited can be held to support the contention of plaintiff, that the assessment here made and tax here levied were illegal. The charter in question provides for but one session, or meeting, unlike the general tax law. The plaintiff did not appear before the board. That body, of its own motion, had the authority to increase this assessment, and the plaintiff should be held to be estopped to complain of the action taken. Having reached the conclusion that, upon this record, the tax levy appears to have been legal, it is unnecessary to consider the other questions.
The circuit judge reached a correct conclusion, and the judgment below will be affirmed.
Bird, C. J., and Ostrander, Hooker, and Blair, JJ., concurred. | [
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Blair, J.
This is an action under the civil-damage law in which the plaintiff seeks to recover for loss of sup port, mental suffering, etc., growing out of the death of her husband in a runaway, which resulted from illegal sales of liquor made by the defendant Phillips. On the trial of the cause the plaintiff offered in evidence the bond given by the defendant George Phillips and his sureties, which said bond had been duly approved by the city council of Kalamazoo and filed with the county treasurer. The court held the bond irregular and' defective and directed a verdict, in favor of all the defendants, of no cause of action. Plaintiff contends that the judgment for the defendants rendered by the circuit court should be reversed, for the following reasons:
(1) The bond is a good statutory bond, and substantially conforms with the form of bond indicated in 2 Comp. Laws, § 5386.
(2) If not good as a statutory bond, it is enforceable as a common-law obligation, and plaintiff should have been allowed to go to the jury under the second count of the declaration.
(3) Because, as a matter of law, the parties defendant were estopped from raising the question of the validity of the bond.
(4) Because the court erred in directing a verdict in favor of all the defendants, i. e., in favor of both the principal and his sureties.
The bond in question is as follows:
“Know all men by these presents that we, George Phillips, as principal, and Edwin Jaseph and John H. Burke, as sureties, are held and firmly bound unto the city of Kalamazoo, a municipal corporation, in the sum of four thousand ($4,000) dollars lawful money of the United States of America to be paid to the said city of Kalamazoo or to its certain attorneys, heirs, executors, administrators or assigns and to which payment well and truly to be made we bind ourselves, heirs, executors and administrators and each and every of them firmly by these presents.
“Sealed with our seal, dated the 24th day of September, one thousand nine hundred eight.
“The condition of this obligation is such that whereas the said George Phillips desires to engage in the saloon business in the city of Kalamazoo, Mich., at 106 East Water street, in said city, now therefore if the said principal, George Phillips, shall conduct the said saloon in conformity with the laws of the State of Michigan, and the ordinances of the city of Kalamazoo relating to saloons, and save harmless the said city of Kalamazoo from all loss or damage in connection or growing out of the suing of said saloon at the place above mentioned, then this obligation is to be void; otherwise to remain in-full force.”
In connection with the bond, plaintiff made the following offer of proof:
“We offer, if the court please, to show that under this bond the principal, George Phillips, conducted this saloon and gave this bond for the purpose of conducting á saloon; that the bond was drawn by the city attorney of the city of Kalamazoo for that purpose; and that the two sureties knew that he was operating this saloon and selling liquor and signed and executed the bond for the purpose of enabling him to sell liquor as a saloon keeper under the general laws of this State.” '
A mere comparison of the bond with the form prescribed by the statute (2 Comp. Laws, § 5386) is sufficient to disclose that the bond in suit is not substantially in the statutory form. The bond was, however, intended to be the bond required by statute by the principal and sureties. It was the duty of the principal to see that a proper bond was furnished. Wolcott v. Judge of Superior Court, 112 Mich. 311 (70 N. W. 831).
The giving of the statutory bond was the condition precedent to the principal’s conducting the saloon business and avoiding criminal responsibility, as he and his sureties understood. They agree in their bond that the principal shall conduct the saloon in conformity to the laws of the State of Michigan relating to saloons, including the provisions of section 5386. By reason of this bond, Phillips was permitted to carry on the business and to accomplish the injury to plaintiff of which she complains, and we think that, under such circumstances, they should be held estopped to question the validity of the bond as a statutory bond. Brockway v. Petted, 79 Mich. 620 (45 N. W. 61, 7 L. R. A. 740); Schullherr v. State, 68 Miss. 227 (8 South. 328); Lyman v. Brucker, 56 N. Y. Supp. 767.
The judgment is reversed, and a new trial granted.
Bird, C. J., and McAlvay, Brooke, and Stone, JJ., concurred. | [
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Moore, J.
The plaintiff sued defendant in an action of trespass on the case upon promises, and gave notice that upon the trial under the money counts he would give in evidence certain notes. One of them was for |1,000, payable to Mrs. J. E. Barnes, guardian, etc., and was dated July 1, 1903. It had on the back of it the indorsement:
“ Pay to the order of J. E. Barnes, Mrs. J. E. Barnes, guardian.”
It also had 11 indorsements showing the interest had been paid up to July 1,1908, and 9 indorsements showing payments upon the principal. One of the notes was for $5,000, dated January 1, 1904, payable to the order of J. E. Barnes, and had many indorsements showing upwards of $1,200 paid upon the principal, and many indorsements showing payment of interest up to July 1, 1908. There was another note for $3,000 and two notes for $2,000 each. All of these notes were signed: “The Spencer & Barnes Company, by J. E. Barnes, President.” Each note had many indorsements showing payments upon the principal, and many indorsements showing payments of the interest up to July 1, 1908.
The defendant did not deny under oath the execution of any of these notes. It pleaded the general issue, and gave notice of several defenses, one of which was to the effect that when the notes were given the payee was president of the company, under a large salary, and owed all his services to the company; that he engaged in outside business under the firm name of Barnes & Robinson, which firm dealt with defendant company. We quote from the plea and notice:
“That by virtue of such sales the said John E. Barnes realized large profits which said Barnes then and there converted to his own use, and which said sums of money the defendant avers lawfully and of right belonged to the defendant, and which said amounts the plaintiff has refused to pay over and account for to the defendant, though the same have often been demanded of plaintiff.
“ The defendant avers that by virtue of such manipulation and by reason of plaintiff’s interest in said contracts with the Spencer & Barnes Company, that the said plaintiff, John E. Barnes, has realized large profits on said contracts, amounting to the sum of $10,000, and said profits lawfully and of right belong to said defendant. That no part thereof has been paid by plaintiff to the defendant, though often requested so to do, and thereby the plaintiff became and is indebted to the defendant in the sum of $10,000.
“ That said John E. Barnes, in violation of his contract obligations to the defendant, as aforesaid, whose president and financial manager he was, made several purchases of timber and timbered lands for his own account ■and not for the account of the Spencer & Barnes Company, as he was under contract and legally bound to do. That said plaintiff, John E. Barnes, scheming and designing to deprive the defendant Of its just share of the profits in said purchases of timber and timber lands, entered into a copartnership with one John Robinson under the firm -name and style of ‘ Barnes & Robinson,’ and also under the name of the ‘ Weesaw Lumber Company, John E. .Barnes, Manager,’ for the purpose of purchasing large tracts of timbered lands located in the county of Berrien, •and for the cutting of the timber thereon and the sale ■ thereof upon the market. * * * Said John E. Barnes '.realized large profits therefrom, the exact amount whereof .is unknown to defendant, but defendant avers that from such sales the plaintiff reaped large profits, to wit, the sum of $10,000. That said profits justly and legally belonged, and do now belong, to the defendant, and, although often requested, the plaintiff has refused and neglected, and still refuses and neglects, to pay the same, or any part thereof, to the defendant.”
Notice was given of the following:
“ That said defendant will insist that said notes and each thereof are null and void.
“ That defendant will insist that said notes, and each thereof, are void because each of said notes was made, executed, and delivered by said plaintiff to himself or to others for his benefit, while president of the Spencer & Barnes Company, defendant, without authority so to do.
“ Defendant will show in evidence that there has been no ratification by the stockholders of the making, execution, and delivery of said notes by the plaintiff, as president of the Spencer & Barnes Company, to himself.”
The plea ended with the following statement:
“You will further take notice that, pursuant to Circuit Court Rule 24c, the defendant hereby waives the benefit of the general issue, and admits the facts alleged in the plaintiff’s declaration (that is to say, defendant admits that, except for the facts set forth in this notice, the plaintiff would be entitled to recover upon the promissory notes set forth in the declaration herein, and waives the neces sity of the introduction of said notes in evidence for the purpose of proving the signatures thereon and the delivery thereof, and waives the necessity of the computation of the amount due thereon), and, hereby relying on the defense herein set forth, this defendant claims the benefit of said Rule 24 in respect to the opening and closing in the taking of testimony and in the argument on the trial of said cause.”
Upon the trial the notes were introduced in evidence, and many witnesses were sworn on the part of the defendant. At the close of the testimony, after hearing arguments of counsel, the circuit judge expressed himself as of the opinion that the defense of invalidity of the notes and of offset could not be urged in an action at law. He said:
“ In this suit, gentlemen, Mr. Barnes is a party on one side and the corporation on the other, and the stockholders are not made parties. I hold equal justice could not be done unless all the stockholders are brought in, and I also hold that so far as offsets are claimed in this case they are matters for a court of chancery for similar reasons, and therefore the plaintiff as far as this action is concerned is entitled to judgment upon the notes.
“A court of chancery may hereafter determine as to what offsets will be allowed to the corporation, and perhaps determine what remedies may exist between the various stockholders of this company. Therefore, as a matter of law, I have come to the conclusion that the plaintiff is entitled to a judgment upon those notes, and that there is no legal defense whatever to the notes. The amount of those notes has been computed and amounts to $20,841.83.”
He directed a verdict for the above amount. The case is brought here by writ of error.
The important alleged errors relied upon are stated by counsel as follows:
“(1) The court erred in sustaining the validity of all the notes sued on (except the note, dated July 1,1903, for $1,000), because each thereof was given without consideration, without authority of the directors, and because the plaintiff as president of the corporation, without specific authority so to do, made the notes to himself as payee.
“(2) The validity of the notes dated January 1, 1904, for $5,000 each, are assailed as invalid because each thereof is without consideration and each thereof purports to be a contract between the plaintiff as president of the defendant corporation and himself as payee; and because there is no authority in the charter, by-laws, or elsewhere for making said notes and no attempted ratification thereof by the directors or stockholders.
“(3) The court erred in permitting a recovery upon the-two notes for $2,000 each, dated July 1, 1905, wherein Z. Dotte Waite, guardian, etc., and Z. Dotte Waite, the plaintiff’s daughter, is payee, because it conclusively appears there was no consideration for such notes; that said notes were wholly unauthorized and ultra vires.
“(4) The note for $2,000 dated July 22, 1905, is void because it is shown by undisputed proof to have been given by the plaintiff to himself on account of the sale of certain logs belonging to plaintiff at Union Pier, Mich., and sold by plaintiff to himself as president of the defendant company. No other officer or person was a party either to the contract of sale or the promissory note in question.
“(5) The note for $3,000 dated December 1, 1903, wherein plaintiff is both payee and maker, is void. It is wholly unauthorized and without consideration. The only action taken by the directors during the year 1903,. referring to dividends, was that all small stockholders be paid the amount of dividends due, 20.2 per cent.
“(6) The fiduciary relation of the plaintiff to the defendant is involved. He was its president and was paid by it for his time and services, and it was his duty to purchase timber, logs, lumber, and timbered lands for and on account of the defendant, and his embarking, against the protest of the other officers, in such enterprises for his individual profit at the expense of the company whose president he was, and in violation of his trust relation and contract of employment, renders the profits so earned and held by him as money had and received for the defendant’s benefit. The court erred in ruling that said moneys could not be recovered by the defendant in this suit.”
Counsel are agreed upon the following:
“Upon the organization of this company there was issued 2,000 shares of preferred stock to B. H. Spencer and 2,000 shares of preferred stock to John E. Barnes; and 1,340 shares of common stock issued to John E. Barnes, and 50 shares of common stock issued to Z. Dotte Ortland, daughter of John E. Barnes. There was issued to B. H. Spencer 1,370 shares of common stock and to his daughter, Mary L. Spencer, 20 shares of common stock, making a total stock issue at par of $67,800. It is thus seen that the stock in this company was owned by these two families, B. H. Spencer and John E. Barnes. Later stock was transferred by B. H. Spencer to other members of his family. In 1899 Frank T. Plimpton became a stockholder in the company, and he has continued as such ever since.
“From the organization of the company in 1896 until 1903 the amount of the stock owned by B. H. Spencer and the members of his family was exactly equal to the amount of stock owned by John E. Barnes and the members of his family. During all this time John E. Barnes was president of the company and as such exercised the powers and performed the duties laid down in the bylaws, and B. H. Spencer was vice president and superintendent and as such exercised the powers and performed the duties provided in the by-laws except as hereinbefore stated. The same board of directors served the company from its organization in 1896 to 1907. These directors were John E. Barnes, B. H. Spencer, and Mary L. Spencer. The latter was secretary and treasurer of the company. She was also head bookkeeper of the company. The business was apparently conducted with little regard for the by-laws.”
The purpose of the corporation is stated in its articles to be “ the manufacture of various kinds of furniture from wood, iron, or brass, as the demands may require.” The preferred stock drew a fixed dividend of 6 per cent. The by-laws provided that the president should have full charge of all the offices and business and should sign all drafts, notes, checks, and contracts and all papers pertaining to the business of the company wherein there was a money consideration making the company liable. They also contained the following provisions:
“The dividends shall be declared on the first day of March after the annual inventory. All profits shall be divided with the preferred stockholders up to six per cent., and the remainder with the preferred and common stockholders share and share alike and shall be paid within sixty days thereafter.”
An annual meeting was held each year. A yearly inventory was taken, and a statement made showing resources and liabilities, and also showing whether the business had been profitable or unprofitable. The action was sometimes somewhat informal as to the declaration of dividends, but there were some entries made upon the books in relation thereto. At the annual stockholders’ meeting February 2,1899, the following action was taken:
“It was moved and carried that small stockholders be paid the 5.8 per cent, which is the per cent, of gain after preferred stockholders’ 6 per cent, is deducted from whole gain.”
At the stockholders’ meeting of January 23, 1900, the following appears upon the minutes, to wit:
“Moved that all stockholders except B. H. Spencer and J. E. Barnes be paid in full 25.35 per cent, which is per cent, after 6 per cent, on preferred stock has been deducted and as all stockholders except B. H. Spencer and J. E. Barnes have always been paid in full the balance is to be divided equally between them, and to be drawn out as business will allow. Motion was carried.”
At the.annual meeting of directors for 1901 the following appears:
“ It was moved that surplus on account of B. H. Spencer and J. E. Barnes be taken up by notes with interest at 4 per cent, per annum from January 1st, 1901, interest payable quarterly. Motion carried. It was then moved that $4,000 of undivided profits be set aside for building account and balance, $3,064.24, be paid in dividends as provided by by-laws. Motion was carried.”
At the annual meeting of the stockholders February 3, 1902, the following appears:
“ Moved by J. E. Barnes and supported by B. H. Spen cer that the notes held by B. H. Spencer and J. E. Barnes bearing 4 per cent, be taken up and new notes be given drawing 6 per cent, interest per annum, payable quarterly. Motion carried. It was then moved that small stockholders be paid 14.11 per cent, dividends in full and large stockholders be given notes, bearing 6 per cent, interest per annum, interest payable quarterly. Motion was carried.”
At the annual meeting of the directors January 30, 1903, the following appears:
“It was moved by J. E. Barnes that all small stockholders be paid the amount of dividends due, 20.2 per cent. Motion carried.”
At the annual meeting of the directors January 30,1904, the following appears:
“ Moved by J. E. Barnes and supported by B. H. Spencer that small stockholders, Irven Spencer and W. S. Waite, be paid as soon as convenient and that notes be made for J. E. Barnes and B. H. Spencer as in previous years. Motion carried.”
At the annual meeting of the directors January 16,1905, the following appears:
‘ ‘ Moved by M. L. Spencer that stockholders be paid dividends due and that Irven Spencer and W. S. Waite be paid five (5) per cent, of the net profits of 1904 as. per agreement as soon as convenient. Supported by B. H. Spencer and carried.”
At the annual meeting of the directors January 24,1907, the following appears:
“It was then moved that stockholders be paid their share of profits on or before March 1, 1907. Motion carried.”
The record is clear that the stockholders and directors were fully advised as to what was done. From time to time the small stockholders were paid dividends in cash. The profits were often shown to be in the form of accounts, notes, and merchandise. Mr. B. H. Spencer and the plaintiff owned the great bulk of the stock, and, instead of being paid cash, as were the smaller stockholders, they were credited the amount of the dividends due them upon the books of the company, or notes were given to them for these amounts.
The record indicates pretty clearly that no one thought that there was anything irregular about the method of making dividends or of paying them. Miss Spencer, who was secretary and treasurer of the company and the daughter of B. H. Spencer, vice president and superintendent of the company, and the two constituting a majority of the directors, testified that not until August, 1907, did she have any knowledge—
“As to what legal authority the president of a manufacturing corporation like Mr. Barnes had in the manner and matter of drawing promissory notes. I was not informed in regard to the limitations upon that power until after this suit was commenced. I did not have knowledge until after this suit was commenced as, to the power or authority of an officer of the company to execute and deliver so-called dividend notes.”
On the cross-examination she testified:
“The books of the Spencer & Barnes Company show that interest was paid on these notes. It is regularly entered upon the books. The interest indorsed upon these notes was entered upon the books of the company. Witness wrote some of the notes and made indorsement for interest on some.”
Witness’ attention was called to $5,000 note, January 1, 1904, and she testifies that was given for a dividend.
“Q. Did you and all the other stockholders of the company receive the same percentage of dividend that those notes were on the stock held by Barnes; that is, were the dividends equal in per cent, of the stock — I mean all the common stock ?
“A. Yes, sir; the common stock all got the same dividend, and the preferred stock all got the same dividend. At the time Mr. Barnes got those two $5,000 notes, my father got two $5,000 notes. They did not hold the same amount of stock at this time, Mr. Spencer had some more. It might have been 60 shares more; it might not have been that much. He had a majority of the stock at that time. He got the same percentage on the stock that Barnes did. His notes were canceled and stock issued to him for them. I would not be positive these were the notes for which stock was issued. His notes were all taken up in this manner by the company, except one note of $1,200. He has received all but $1,200 of the dividends. The other stockholders have all been paid except Mr. Barnes.”
The indorsements on the $5,000 note were identified by witness as all in her handwriting, with the exception of one made by the assistant bookkeeper, Mrs. Clark. Exhibit 3, indorsements made of interest by Mrs. Clark, Mr. Belding, a clerk in the office, and some by the witness. Exhibit 3 was a dividend note. It is dated December 1, 1903.
“Q. That was given for a dividend declared about that time?
“A. No, sir.
“Q. For what was it given ?
“A. Part of a dividend note of, I think, $7,000, and $4,000 was paid. $3,000 was the renewal of the note.
“Q. The other stockholders got the same per cent, of dividends that went into this note; that is, the common stockholders got the same per cent, with each other and the preferred stockholders got the same percent, with each other ?
“A. Yes, sir; that i?, the common stockholders shared with the preferred stockholders after the 6 per cent.
“Q. As far as you were concerned, those dividends were voted in good faith, all of them, were they not ?
“Mr. Gore: That is assuming that they were voted. One of our claims is that they were not voted, and the record don’t show the authority for it. (Objection overruled. To which ruling of the court the defendant by its counsel duly excepted.)
“ The Court: To the witness: Did you understand the question ?
“A. Yes, sir; he asked about voting on the question. I do not think the records of the meeting would say that we did vote on the question.
“Q. The dividends you say that were declared and the notes that were issued, was that done in good faith ?
“Mr. Gore: That assumes what the witness has not said. She has not said dividends were declared.
(Last question read.)
“ The Witness: There is no record of the dividends being declared; but, as far as my action is concerned in writing out the notes, it was in good faith. The records that I kept of the minutes showing the earnings of the company, its assets and liabilities, are correctly shown, and correctly show the profits that appeared by the books to have been made.
“Q. So that when they did show that the profit, or so much remained, that was believed to be so in every case, was it not ?
“A. Yes, sir. At the time this $3,000 note dated December 1, 1903, was given, my father had a majority of the stock; I can’t tell how much either one of them had. The books show that. Notes were issued to my father and to Mr. Barnes at the same time; whenever one got a note the other got one. This was always so, and each for the proportion of the dividend due him according to the computation.”
Though the record does not show that as formal action was taken as would be shown by the records of a carefully conducted corporation, we think it cannot be said that dividends were not authorized and declared. ' It must be remembered that no question of the right of creditors is involved. See 2 Cook on Corporations (6th Ed.), § 534; Hartley v. Pioneer Iron Works, 181 N. Y. 73 (73 N. E. 576); Rorke v. Thomas, 56 N. Y. 559; Beading Trust Co. v. Beading Iron Works, 137 Pa. 282 (21 Atl. 169, 170); McKusick v. Seymour, Sabin & Co., 48 Minn. 172 (50 N. W. 1116); Pennsylvania Iron Works Co. v. Mackenzie, 190 Mass. 61 (76 N. E. 228).
A resolution will be construed as equivalent to a declaration of a dividend where any other construction would amount to an illegal preference among the stockholders. Redhead v. Iowa Nat. Bank, 127 Iowa, 572 (103 N. W 796).
A dividend may be legal even though not formally declared, it being paid by common consent, and hence cannot be recovered back on that ground after being actually paid. Berryman v. Insurance Co., 117 App. Div. 730, 102 N. Y. Supp. 695.
The stockholders may agree among themselves informally to distribute a certain sum as dividends without going through the form of corporate action. No formal declaration is necessary, either by the stockholders or board of directors, and a distribution of profits by a unanimous consent without corporate action is legal. M. Groh’s Sons v. Groh, 80 App. Div. (N. Y.) 85 (80 N. Y. Supp. 438).
A division of profits is a dividend, even though not called such and not considered such by the directors or stockholders. 2 Cook on Corporations (6th Ed.), § 534,, p. 1445, and cases cited. A scrip dividend is resorted to> where company has profits not in cash. Id. § 535.
It is impossible to read this record without reaching the conclusion that in what was done about the dividends everybody acted in good faith, believing they had been earned. All of the stockholders have been paid upon the same ratio in proportion to the stock carried by them, except this plaintiff. It is also clear that all the stockholders and directors knew the course of procedure and approved of it. The other two directors knew of the giving of these notes, for what they were given, and the treasurer from time to time made payments thereon, and made indorsements thereon. The authorities cited by counsel fail to show that notes made under the circumstances disclosed by this record were void.
As to the $2,000 note given in payment for certain logs sold by plaintiff to defendant, there is nothing in the record to indicate that they were not sold for a fair price. The other directors knew all about the transaction. By failing to deny the execution of this note under oath, it was competent to introduce it in evidence, and when offered in evidence it prima facie made a case, which case has not been overcome by the defense interposed. A time came when Mr. Spencer and his family got a controlling share of the stock. They had control when the logs were bought for which this note was given. Mr. Barnes was credited on the books for the amount of these logs before the note was given.
There came a time when there was a discussion between the plaintiff and the other stockholders about his engaging in outside operations. The record would indicate that the discussion resulted in an understanding with reference to what should be done, and Mr. Barnes wrote the following letter:
“Benton Harbor, Mich., 1/14/1905.
“I, J. E. Barnes, agree that I will close up my land, log and wood matters as fast as I can without loss, and from this date will not buy any of the above except for the firm of Spencer & Barnes Company while I am an officer of said company.
[Signed] “ J. E. Barnes.”
The Spencers then had a majority of the stock, but Mr. Barnes was continued as a director and the president. The record does not disclose any departure from this agreement.
It is not the law that an officer of a corporation cannot deal with the corporation if his acts are open and fair and known to the directors and stockholders. See 10 Cyc. p. 794; Ft. Payne Rolling Mill v. Hill, 174 Mass. 224 (54 N. E. 532); Africa v. Duluth News-Tribune Co., 82 Minn. 283 (84 N. W. 1019, 83 Am. St. Rep. 424); 2 Cook on Corporations (6th Ed.), § 652; U. S. Steel Corp. v. Hodge, 64 N. J. Eq. 807 (54 Atl. 1); Ten Eyck v. Railroad Co., 74 Mich. 226 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Henry v. Benevolent Ass’n, 147 Mich. 142 (110 N. W. 523).
At the annual meeting held in January, 1907, a full settlement, except the notes, was had with Mr. Barnes. In the statement of the affairs of the corporation appeared the notes held by Mr. Barnes and Mr. B. H. Spencer as bills payable, and, as already appears, Mr. Spencer was afterwards paid nearly all his notes. B. H. Spencer, M. L. Spencer, and Irven Spencer were elected as directors. The records of the meeting show the following:
“That the stockholders of the Spencer & Barnes Company extend their thanks to John E. Barnes, the retiring president, for the services rendered by him during the past ten years. That this resolution be spread upon the minutes of the company and a copy of the same be presented to Mr. Barnes. Carried unanimously.”
These notes had been included after they were made in every annual report made to the stockholders. January 26, 1907, the following resolution was adopted:
“ It was moved that whereas it was shown by the books of the company that there is an outstanding indebtedness exceeding §50,000, and whereas in view of recent changes in the management and policy of the company a larger amount of capital is necessary to properly and successfully carry on the business of this company: Now therefore be it resolved, that the president and secretary of this company be and the president and secretary hereby are authorized to sell all the unissued stock in the treasury of this company, to wit, 1,980 shares at not less than $10 per share (par value).”
Miss Spencer, the secretary, testified:
“ That indebtedness referred to in the minutes of 1907, of over $50,000, included all notes in this suit on February 5, 1907.”
Mr. Barnes was not a director at this time. If this record does not show knowledge and ratification of the acts of the plaintiff, it is difficult to see how a record could show them.
In relation to the matter of the set-off, in addition to what we have already said about what is contained in the notice attached to the plea, is the following:
“Defendant gives notice of its intention to file a bill of complaint in equity for the purpose of obtaining a full and complete accounting from the plaintiff of the profits made and received by him out of sales to this defendant and to other persons, firms, and corporations, during the time the said plaintiff was president of the defendant corporation and owed to it his time, services, and business ability. That this action should abate until such account ing between the parties is had. Wherefore, the defendant demands that the amounts due it from the plaintiff, when ascertained, be set off against the demands of the plaintiff sued upon in this action.”
No such accounting had been made when the case was tried. In 10 Cyc. p. 794, in discussing the matter of profits received by an officer of a corporation, it is said the rule applies to secret and not to open profits, and as to them—
“Such contracts will be scrutinized in equity and will be_ set aside if not made in the utmost fairness and good faith. * * * The rule is. especially applicable where, although the director received a profit out of the transaction, the contract was made in good faith, was not improvident, had been performed, and the corporation had received the benefit of its performance, under which circumstances it has been held that it could not be undone by a receiver subsequently appointed for the corporation.”
It is said, at page 795:
“ Rule subject to maxim that he who seeks equity must do equity. The rule under consideration does not extend so far as to work entire confiscation of the property of the unfaithful director, which he may have attempted to sell to his corporation at an advance over its cost to him, so as to derive a secret profit therefrom; but in the accounting which takes place under the principle, the director will be compelled to yield to the corporation the secret profit, but will be allowed a credit for the property sold to the corporation at its real value.”
The stockholders of this corporation are practically the same as they were during all the time the plaintiff was president. All of them except the plaintiff have received and retained dividends. As has already appeared, they knew of the contracts before mentioned; they had and used the material furnished. The proof as to profits consisted largely of so-called admissions which were more in the nature of an expression of hope or expectation before the transaction referred to was closed than a statement of fact as to conditions after a final disposition of the business had been reached. If any defense is open to the defendant, we think it clear it can only be upon an accounting where all the equities of the parties can be reached.
Judgment is affirmed.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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Brooke, J.
(after stating the facts). A careful reading of the record impels us to the conclusion, that the question of defendants’ negligence should have been submitted to the jury. While the placing of the ladder in the position in which it stood at the time of the accident, and its use by Bishop while in that position, may be said to indicate reasonable care upon his part, or at least to afford no evidence of negligence, we are still of the opinion that his leaving it, even for the time necessary for him to change his paints, leaning against the freshly-painted* slippery edge of the roof of the bay window, under the weather conditions which prevailed and to which his attention had been at that moment called by his master, was such an act as to warrant the court in taking the verdict of the jury as to its character. Barnowsky v. Helson, 89 Mich. 533 (50 N. W. 989, 15 L. R. A. 33); Detzur v. Brewing Co., 119 Mich. 383 (77 N. W. 948, 44 L. R. A. 500); Lauer v. Palms, 139 Mich. 671 (89 N. W. 694, 58 L. R. A. 67). Towards this appellant Bishop owed the duty of reasonable care. They were not fellow-servants, and, if his act in leaving the ladder unattended in the position and under the weather conditions disclosed by the record amounted to negligence, the defendants, his masters, were liable.
Appellant testified that, while he saw Bishop painting the bricks and the other bay window, he paid no attention to the position of the ladder before it fell; that he did not look at it, or at the painter upon it; that he was busy with his own duties. Whether, under all the circumstances, he should have noticed, appreciated, and protected himself against the danger which caused his injury, was a question of fact for the determination of the jury. Upon this question reasonable minds might draw different conclusions. He cannot be held guilty of contributory neg ligence as a matter of law. Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 667 (3 N. W. 173); Teipel v. Hilsendegen, 44 Mich. 461 (7 N. W. 82); Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. 270, 18 Am. St. Rep. 441); Briant v. Railroad Co., 104 Mich. 307 (62 N. W. 365); Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581); Graham v. Evening Press Co., 135 Mich. 298 (97 N. W. 697).
The judgment is reversed, and a new trial ordered.
Ostrander, Hooker, Moore, and McAlvay, JJ., concurred. | [
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Stone, J.
The respondent was charged in the information with having, on the 18th day of March, 1909, in the county of Bay, made an assault upon Wilfred Hen nard with intent to do him great bodily harm less than the crime of murder. The trial resulted in the conviction of the respondent of the offense charged. The case is here upon exceptions, and there are a number of assignments of error.
The principal point urged by respondent’s counsel is that the evidence did not warrant the trial court in submitting the case to the jury. It was claimed that the assault was committed in the barn of one Mrs. Walthy Tibado, who kept a general merchandise store at Fraser Center, in whose home Wilfred Hennard was living, and that the respondent was stopping there at the time of the alleged assault. The boy Wilfred was in the barn taking care of the horses between 9 and 10 o’clock of the morning in question. The father, the respondent, was there with him.
One cannot read the record without being impressed by the fact, as undoubtedly the trial court was, that the boy, Wilfred Hennard, and Mrs. Tibado, sought to shield the respondent, and that they were Very reluctant to testify against him. The case is an unusual one. The father and son were alone in the barn. The boy received a blow or blows upon the head described by the physician as follows:
“ I found one ‘cut on the right side of the forehead, just outside the eye, pretty near on the temple and just in front of the temple bone. It was more on the frontal bone. There were three other cuts on the top and back part of the head. One was on the top, and the others were back. The top one was not bad. It was really a bruise. The other was cut down to the bone so that it was necessary to put a stitch in it. After stitching the wound, stitching this one, I noticed the blood coming from the wound. He blew his nose, and I noticed that the air came from, this, so that there was, must have been, a puncture and wound of the bone at that point. * * * The finger of one hand — the nail was crushed and the finger crushed. There were some other small scratches on the head, but not of any significance.”
The boy testified: That he was rendered unconscious; that after he came to he asked his father, the respondent, what was wrong, and he was standing very nearly in the same position as when the boy went into the barn. ■
" He didn’t say nothing when I said, ‘ What is wrong ? ’
ieQ. Why did you run over to the preacher’s ?
“A. Why, I don’t know what struck me. I don’t know whether it was my father, or whether it was a horse, or what it was. I don’t know exactly what struck me, and I imagined at that time it was him struck me, but since I realize that it might have been the horse as well as my father. * * * I recall going over to the preacher’s. I ran over there, I guess. As I ran over I was hurt and bleeding. The preacher met me before I got to the house, and when I got there I sat down in a chair, and he washed my head off. Then he took me upstairs and laid me down on the couch.
“Q. Did you say anything to the preacher when you went over there ?
“A. Why, yes; I told him — he asked me what was .wrong, and I told him I thought my father struck me, and I told him my father struck me, as near as I could think at that time. I couldn’t say how it was.”
He further testified that when he gained consciousness he said: “Don’t, father. Oh!”
Mrs. Tibado testified that she heard the boy’s outcry, and started for the barn, and met the respondent coming from the barn.
“Q. What did he say to you ?
“A. I could not tell what he said to me.
ilQ. What is your best recollection of what he said ?
“A. He said something about Wilfred being hurt; but I would not attempt to swear whether — to just what he said or how he said it.”
After giving a number of evasive answers, she.testified to going to Mr. Butler’s, the minister’s, and finding Wilfred there; how the physician was called, the wounds dressed; and she remained there caring for him from Saturday, the day of the injury, until the following Thursday.
While the boy was being cared for, the respondent hitched up a horse and buggy and went away in the direction of Linwood, and sent the horse and buggy back. This was very remarkable conduct for the father of a boy who had been severely injured by the kicking of a horse, if everything was pleasant between them, as is claimed. The fact that the father and son were alone together when the boy was injured, in an unusual manner, coupled with the conduct of the father after the injury, leads the mind of an unprejudiced person to believe that these witnesses suppressed the truth when they testified that there had been no trouble, and that everything was of the pleasantest nature. Whether there was an assault, and, if so, who made it, and with what intent, were questions for the jury. The court did not err in overruling the respondent’s motion to direct a verdict of not guilty as claimed in the first assignment of error.
There was no error, as claimed, in the second and third assignments, in receiving and refusing to strike out the testimony of Wilfred as to what he said to the preacher, and what he said to respondent when he was struck. They were part of the res gestae within our repeated decisions.
The assignments of error relating to leading questions are without merit. The record shows that respondent’s counsel had stated to the court that he had advices that Mrs. Tibado and the son did not desire to urge the prosecution, and there was enough in the conduct of these witnesses to warrant the allowing of leading questions, in the discretion of the court.
There was no error permitting evidence relating to the appearance of the barn, the curry combs, and of the wounds upon Wilfred’s head. The location and appearance of the wounds were pertinent as bearing upon the question whether they had been inflicted by the horse, or not, as claimed.
The remaining assignments of error are, in our judg ment, without merit. Some of them are too general for consideration.
The charge of the court is criticised; but we think that it was fair, and covered the law of the case. As we have said, the case is unusual in many respects. The respondent and his son were alone together in a barn. The son receives a blow, or some external injury, is knocked senseless, is bruised, wounded, and his skull is fractured, and he is covered with blood. The nature of the injuries is such as to render it improbable that they were inflicted by the kick of a horse, as was claimed.
The father does nothing to relievé the son, but walks unconcernedly away, and soon leaves the vicinity. The son, instead of going to the home, goes to a neighbor’s across the way, and there states that his father struck him. Because no third person saw the blows inflicted, it does not follow that all of the circumstances, taken together, may not be sufficient to warrant a jury, under the evidence, and in the exercise of their common sense, in saying that the respondent was guilty, notwithstanding the fact that the witnesses “did not desire to urge the prosecution.”
We find no error in the record, and the conviction is affirmed.
Ostrander, Hooker, Moore, and Blair, JJ., concurred. | [
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Ostbandeb, J.
Petitioner seeks to acquire title to two small parcels of land adjoining each other, fronting on Seventeenth street in Detroit; each parcel being 50 by 103 feet in size. It filed its petition, verified by its attorney, in which it is alleged that petitioner is the owner of and has a railroad constructed and in operation between the city of Detroit, in the State of Michigan, and the town of Kensington, in the State of Illinois, and requires “for the purpose of constructing and operating its railroad and appurtenances, the premises adjacent to its main line,” describing them; that the taking thereof is necessary for the public use; that it endeavored to acquire title to the premises by purchase; “that your petitioner has offered * *• * for said premises a sum in excess of what your petitioner believes is the fair value thereof, which offers have been refused.” A demurrer to the petition was overruled, and respondents Miller and Lobdell filed separate answers. There was a preliminary hearing, in which some testimony was introduced on the part of petitioner and which ended with an order granting the prayer of the petition. At this stage, proceedings were interrupted by the issuing out of this court of a writ of certiorari, which was afterwards dismissed without prejudice. New directions were then given for the summoning of a jury, and such proceedings were had that the jury determined that public necessity required the taking of the land in question by the petitioner and awarded as compensation for said land, to respondent Lobdell, as mortgagee, 18,000; to respondent Miller, owner of the fee, $1. Respondent Ferguson disclaimed any interest. Objections to confirmation of the award were overruled, and it was confirmed September 28, 1909; the order of confirmation specifying, also, that counsel for each of said respondents should be paid $150, that respondent Lobdell be paid $15.30, and respondent Miller $51.40 costs and expenses. Respondents have taken separate appeals. With the notice of appeal each respondent pointed out the errors and the objections taken to the proceedings upon which he relies.
As we are of opinion that some of the objections made by respondent Miller, the owner of the land, are good and require the dismissal of the entire proceedings, we proceed at once to consider them. It cannot be said, we think, that the petition is, upon its face defective. If the averments were admitted, an award would not be set aside for want of jurisdiction. The brevity and general nature of the averments are, however, calculated to attract attention when the nature of the case sought to be made by petitioner is considered. The case, briefly stated, is that the petitioner operates, and has for many years operated, a railroad from Detroit to Chicago. Its passenger depot in Detroit is at the foot of Third street. A tunnel is being constructed under the Detroit river, by means of which trains which have heretofore been transported to and from Canada by boats may be conveyed under the river. The mouth of this tunnel, in Michigan, will be at some distance from the present passenger depot and at- or about Fourteenth street. An economical and speedy service and public and private convenience require the construction of a new passenger depot with appurtenances, including necessary tracks, near the mouth of the tunnel. Plans have been made which contemplate the acquisition of the lands in a district, irregular in outline and dimensions, including the streets and alleys lying north of the right of way of petitioner and extending from Fourteenth street to Twentieth street. The parcels in question are so situated that it is practically imperative that they be controlled and used with surrounding property if the scheme and purpose referred to is carried out. The engineering department of petitioner has prepared maps showing the outlines of the district and plans, or studies, tentative in character as to details, of the passenger station and appurtenances laid out therein. These were submitted, with explanations, to the j ury. At some length witnesses stated the proposed methods of operating trains in the tunnel, the equipment required, the reasons for constructing a new passenger depot, the supposed resulting convenience to the public and- to the petitioner. One of the powers of petitioner is—
“To erect and maintain all necessary and convenient buildings, stations, depots, and fixtures, and machinery for the accommodation and use of their passengers, freight, and business, and to obtain and hold all the lands necessary therefor.” 2 Comp. Laws, § 6234, subd. 8.
If unable to agree for the purchase of any real estate required for the purpose of its incorporation, “it shall have the right to acquire title to the same in the manner and by the special proceedings prescribed in this act.” 2 Comp. Laws, § 6242; Act No. 266, Pub. Acts 1899.
It does not appear, affirmatively, that petitioner has ever determined to erect a passenger station and to acquire the lands in this district for that purpose. We are not permitted to indulge any possible presumptions in favor of such action. None arises from the filing of the petition and this proceeding to condemn. The petition indicates no such purpose and mentions only two small parcels of land, neither of which is, within any reasonable definition of the word or construction of the statute, “ adjacent ” to the main line of the railroad. It does not appear that petitioner has ever acquired any land in the district. It does appear, affirmatively, that the whole matter is tentative and indefinite. Streets and alleys must be vacated. So far as efforts to acquire land are concerned, it appears that options have been acquired and none of those to petitioner. This means that petitioner may buy, at a price fixed in the option, but need not buy. We are not concerned about the method adopted by petitioner to secure land by purchase. The point and ruling is that it is an indispensable prerequisite to acquiring land in con4emnation proceedings that the corporation shall determine by proper action that the land is required for corporate purposes, that the purposes shall be such that the private right must yield to the larger public necessity, that no such determination is indicated by the action disclosed.
What has been said supports also the objection that the testimony wholly fails to prove any attempt to purchase the land described in the petition. It is essential there should be evidence of an attempt to purchase — to agree for the purchase of the land — to support these proceedings. The testimony warrants but one conclusion, and that is that the representative of petitioner had no authority in the premises except to agree upon a price and secure a right of the Union Trust Company to buy at that price. No citizen is under obligations to treat with the corporation for a right to sell his land at the option of the corporation. It is said in the brief for petitioner that the general authority of the agent covered the taking of options which he reported; but in the particular case of Miller he had direct authority to make a cash offer of $6,000. This statement is not supported by the record. The agent in his testimony makes it very plain that he had no authority to sign for or to bind the petitioner, and that he had no other authority when he saw Mr. Miller than he had when he saw Mrs. Ferguson or any other property owner.
We are of opinion that petitioner cannot maintain this proceeding, and that an order should be entered dismissing it. Whether the contemplated improvement is not one which requires the making and certification of a map, and its approval and filing (2 Comp. Laws, § 6232), is a matter demanding serious consideration.
An order will be entered dismissing the proceeding, with costs of both courts to appellants.
Hooker, Moore, Blair, and Stone, JJ., concurred. | [
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Hooker, J.
The cause was heard on appeal from an order overruling demurrer to the bill. The order was reversed and the bill dismissed. The cause is reported ante, 91.
Counsel now ask us to amend the decree; fix a time within which complainant may amend his bill, and remand the cause for further proceedings. This application is upon two grounds. First, the statute, Act 299, Pub. Acts 1909. Second, the proposed statement of further facts set forth in the application now before us.
1. Statute. The practice in chancery requires an opportunity to amend bill or answer after demurrer sustained. Chancery Rule 9, subd. e, former Rule 23. In Creasey v. St. George’s Society, 34 Mich. 51, a decree for complainant without permitting defendant to answer, held premature; “defendant should have had leave to answer.” It seems then that leave is necessary.
In Lamb v. Jeffrey, 41 Mich. 719 (3 N. W. 204), it was held that the bill should not be dismissed on demurrer unless the defects are not amendable, while in Smith v. Blake, 96 Mich. 542 (55 N. W. 978), the same exception was made.
In Bigelow v. Sanford, 98 Mich. 662 (57 N. W. 1037), we said that on sustaining a demurrer which goes to the merits of the whole bill, the bill may be dismissed, etc.
In Aldine Manfg. Co. v. Phillips, 118 Mich. 171 (76 N. W. 371), we held that the opportunity should have been given below had it been asked, which we would not presume. See, also, Bank of Michigan v. Niles, Walk. Ch. (Mich.) 396; Church v. Holcomb, 45 Mich. 29 (7 N. W. 167).
The rule announced in Bigelow v. Sanford seems to show that the circuit court has power to dismiss a bill where a general demurrer is sustained, and that it is proper where the bill cannot be effectively amended. That it is a proper rule seems plain for it would be unfortunate if it should be necessary to go to a hearing of the merits on an amended bill or upon demurrers to the same to ascertain that the amended bill or answer could not be amended. Such a rule would, in the latter case, put it in the power of a complainant to protract the litigation for as long a time as he should be able to file new pleadings. Bigelow v. Sanford is in line with the prac tice generally. 1 Enc. Pl. & Prac. p. 481; Fed. Eq. Rule 35; Riddle v. Whitehill, 135 U. S. 627; 1 Enc. Pl. & Prac. p. 488; Hardin v. Boyd, 113 U. S. 761; Shackleford v. Bankhead, 72 Ala. 476.
It is contended that the statute, 1 Comp. Laws, § 549, as amended by Act No. 299, Pub. Acts 1909, requires an opportunity to amend in all cases of hearing on demurrer on appeal to this court. This statute was passed in 1883, prior to which no appeal could be taken from an order overruling a demurrer. We are of the opinion that it should be construed to be declaratory of the pre-existing practice in circuit courts and its application to cases in this court upon appeal, the question being heard de novo, and that it was not the intention to make the giving an -opportunity to amend mandatory in all cases. The rule has never been so construed although the language seems to be equally broad. We see no reason for giving the statute a different construction from that given the rule. We must, therefore, overrule the first ground relied on.
2. Amendment. The dismissal of the bill was based on an affirmative showing of a compromise therein contained, and while we recognize the fact that .settlements or compromises of pending litigation may be set aside for fraud, we were of the opinion that the bill did not contain allegations warranting such relief, but affirmatively showed the contrary.
The new application is based on new and other allegations of fraud and collusion. We do not wish to pass upon their sufficiency at this time. We recognize, however, and approve the practice which gives complainants an opportunity to amend in all cases where the defects in the bill are not such as to be necessarily fatal, beyond the power of amendment, and think it should be followed in this as well as the lower court, and that ordinarily doubts of the ability to amend and the propriety of an amendment should be resolved in favor of giving an opportunity. In view of the facts now alleged, we think it advisable to amend the decree, substituting for the order of dismissal an order that the cause be remanded with leave to the complainant to file an amended bill within 30 days after notice of the filing of the record in the circuit court.
Costs will be allowed on this motion.
Moore, MoAlvay, and Brooke, JJ., concurred. Blair, J., concurred in the result. | [
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Moore, J.
Plaintiff, in July, 1908, was driving his horse down a long hill, when he met an automobile driven by the defendant. His horse became frightened. The buggy was overturned. The plaintiff was hurt. Claiming it was the negligence of defendant which caused the injury, the plaintiff sued him. The case was tried before a jury. A judgment of $550 was recovered by the plaintiff, and the case is brought here by writ of error.
In view of the questions raised, the charge of the court becomes important. After stating the claims of the parties, the jury was instructed:
“ The burden of proof is on the plaintiff to establish by a fair preponderance of the evidence every fact necessary for his recovery in this action. Before he can recover he must satisfy you by a fair preponderance of the evidence of two things: First, that the defendant was negligent, and that such negligence was the proximate cause of the injury which the plaintiff received. Second, that he himself was not guilty of negligence which contributed in any degree to the injury. Unless the plaintiff has established both of these propositions by a fair preponderance of the evidence, he cannot recover.
“When an injury is received by one person which is in part due to the negligence of another person, but it also appears that the person injured contributed to the injury in some degree by his own negligence, the law does not undertake to compare the relative negligence of each, but lays down the rule that, if the person injured contributed in any degree to the injury by his own negligence, he cannot recover, even though the other person was more negligent. For that reason the plaintiff in this case must show that the injury was caused by the negligence of the defendant, and that his own negligence did not contribute thereto.
“Negligence is defined as a failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. It is sometimes defined as a failure to perform a duty implied by law which one person owes to another person; it is in another sense the want of ordinary care. Ordinary care is such care as an ordinarily prudent person would take under the same or like circumstances. An automobile has the same right upon our public roads as carriages and other conveyances, but their construction and operation is such as to make them objects of fright to horses and other animals. To insure the safety of travelers and those who have to use the horse as a means of conveyance upon the highways, our legislature has defined the duties of a man who uses the automobile, and I will read to you some of those sections of the laws of 1905 and 1907 which have any application to this case. Section 14 provides :
“ ‘Upon approaching a person walking in the roadway of a public highway, or a horse or horses, or other draft animals, being ridden, led, or driven thereon, a person operating a motor vehicle shall slow down to a speed not exceeding ten miles per hour and give reasonable warning of its approach, and use every reasonable precaution to insure the safety of such person or animal, and in case of a horse, or horses, or other draft animals, to prevent frightening the same.’ [Act No. 196, Pub. Acts 1905.]
“ Section 15, which has more particular application to the case we have before us, reads as follows:
“ ‘Any person operating a motor vehicle shall at request or on signal, from a person riding, leading, or driving a horse or horses, or other draft animals, guide such motor vehicle to the right of the wrought or traveled portion of the highway, and immediately bring such motor vehicle to a stop, and if requested, shall cause the motor of such vehiole to cease running so long as shall be reasonably necessary to prevent accident, and insure the safety of others. And it shall also be the duty of any male chauffeur or driver of any motor vehicle, and other male occupants thereof, over the age of fifteen years, while passing any horse or horses or other draft animals which appear badly frightened, or upon the request of the person in charge of and driving such horse or horses or other draft animals, to give such personal assistance as would be reasonable to insure the safety of all persons concerned to prevent accident.’ [Act No. 196, Pub. Acts 1905.]
“ Section 16 reads as follows:
“ ‘ Whenever a person operating a motor vehicle shall meet on a. highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, and there being no occasion to stop as above provided, the person operating such motor vehicle shall seasonably turn the same to the right of the center of the traveled portion of the highway; while the person approaching' shall likewise turn from the center of the traveled portion of the-highway so as to pass the motor vehicle on the opposite side of the center of the highway to which the motor vehicle has been turned. And any person so operating any motor vehicle shall, at the intersection of a public highway, keep to the right of the intersection of the centers of such highways, when turning to the right and pass to the right of such intersection when turning to the left.’ [Act No. 196, Pub. Acts 1905.]
“ That has not so much application to this case as section 15, which I have referred to in regard to signals and the warning to automobiles.
“Now the plaintiff claims that the defendant that day on the highway near Sparta disregarded and neglected the duties imposed upon him by the law, which I have just read, that is, that he didn’t stop his machine when signaled so to do; that he did not guide it to the right side of the traveled portion of the highway and give the plaintiff an opportunity to pass safely.
“ If you find that he was thus negligent, and that such negligence caused plaintiff’s injury, the plaintiff would be entitled to recover, providing he himself was not guilty of any negligence which contributed to the injury. But independent of these acts of the legislature which I have just read to you, the law imposes the duty upon the defendant of using reasonable care and caution in managing his automobile upon the public road. He is held to an exercise of ordinary and reasonable care in the management of his automobile so as to save others from injury.
“ Now, then, if, in applying these rules to this case, you find that plaintiff’s claim is true, namely, that his horse became frightened at defendant’s automobile, and that he and his companion Rhodes signaled and called to the defendant, and that defendant saw or should have seen and heard them, but did not guide his automobile to the right side of the road and stop it and give plaintiff an opportunity to pass, he, the defendant, would be guilty of negligence, and if such negligence was the proximate cause, that is, the cause which produced the injury, the plaintiff would be entitled to recovery, provided, of course, as I have stated, that he himself was not guilty of any negligence that contributed to the injury. If the plaintiff has failed to show by a fair preponderance of evidence that the defendant was negligent, and that such negligence was the proximate cause of the injury — I say if the plaintiff has failed to show that, then you need not give the case further consideration, and your verdict should be for defendant.
“ But if you find that the defendant was guilty of negligence that caused the injury, you will then consider the second question, namely, Was the plaintiff himself guilty of any negligence that contributed to the injury ? The plaintiff is held to the exercise of ordinary care for his own protection, such care as an ordinarily prudent man would use for his own protection under the same circumstances. This care should be commensurate with the apparent danger. Did the plaintiff, Chapman, at the time of this accident use ordinary care in protecting himself against danger ? In determining this fact you must consider the nature and disposition of the horse as shown by the evidence and the plaintiff’s knowledge of it. Also the danger as it appeared to him at the time, the character of the hill and road, and the appearance of the automobile, are all important matters for you to consider in determining whether the plaintiff used ordinary care in avoiding every apparent danger.
“ If the plaintiff’s horse was fractious, and plaintiff knew it, and if he believed that defendant would exercise ordinary care in managing his automobile, and yet danger to him was apparent, he would be negligent in driving toward'the automobile under such circumstances. But plaintiff had a right to drive down the hill, and that act would not be negligent, providing he exercised ordinary care for his own safety in doing so. The plaintiff had a right to assume that the defendant would obey the law and stop his machine when requested, or when he saw evidence of fright in the horse, and so plaintiff had a right to continue down the hill if he believed he could safely do so by the exercise of ordinary care.
“These are questions for you to determine from the evidence. Did the plaintiff use ordinary care in protecting himself from apparent danger and dangers as they appeared to him under the circumstances at that time ? As I have stated, if you find that the plaintiff was himself guilty of any negligent act, which in any degree contributed to his injury, he could not recover, and your verdict should be for the defendant. I also said that if the defendant was guilty of negligence, and such negligence was the proximate cause of the injury, and the plaintiff was free from negligence, then your verdict should be for the plaintiff.”
Three special questions were submitted to the jury, which were .answered by them as follows:
“(1) Was plaintiff entirely free from negligence even the slightest at time the accident occurred ?
“A. Yes.
“ (2) Could the plaintiff by the exercise of ordinary care have avoided the accident ?
“A. No.
“(3) How far was the plaintiff from defendant when defendant first discovered the horse was frightened ?
“ A. About 60 feet.”
A motion was made for a new trial, which motion was overruled.
The errors relied upon are stated by counsel to be the following:
“(1) The court erred in denying defendant’s motion to direct the verdict for defendant on the ground that the testimony showed plaintiff guilty of contributory negligence which contributed to the injury and precluded him from recovering damages therefor.
“(2) The said judgment and verdict is erroneous, because the evidence shows the plaintiff guilty of contributory negligence and precludes his recovery.
“(3) That the said judgment and verdict is erroneous in that it is against the weight of evidence in the case.
“(4) That said judgment and verdict is erroneous, because there is no evidence showing negligence on the part of the defendant.
“(5) The court erred in refusing to instruct the jury as requested by the defendant in his fourth request.
“(6) The court erred in refusing to instruct the jury as instructed by the defendant in his sixth request.
“(7) The court erred in instructing the jury that the plaintiff was entitled to damages for the loss of his time.
“ (8) The court erred in refusing to submit to the jury special question No. 4 as requested by the defendant.
“ (9) The court erred in allowing counsel for plaintiff, against defendant’s objection, to ask the witnesses Strong, Noble, and Ryan as to their whereabouts and as to whether or not they were drinking and intoxicated on the day of the accident, subsequent to the time it occurred.
“ (10) The court erred in saying in the presence of the jury, while defendant’s counsel was asking the plaintiff on cross-examination this question:
“ ‘Q. You thought and believed Mr. Strong should have stopped, and you did not have to stop, is that it ?
“ ‘ The Court: What difference does that make ?
“ ‘Mr. Powers: It is bearing on his negligence.
“ ‘The Court: I don’t see how it has any bearing on this case at all, and I will sustain the objection. (Exception taken by Mr. Eardley.) ’
“ These remarks of the court were prejudicial and led the jury to believe that it would not be the duty of the plaintiff to stop, even if he knew his safety demanded it.
“ (11) Because the verdict and judgment is the result of bias and prejudice on the part of the jurors against owners of automobiles.”
1 and 2 may be considered together. They are based upon the claim. We quote from the brief of counsel:
“ Plaintiff did not know, as he admits, whether defendant saw him signal or not. He knew his horse was afraid and knew he would have trouble, but still he drove on toward the oncoming automobile in a dangerous place, where the road is only 15 to 20 feet wide, and an embankment on the side of the road. The plaintiff did nothing whatever to apprise the defendant of the frightened condition of his horse. We submit that he should ask Mr. Rhodes to help him in controlling the horse, or that he should have had Mr. Rhodes get out and warn defendant, or that he should have stood up or in some way attracted the attention of the defendant. As a matter of fact, the signal given was no signal at all, but he drove on because he wanted the horse to know that he could control her. We insist that it was gross negligence in the plaintiff to drive rapidly down the hill knowing the actual danger, and this, too, when he did not know whether the defendant saw or heard the signal, and when there was nothing in the action of the horse to indicate to him that it was frightened.”
This statement is a one-sided one of what the record shows. There is testimony to the effect that, while the horse was a spirited one, it could be controlled; that plaintiff did not see the automobile until he had started down the hill; that he could not well turn around; that there was room to pass; that plaintiff would have been successful in passing if defendant had turned to the right and given part of the highway; and that the defendant paid no attention to the plaintiff. Upon the record made, the question of the contributory negligence of plaintiff could not be decided as a legal one.
3. In disposing of the motion for a new trial, the judge held that the verdict was not contrary to the weight of the evidence. After reading the record, we are satisfied he was right about that phase of the case.
4. There is an abundance of evidence in the record that defendant did not stop when signaled to do so, and that he failed to give a share of the road. While the testi mony was contradictory, it was not so conclusive that it could be said as a matter of law that defendant was not negligent.
5 and 6. So far as the requests mentioned were good law they were fully covered by the general charge.
7. The record discloses in great detail what plaintiff was able to do before the accident, what he was able to do afterwards, and what he did do. It cannot be said, in the absence of any request or any intimation to the court, that what he said about damages for loss of time was likely to be misunderstood, or that it was misunderstood. The amount of the verdict would not indicate that the jury was misled.
Question No. 4 was not so framed as to meet the requirements of the statute.
Mr. Strong was the defendant; Mr. Noble and Mr. Ryan were with him in the automobile. Each of them as a witness had given his version of the occurrence. The trial judge did not abuse the discretion possessed by him in allowing the cross-examination of these witnesses about which complaint is made.
It is not necessary to discuss the other assignments of error. The case was carefully tried.
Judgment is affirmed.
Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). If complainants have, in fact, no grievance, other questions are unimportant. It is apparent from the facts which have been stated that the complainants admit, and the defendants assert, a prescriptive right. They do not assert that their predecessors in ownership of the mill or that they themselves ever acquired the right to flow the lands of upper proprietors in any different manner or to any greater extent than they were or would be overflowed by the dam in the condition it was when the bill was' filed. The only difference between them, on this point, is that complainants charge a constant and long-maintained interruption to the flow of water caused by the old dam, while the defendants say that the old dam has settled, from which it is inferred, necessarily, that the interruption to the flow has not been constant and the overflow of lands caused thereby has been variable. It may be said that defendants concede, in the answer, that, if the new dam should be built higher than the old dam was as it was originally constructed, complainants would have a grievance which, if properly presented, a court of equity ought to relieve. We are of opinion, also, that the matter set up in the answer concludes defendants from claiming the right to maintain a dam any higher than the old dam was at the time the bill was filed. We are convinced that the new dam is higher than the old dam was at the time the bill was filed. In other words, we measure the rights of defendants as against those of complainants by the interruption to the flow of water caused by the old dam as it was when the suit was begun. We come therefore to the questions of pleading.
The court below was of the opinion that the remedy open to complainants was by proceedings for contempt; that the relief asked for by the supplemental bill was not consistent with the relief asked for in the original bill; that the complainants could not, by supplement, introduce the facts occurring since the filing of the original bill for the purpose of securing a mandatory decree for the abatement of the new dam. It is said in the opinion of the court:
“ The facts stated and the relief asked thereon in the supplemental bill is practically an abandonment of the original bill and of complainants’ rights and remedies under it, and sets up a new substantive cause of action upon which a decree might be made without connecting it with the original bill.”
Defendants did not seek a dissolution of the temporary injunction, and did not, and do not now, question the power of the court to allow it. After it was issued, there remained the question of the right of complainants to a decree making the injunction permanent and, perhaps, as affecting the matter of costs, the question of defendants’ purpose and of complainants’ justification for filing the bill. We do not perceive how defendants’ conduct pending the hearing of the cause upon its merits did or could change the issues. Complainants are not asking for damages, but only for a decree requiring defendants to maintain the new dam at a height corresponding with that of the old dam — for relief by injunction. If entitled to such relief when the original bill was filed, they are entitled to it now. The fact that such relief can be afforded now only by a decree requiring defendants to lower the new dam is a fact for which defendants are alone responsible. It is no other or different relief than was asked for in the original bill, and it must be granted or denied upon the facts which remain unaffected by defendants’ conduct pending the suit. In this view of the matter, it is immaterial that some of the complainants abandoned the suit, or that some of them are willing the dam shall remain as now constructed. It was not necessary to bring upon the record, in the form of a supplemental bill, the facts which were made to appear at the hearing respecting the violation by defendants of the preliminary injunction and the necessity for a decree mandatory in its form. We are, however, in some doubt concerning the precise terms which ought to be incorporated in a manda tory injunction. Unless counsel can agree about the precise dimensions to which the new dam should be reduced or the precise dimensions of the reduction which should be made in its height to make it correspond, substantially, to the height of the old dam, the record must be remanded, for this purpose, to the court below.
Complainants may, in any event, have the decree of this court for reversal of the decree below, for costs of both courts, and for a mandatory injunction in accordance with this opinion.
Moore, Brooke, Blair, and Stone, JJ., concurred. | [
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McAlvay, J.
Defendant John Finn was a building contractor, who on August 16, 1906, entered into a con tract with the fire commission of the city of Detroit to build engine house No. 29, according to plans and specifications furnished by Donaldson & Meier, architects, and to their satisfaction, for the sum of $19,970.85. The other defendants were sureties upon a bond given by Finn as provided by Act No. 187, Pub. Acts of 1905, entitled :
“ An act to insure the payment of subcontractors and wages earned and materials used in constructing, repairing or ornamenting public buildings and public works.”
George Moynes was a subcontractor under Finn, under written contract, according to plans and specifications, to furnish the carpentry work, the builders’ hardware, and to line some bins and stalls in this engine house. Buhl Sons Company contracted with Moynes by letter to furnish the hardware trimmings as per plans and specifications for $154.50, and did furnish the hardware trimmings accordingly. Pudrith & Candler examined the plans and specifications to ascertain what would be required of them in lining the stalls and feed bins, and then agreed with Moynes to do this work according to plans and specifications, and did so do it, for $147. Afterwards Moynes became bankrupt and did not complete his contract. Finn, the principal contractor, completed it at a cost of $456 more than the contract price with Moynes. Finn made his last payment to Moynes May 10, 1907. The bond sued upon was not given until August 28, 1907, after the contract was completed and Finn had received his final estimate from the architects, and presented it to the commission for his final payment. The secretary informed him that on account of these two claims the commission would not pay him until the statutory bond was furnished. Claimants did not give the notice in writing to the fire commission or to the contractor, required by section 2 of Act No. 187, Pub. Acts 1905. Contractor Finn first received knowledge of these claims from claimants’ attorney on or about July 1, 1907. The trial resulted in a judg ment for the full amount claimed upon a verdict directed by the court. Defendants assign error upon the refusal to direct a verdict in their behalf as requested, and upon refusal to give certain requests.
The question in the case is whether plaintiff and his assignors were subcontractors or materialmen. The suit was upon the bond required by Act No. 187, Pub. Acts 1905, and the court, without in terms holding plaintiff and his assignors to be subcontractors, in effect so held, in determining that all the requirements of the statute as to notices had been complied with by plaintiff. If these parties were subcontractors, the court was in error. The notices required by this statute in case of subcontractors admittedly were not given, either to the fire commission or the principal contractor. ,
Plaintiff argues: First, that it was a materialman; and, second, that if the court should hold that it was a subcontractor, in view of the fact that no bond had been filed by defendants, the notices which were given were sufficient.
This last contention is not tenable under the declaration, which is upon this statute. Defendants pleaded the general issue, and the case was tried by both sides upon the theory that a statutory bond had been given.
In the case of Avery v. Board of Sup’rs of Ionia Co., 71 Mich. 538 (39 N. W. 742), the principal question was. whether plaintiff was a subcontractor or a materialman. At that time and at the time the cases which followed that decision arose, the statute did not insure the payment of subcontractors. The act under which the case at bar was brought extends its protection to subcontractors, as well as materialmen. In the Avery Case, supra, it was held that “one who takes under the original contract, and is to perform in accordance with the original contract,” is a subcontractor. Approved and affirmed in People, for use of Winkle Terra-Cotta Co., v. Cotteral, 119 Mich. 27 (77 N. W. 312). Later, in People, for use of Davis, v. Campfield, 150 Mich., at page 677 (114 N. W. 659) the same question was before the court. Mr. Justice Carpenter, speaking for the court, quotes the definition of a subcontractor from the Avery Case, and says:
“Under this definition, which we think correct, we determine whether a person furnishing material is a subcontractor * * * by this test, viz.: Has he agreed that the original contract shall be the standard by which the performance of his contract shall be judged ? If he has, he is a subcontractor. * * * If he has not made that agreement, he is an ordinary materialman. * * * Under this definition, and according to this test, a manufacturer who agrees to furnish doors and sashes for a building in accordance with the terms of the original contract is a subcontractor, while if he merely agrees to furnish them in accordance with certain measurements, he is a materialman.”
The same rule was announced by this court in People, for use of Reynolds, v. Banhagel, 151 Mich., at page 46 et seq. (114 N. W. 669).
Plaintiff’s proposition in writing to Moynes was:
“ As per request we are pleased to quote you on Yale and Towne hardware trimmings for engine house No. 29 as per plans and specifications, at $150.50.”
Plaintiff’s assignors of part of its claim “went all over the plans and specifications prepared by Donaldson & Meier for this job,” and from them ascertained what work would be required, and agreed to do the work according to such plans and specifications. These plans and specifications were a part of the original contract, which required the contractor to furnish material and articles in conformity therewith, under the direction and to the satisfaction of the architects. The case at bar must be controlled by the cases above cited. Both plaintiff and its assignors were subcontractors. They are classified as such by the contracts entered into by them. They insist that these articles were the ordinary trade goods upon their shelves and in stock, and were furnished as such. They might have done this; but it is not that which was done. „ These materials, articles, etc., they assumed to furnish in accordance with the terms of the original contract, making that “the standard by which the performance of their contracts shall be judged.”
This case is distinguishable from the case of People, for use of Kuenzel, v. Construction Co., 159 Mich. 133 (123 N. W. 801), heard at the term of court when this case was first argued. In that case there was no proposition to manufacture certain concrete blocks according to plans and specifications. Plaintiffs made no agreement with reference to the original contract. They agreed at 22 cents apiece to furnish such number of blocks as should be required to be used in. the construction of the sewer. The molds for the blocks were furnished by the construction company. The opinion states:
“ * * * It is clear that plaintiffs were concerned only to manufacture blocks of proper material in the forms or molds which were furnished, to allow them to properly harden, and to deliver them on the line of the sewer. * * * We think that it is made clear in this case that plaintiffs never undertook to perform any part of the original contract with the city, however complete their knowledge of its requirements may have been.”
The court distinguishes the case from the cases of Avery v. Board of Sup’rs of Ionia Co., People, for use of Winkle Terra-Cotta Co., v. Cotteral, and People, for use of Reynolds, v. Banhagal, supra.
In the instant case plaintiffs and their assignors, by specific agreements, each for a lump sum, did undertake to perform, and did perform, certain parts of the original contract according to plans and specifications. In People v. Campfield, supra, the class of cases one of which actually arose in the Kuenzel Case, supra, was discussed and distinguished. The rule laid down is a reasonable one, and the only one which this court has been able to formulate applicable to all cases.
It follows that plaintiff cannot' recover in this action. The requirements of the statute, relative to notices which subcontractors must give, were not followed. The judg ment is reversed, and, as there is no dispute as to the absence of these notices, no new trial is ordered.
A judgment for defendants will be entered in this court.
Ostrander, Hooker, Moore, Brooke, Blair, and Stone, JJ., concurred. | [
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Brooke, J.
(after stating the facts). It is urged by appellant that the contract entered into between his insol vent and defendant was an absolute nullity; that it amounted in effect to an agreement on the part of plaintiff’s insolvent to pay dividends upon defendant’s stock, whether such dividends were earned or not; and that, the contract having been performed by the insolvent, the trustee may maintain an action in assumpsit, upon the ground that the defendant has accepted and appropriated the benefit of the contract — this alleged right of action resting, not upon the contract, but upon the duty, promise, or obligation springing from the property, money, or benefit conferred by plaintiff and received by defendant.
We think that appellant is in error upon each one of the foregoing propositions. There can be no doubt that the responsible officers of a corporation may sell its capital stock at par, and may likewise, in good faith, sell its personal property for a sum, part to be paid in cash, and the balance, if paid at all, to be paid from dividends thereafter to be declared upon the stock of the corporation sold to the vendee of the personal property in the same transaction.
It will be noted that the corporation did not agree to pay dividends upon the $1,000 of stock sold, to the amount of $2,170, within four years. It did agree that it would accept $500 in cash and such dividends upon the stock as might be declared, up to the amount of $2,170, within four years, in full consideration for the automobile, and further, that if, within said period, the dividends declared did not amount to $2,170, then the $500 cash, paid by defendant, should be accepted by the corporation in full of his obligation. This contract was entered into between the corporation and defendant in good faith, and in the evident belief that the stock sold was worth the sum paid for it by defendant, and would produce dividends to meet the balance of the obligation. As a matter of fact, the stock was absolutely worthless. While this was unknown to the corporation, or its responsible officers at the time, it had the means of ascertaining the truth, while the defendant was obliged to rely upon the representations of the corporation as to the value and probable earnings of the stock. This was not a contract between a corporation and a stockholder, but one between the corporation and a stranger, by the terms of which the stranger became a stockholder and vendee of certain personal property.
Plaintiff cannot recover upon the theory of an implied contract. The contract was express and fully executed upon both sides. Defendant has done all he agreed to do, and plaintiff’s insolvent has done nothing more than it contracted to do. Galloway v. Holmes, 1 Doug. (Mich.) 330; Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671); Searles v. Reed, 63 Mich. 485 (29 N. W. 884).
An action in assumpsit affirms a contract where there is one. Galloway v. Holmes, supra.
Aside from this, neither plaintiff nor his insolvent has attempted to avoid the contract. Plaintiff still retains the $1,500, the fruits of the contract to his insolvent, and now seeks to impose new and alien liabilities upon the defendant. The plainest elements of justice forbid such a course. As was Said in Parish v. Wheeler, 22 N. Y. 494:
‘ ‘ The executed dealings of corporations must be allowed to stand for and against both the parties, when the plainest rules of good faith so require.”
See, also, Rehberg v. Tontine Surety Co., 131 Mich. 135 (91 N. W. 132).
The judgment is affirmed.
Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred. | [
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Hooker, J.
Defendant is a resident of Dexter, Mich. Plaintiff is a New York concern. It sued defendant in justice’s court upon the following contract, filing an affidavit of amount due and statement of account. Issue was joined, plaintiff had judgment, and defendant appealed.-
The cause was tried by jury in the circuit. The affidavit was offered in evidence. Upon objection the court remarked, “I think you'would better offer your proofs.” Exception was taken. The affidavit follows:
“ Statement.
“New York, March 2, 1909, “Dr. Neil A. Gates, Dexter, Mich.,
“In Account with “Fifth Avenue Library Society.
“Total amount of contract_______________________- $79 20
“Total amount paid to date....................... 00 00
“Balance................-.................. 579 20
“State of New York, ) “County of New York, y
. s • •
“(Affidavit of Emory A. Elrod, Treasurer.)
'. “Emory A. Elrod, being duly sworn, deposes and says that he is treasurer of the Fifth Avenue Library Society of New York. That Neil A. Gates, M. D., of Dexter, Michigan, owes said Fifth Avenue Library Society $79.20, being balance due on the purchase price of a set of Rid-path Library of Universal Literature, consisting of twenty-five volumes. That said Neil A. Gates signed a contract agreeing to pay $79.20 for said set of books. That no part of said sum has been paid. That there are no counterclaims or offsets against the same. That the books were shipped to said Gates in accordance with said contract, and that the agreement has been performed in every respect by said Fifth Avenue Library Society, and that the copy of account herewith annexed is a true statement of the account as it appears on the books of the said Fifth Avenue Library Society.
“ Emory A. Elrod, Treas.”
“ Contract.
“ Carefully fill in all blanks. Subscriber should retain duplicate of this order.
“Fifth Avenue Library Society,
“ 114 Fifth Avenue, New York City.
“Dexter, Mich., April 28, 1907.
“ Express prepaid.
‘ ‘ Gentlemen: Please deliver to me one set Renaissance Edition de Luxe of ‘ The Ridpath Library of Universal Literature ’ in twenty-five volumes, bound in full leather, gilt top, for which I agree to pay you $79.20 payable as follows: $15.00 on receipt of books and $5.00 each month thereafter until the full amount is paid, default of which renders the whole amount due. The title to said books does not pass to me until they are paid for in full. I understand this order is not subject to countermand or cancellation. No agreement is valid other than embodied in this contract.
“ Paid to salesman on account-. (15.00 will remit on receipt of books.)
“ Deliver books as soon as convenient after above date.
“ Salesman, Alf. A. Simmonds.
“Subscriber’s signature, Neil A. Gates.
“ Subscriber’s occupation, Physician and Surgeon.
“ Subscriber’s business address, Dexter, Mich.
“Subscriber’s residence, Dexter, Mich.
“ Deliver books at Dexter.”
On the back of which contract the following indorsements appear:
“John A. Taylor Co.
“Gentlemen: In accordance with our indorsement advertising contract with you, we authorize you to allow a credit equal to the value of 14 volumes in the purchase price of the Ridpath Library to those persons you may select.
“Fifth Avenue Library Society,
“ E. A. Elrod, Treas.
“ Special Reduction. Authorized.
25 volumes, complete set..........................$200 00
14 volumes credit................................. 112 00
$88 00
“ Cash discount 10 per cent.
“John A. Taylor Co.
“Gentlemen: I agree to furnish a written opinion on the Ridpath Library within thirty days from receipt of complete edition and give you and the publishers the privilege of using same in advertising the library. I understand this matter is to be treated strictly confidential.
[Signed] “ Neil A. Gates.”
As it was subsequently admitted and held to make a prima facie case, there is no occasion to discuss this question further. The court held that under this contract it was necessary that the books be delivered to the defendant in Dexter, and that delivering the same to an express company directed to defendant at Dexter did not constitute a delivery to defendant at Dexter. There was no error in this. The intention, as shown by the contract, was that the defendant was to have the books delivered to him at Dexter, before becoming liable for their price. The order should receive no other construction. Hence the receipt of the books by the local agent of the express company was not sufficient. As there was conflicting testimony regarding an alleged delivery by the express agent at Dexter to defendant, the court did not err in refusing to direct a verdict for plaintiff.
It is unnecessary to discuss other questions further than to say that our examination of them has convinced us that there was no error.
The judgment is affirmed.
Bird, C. J., and Ostrander, Blair, and Stone, JJ., concurred. | [
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Bbooee, J.
Complainant appeals from a decree dismissing her bill of complaint.
The parties were married in the year 1885. Complainant filed a bill of complaint for divorce, upon the ground of nonsupport, on June 21, 1895. Defendant filed his appearance, and on July 1, 1895, an order for alimony and solicitor’s fee was made, fixing the alimony, pending the cause, at |5 per week, and the solicitor’s fee at $25. Defendant paid the alimony for 16 weeks, but did not pay the solicitor’s fee. At the time the bill was filed, the parties had one child, a girl, three years of age. This child is now between 18 and 19 years old. Defendant moved from Detroit to Cleveland shortly after the bill was filed, and paid a portion of the alimony from that city. After paying temporary alimony for four months he ceased, and for a period of about three years heard nothing from complainant. He claims he then made inquiries as to the whereabouts of his wife, and the condition of the suit; that he learned that complainant had left Detroit, but could not learn her whereabouts, and found that she had not proceeded with her suit for divorce. He thereupon, believing that she had abandoned her suit, filed a bill for divorce upon the ground of desertion, in Cuyahoga county, Ohio, and on May 25,1898, was granted a decree; service upon defendant having been obtained by publication. In that year he remarried in the State of New York, and has ever since lived with his second wife. Complainant knew of this divorce and remarriage in 1899 or 1900, and since that time has permitted her daughter to pay frequent and lengthy visits to her father, defendant herein. Defendant claims, and complainant does not deny, that since the year 1900 he has contributed largely to the support of their daughter. In the year 1908, complainant, through her counsel, made a demand upon defendant for the unpaid temporary alimony, then in arrears for about 13 years, and amounting to more than #3,000, and threatened to take proceedings for its collection.
Whereupon defendant, in May, 1908, filed his petition in this cause, praying that complainant’s bill be dismissed for want of prosecution. This petition was answered by affidavit of complainant in November, 1909, but the material facts set out in the petition were not denied. The only reason offered by complainant for her failure to proceed seasonably with her suit was that defendant had not paid the $25 solicitor’s fee ordered by the court, and her solicitor refused to prosecute her cause to decree until said fee was paid. It is her claim that she was herself financially unable to pay said fee. The record does not show that she made any demand on defendant at any time to pay it, but, on the contrary, it does appear affirmatively that she allowed her case to slumber for nearly 13 years, during 8 of which, at least, she knew that defendant had secured a divorce in Ohio, and that, relying thereon, another woman had entered into marital relations with him.
Can she be heard at this late day, and under this state of facts, to object to the dismissal of her bill of complaint upon the ground of gross laches in failing to seasonably prosecute her suit to final decree ? We are of opinion, that it would be inequitable and against sound public policy to permit her to do so. Had she been ignorant during all these years of her husband’s whereabouts, and of his acts relative to their marriage, and to his new status, a different situation would be presented. But with full knowledge of his acts, she voluntarily elected to stand aloof, and permit another woman to sustain the relationship of wife towards the man, who, if her present position is tenable, is still her husband. Equity will not lend its aid to those who are not diligent in protecting their own rights. The original controversy between the parties has become stale, the facts remote, and the witnesses, doubtless, dispersed. It would, at this late day, be extremely difficult to arrive at the truth, and no court should undertake to do so. As was said by this court in Zoellner v. Zoellner, 46 Mich. 511 (9 N. W. 831):
“ The proceeding is consequently subject to the proposition that the public peace and good order are concerned in withholding the assistance of equity from those who grossly neglect to take care of their own rights.”
See, also, Reed v. Reed, 52 Mich. 117 (17 N. W. 720, 50 Am. Rep. 247), and cases cited therein.
It is urged that inasmuch as defendant is in default in payment of alimony, he is in contempt, and therefore in no position to demand favors from a court of equity. McClung v. McClung, 40 Mich. 493. As before pointed out, no demand was made upon defendant for 13 years. It can scarcely be claimed that the demand made in 1908 was such a demand as is required to be made for temporary alimony. Such an allowance, as its name indicates, means an allowance for such temporary period as is reasonably necessary to permit the cause to proceed to a final decree. It is not contemplated that such an order shall be extended over a period of years. To meet such a situation the rights of the parties should be fixed by decree. But we are disposed to view the demand of defendant herein not as a favor, but as a matter of strict right.
The case of Abe Stein Co.v. Wood, 151 Mich. 657 (115 N. W. 1046), relied upon by complainant, is not in point. In that case and in those cases cited therein, the cause was at issue, and either party might have noticed it for trial. In the case under consideration there was neither answer nor replication, defendant of his own motion could not have brought it on for hearing, while complainant, upon taking his default, could have, at any time, proceeded to decree.
The decree is affirmed, but without costs.
Ostrander, Hooker, Moore, and McAlvay, JJ., concurred. | [
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Moore, J.
This is a bill of complaint filed for the purpose of having a conveyance of real estate made, for an alleged consideration of $5,300, by Thomas McBride and Hannah McBride to Joseph T. Delaney set aside and subjected to the claims of the creditors of the firm of McBride & Bailey, of which last-named firm the defendant Thomas McBride was a member. The defendants John J. McBride and Mamie McBride have no interest in the proceedings except as the occupants of the land described in the conveyance. The trial was had in open court. From a decree in favor of complainant the case is brought here by appeal. The question involved is one almost wholly of fact. It is insisted by appellants that complainants have failed to make a case. All of the defendants answered, but none of them signed the answer personally; they all signed by their attorneys. None of the defendants appeared upon the trial, nor was the deposition of any of them taken and offered in evidence.
The record shows that the firm of McBride & Bailey commenced business in March, 1907, at Sault Ste. Marie, Mr. McBride contributing to the firm $5,000. Mr. Bailey was not able to contribute anything to the capital of the firm, but he was the working and managing member thereof. Mr. McBride reported himself to be worth at this time upwards of $20,000. He was engaged in lumbering operations. He had an interest in a harness business. He had a logging outfit, an interest valued at $2,000 in a land contract, and 180 acres of farming land, which it is claimed was worth upwards of $7,000, and which is the subject of this litigation. In June, 1908, judgments were taken against the firm of McBride & Bailey to the amount of upwards of $6,000. Their assets inventoried about $19,000, and their debts were upwards of $15,000. At the request of McBride & Bailey a stay of execution without bond was granted upon the earlier of the judgments which aggregated about $4,500. Shortly before this stay expired McBride conveyed away all his property, and, the record shows, absented himself from Sault Ste. Marie except upon an occasional Sunday thereafter. The purchasers of the various properties before mentioned, except the grantee in the deed for the 180 acres of land, all appeared and showed they had in fact paid for the several properties they had purchased. The deed from McBride and his wife to Mr. Delaney was drawn by the attorneys for McBride & Bailey at the house of McBride. The grantee named therein was stated to be a resident of Montreal. The record satisfies us that the deed was delivered to the attorneys for McBride & Bailey and by them caused to be recorded, and, after it was recorded, was returned to them. In another proceeding the draughtsman of the deed testified that he did not know anything about the residence of Mr. Delaney.
The record discloses that, prior to the making of the deed, a son of Mr. McBride had been in possession of the farm, and that he continued in possession up to the time of the trial. From the proceeds of the sales made by Mr. McBride it appears that he paid none of the creditors of the firm. We have stated in the most general way what appears in the record. We think there was an abundance of testimony to justify the decree of the court. See Berry v. Whitney, 40 Mich. 65; Lake v. Nolan, 81 Mich. 112 (45 N. W. 376); Ferris v. McQueen, 94 Mich. 367 (54 N. W. 164); Manhard Hardware Company v. Rothschild, 121 Mich. 657 (80 N. W. 707).
The decree is affirmed, with costs.
Ostrander, Hooker, Blair, and Stone, JJ., concurred. | [
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Moore, J.
This is an action in a plea of trespass on the case. The declaration contains two counts. The first count recites several concurring acts of negligence, which, it is claimed, caused the loss of the left leg of plaintiff. The second count charges unlawful neglect by defendants after 'the injury was received and before the limb was amputated. There was but one witness sworn. This witness was the plaintiff. At the conclusion of the testimony for the plaintiff, the judge directed a verdict for defendant. Later a motion for a new trial was made, based not only upon the record as it then existed, but upon affidavits. A counter showing was made by defendant. The motion was overruled. The case is brought here by writ of error.
It is claimed by plaintiff that defendant was negligent in at least three respects:
(a) That they were absolutely reckless in attempting to navigate Baltimore Bay in the darkness of the night without a compass or other instrumentalities for such a journey.
(b) That they were negligent in the use of a towline full of kinks and turns.
(c) That they were negligent in making the trip at the time and under the conditions without proper supplies and necessary instrumentalities.
The plaintiff was about 48 years of age. He had been a fireman for more than 20 years, nearly all of the time on tugboats. The defendant had a tugboat of 27 tons burden, called the “ Frank J. Haines.” ■ It was engaged in towing barges loaded with ice from Fair Haven, Mich., to Detroit, Mich., taking empty barges back to Fair' Haven on the return trip. Fair Haven is on the west shore of Lake St. Clair, and about 37 miles nearly north of Detroit. In August the plaintiff became fireman on this tug, and continued in that capacity until his foot was caught in a towline, and he was drawn around the tow post on the 28th of October, 1904, and his leg badly crushed, so that it had to be amputated. With this general statement we may proceed with the groupings of claimed negligence.
(a) It is asserted that the captain of the tug was negligent in leaving Detroit at half past 8 o’clock in the evening, which would bring him into the vicinity of Fair Haven when it was dark, instead of at daylight, which, it is claimed, would have resulted if his departure had been delayed until half past 11 o’clock. As to the suggestion that the boat was without a compass, we do not find anything in the record upon that subject. The record discloses that the tug had made the trip daily to Fair-Haven and back, though not at the same hours as upon this occasion, during all the time plaintiff was in defendant’s employ. Plaintiff knew the situation. He knew how long it took to make the trip and the difficulties likely to be encountered. There is nothing to indicate that he did not enter upon this journey willingly. The situation, at the time of the accident will be dwelt upon more in detail later.
(5) Under this head it is said it was negligent to use a towline full of kinks and turns. It is stated the captain knew this line was full of kinks and turns before it was put upon the tug. Plaintiff testified to this effect, and that the captain directed the line to be put upon the tug-in that condition. This was a month before the accident happened. If the captain gave this direction, it does not appear why he gave it; nor does it appear that he did not expect the kinks would be taken out later when there was time to look after them. The plaintiff testified that Mr. Coleman was hired, and generally did the same sort of work he did.
“The captain when in the discharge of his duty is in the pilot house on the front end of the tug. The engineer is about the middle of the tug in the engineer’s room. The tug was 14 feet wide at its widest part. My place was just forward of the engine room. Mr. Coleman generally did the same kind of work I was doing. Mr. Coleman helped me fire; once in a while he attended to the lines. We attended to the lights, etc., and keeping them in their places, and if Mr. Coleman had to make a line fast or anything it was his duty to do so; of course, both of us had to attend to those lines. I had been given directions by the captain while Coleman and I were there on the subject of the lines, and about helping and showing him, and the captain said to me: ‘ This man here ain’t been on the boat before in his life. Of course he is a little green at the work, and you show him all you can.’ And I said, ‘Yes, I will show him all I can,’ and he said the boy had never been on the boat before and didn’t know much about it, and he said further than that: 4 Show him how to fire. He don’t know anything about firing.’ And he says, 4 Show him, maybe he will get handy around the boat.’ So I showed him all I could while I was there.”
The plaintiff’s account of the accident is as follows:
“On the day in question we left Detroit at 8:30. It was very dark that night when we got up in that same vicinity. It was a very dark night. In hauling ice back and forth we took up an empty barge and went down with one loaded. The barges are a good deal larger than the. tug. I should say a barge would be two or three times as large as a tug. On the night in question we were taking up two empty barges of about the same size. On that night we run aground twice in going up there, once opposite to Mt. Clemens, and we got off there and went on from there until we touched the mud bank. At that time we was somewhere around New Baltimore, as near as I can tell. We got stuck in the mud in the vicinity of New Baltimore. We then took the hind barge and brought .her around in front of the tug and put her crossways in front of the tug, and after we got the barge in front of the tug they worked the engine slowly up against the higher barge, up against the mud bank, so while I had the ice barge in front the engineer says, 4 You better go and fix the fire.’ So I went down and fixed the fire and went up again and went in the back end of the tug, and after I went out of the fire hole I looked back and saw that the line was slipping away from Coleman, and I ran and grabbed the line so as to get another turn on the post to hold the line, and in doing that there was a turn in the line, and when I threw my foot back I threw it in the hole, and when the line drew up there around the post it drew up against my ankle tight, and I was about feet from the post, and I hollered and screamed and hollered and Coleman also. Before I got to the post I tried to get the axe to chop the towline. The axe was right back of the cabin, about three feet and a half above the deck, and I pulled at the axe to get the blade out of there, and I couldn’t do it, and I kept hollering, and I said to Coleman, * Go to the front end of the tug and see if you can get the captain there,’ and he came back and said the captain ain’t there, so I looked through a window in the back part of the engine room, and I could not see any engineer there, and I hollered and hollered, and finally I went around the tow post twice, and after I was all crushed to pieces the captain and engineer came and said, ‘ What is the matter?’ I said: ' I am all crushed to pieces; back the tug up so I can get the line offand they backed the tug right away and stood me up on my foot and took the line off the ankle. I was drawn around the tow post twice.”
He testified that the engineer and captain were not in their places, and that if they had been, they could have saved him from haying his leg crushed. He also testified that the light on the stern did not amount to anything; that it was smoked up. He further testified that after they got him out of the rope they put him upon the captain’s bed; that they gave him no medicine, and did not bandage his wound; that he begged the captain to abandon the barges and to take him to Detroit; that during the five hours he was on the tug he lost nearly all his blood and suffered great pain. In other portions of his testimony it appeared that during the entire two months of his employment he and Mr. Coleman had charge of the lines, of placing them on deck aftér they had been in use; that he knew how to take out the kinks; that it could be done in 20 or 25 minutes; that there were times when the tug was idle at the dock when plaintiff had an hour or two at a time with nothing to do; that Mr. Coleman and himself had charge of the lanterns and lights; that the tug had the requisite number of each; that it was the duty of Mr. Coleman and himself to keep them cleaned and lighted. It is also apparent from his testimony that he regarded the pilot house as the post of duty for the captain and the engine house for the engineer, when he testified that if they had been at their posts of duty he could have been saved. His testimony, however, shows that the tug had two barges in charge, one in the front and one in the rear; that when the accident occurred they were aground for the second time; that it was very dark; that the navigation was difficult where they were; that they were lost and did not know where they were. His testimony shows that he had known the captain many years; that he had known the engineer for two years; that they and Mr. Coleman were all friendly with him. He testified that he had been in and about this little tug from soon after the time he went to work upon her, and knew her equipment. He also testified that when it came daylight, so they could see where they were, they started for Fair Haven, where Mr. Coleman was left behind, presumably to remain in charge of the barges and tug, while the captain and the engineer took the plaintiff, and, after a delay of 5 or 10 minutes, boarded the first suburban car and started toward Detroit. At Mt. Clemens they took him from the car to a hospital and put him in charge of the doctors. We discover no claim in the record of any claim of negligence after this.
Upon the motion for a new trial, the captain, Mr. Coleman, and Mr. Thomas made affidavits that the leg of plaintiff was bandaged, that they gave him stimulants and did all for him that they knew how to do. As to the application for a new trial, in view of the countershowing, it is very clear the court did not abuse its discretion in overruling the motion.
In relation to the directed verdict upon the record as made, it is clear that the plaintiff knew the condition of the line and the condition of the lights, and he and Mr. Coleman were responsible for their condition. It is also clear that, with a crew of but three persons besides the captain, and with two barges in tow, with the outfit aground, in a dark night, with the parties lost, that it should not be said that the post of duty for the captain was in the pilot house all the time, and for the engineer was in the engine house all the time. The testimony of plaintiff indicates that all of the officers had been on one of the barges to learn the situation. Neither should it be said that under these circumstances it was negligence not to start back to Detroit. The injury is an unfortunate one, but the plaintiff knew as much about the situation as anybody, and he assumed the risk of the conditions. Kean v. Rolling Mills, 66 Mich. 277 (33 N. W. 395, 11 Am. St. Rep. 492); Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145); Rohrabacher v. Woodard, 124 Mich. 125 (82 N. W. 797); Fischer v. Goldie, 132 Mich. 574 (94 N. W. 5); Goga v. Foundry Co., 142 Mich. 340 (105 N. W. 859).
Counsel say (we quote from the brief) :
“ In support of our contention under the second count, we desire to quote from 20 Am. & Eng. Enc. Law (2d Ed.), p. 201:
‘ ‘ ‘ Under the maritime law, when a seaman becomes ill or receives an injury, in the performance of his duty, it is incumbent upon the master to furnish means of cure, and to use all reasonable exertions for that purpose. He must provide medicines and medical treatment, and must see to it that the disabled seaman is properly lodged, properly nursed, and provided with proper food. This obligation lasts until the end of the voyage, and even longer, if nursing and medical treatment are still necessary to effect a cure. If such medical or surgical treatment as is required cannot be given on board, and the vessel is within a reasonable distance from a port where it can be given, it is ordinarily the duty of the master to put into that port. For neglect to perform his duty in any of the above respects the master is liable for such damages as result therefrom; but when there are proper medicines and medical directions on board a vessel, to meet the needs of a particular case, and some person who is competent to carry out the directions, the master is probably under no obligation to send a seaman ashore for better medical treatment, or to have a physician from on shore sent for.’ ”
A case bearing somewhat upon this question is Johnson v. Holmes, 173 Mass. 514 (53 N. E. 1000). We hardly know what counsel have in mind by this quotation. Our attention has not been called to any statute or any authority requiring a tug of under 30 tons burden, making short trips of less than 40 miles on the inland lakes, to have means of cure aboard for the seamen who become ill or injured. It cannot be said that under the circumstances disclosed by this record there was any such delay after daylight came, in putting into port, as to constitute negligence. As before stated, there is no claim of negligence after plaintiff arrived at the hospital.
Judgment is affirmed.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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Moore, J.
The information filed in this case charges that the respondent, Frank Bedell, on the 14th day of September, 1909, at the town of Boardman, in the county of Kalkaska, did give and furnish to one Judd Richardson a certain quantity of spirituous and intoxicating liquors, to wit, beer; said beer being then and there so given and furnished contrary to the local-option law in force in the county of Kalkaska. The respondent was convicted after a trial before a jury, and' brings the cáse to this court on exceptions before sentence. It is admitted that he was not a druggist nor a registered pharmacist. At the close of the testimony for the people, the court was requested to discharge the respondent for the reason that there was no evidence of any violation of the law. No evidence was offered on the part of the respondent. The court charged the jury, in substance, that if Bedell gave or furnished Richardson some of this beer in those rooms, the law was violated, and the verdict should be guilty as charged.
The errors assigned are stated by counsel in their brief as follows:
“The verdict should be reversed: First, because of the improper remarks of the prosecuting attorney; and,
“Second, Because the evidence introduced in the case does not show that the offense alleged was committed, and we further submit that the respondent should be discharged.”
As to the first of these propositions, the following occurred. The prosecuting attorney in his argument said:
“Those men met there that afternoon; that they met there often; that they made it their place of meeting; that it was their rendezvous.
“Mr. Gaffney: We object and except to that remark of the prosecuting attorney — this is not a charge of keeping a place where liquors are furnished or given away. The testimony concerning everything that took place there on the evening of the 14th of September was stricken from the record and counsel has no right to refer to it at all.
“The Court: I think you had better confine yourself to the testimony as admitted, Mr. Smith.
“Mr. Smith: I am simply mentioning, gentlemen of the jury, the statement that was made in open court at that time.
“Mr. Gaffney: We object to that remark as highly improper and we take exception to it.”
Mr. Smith, in closing his argument, said:
“And we will be satisfied, gentlemen, with your verdict, which, in this case, we believe, cannot be otherwise than a verdict of guilty.”
Not content with what was said at this time by the court, counsel for respondent asked the court to say to the jury:
“ I further charge you that there was some testimony of something occurring in respondent’s room on the evening of the 14th day of September, which was stricken , from the records, and I charge you that you must consider this testimony as never having been given. You are to give it no consideration, nor should you allow it to enter into your consideration of the case.”
This request was given. What occurred as to this feature of the case is not reversible error.
Should the trial court have directed a verdict for respondent ? Did he err in saying to the jury:
“Now, gentlemen, I charge you, as a matter of law, that if you find from the evidence in the case beyond a reasonable doubt, that the respondent, Frank Bedell, had liquor, to wit, beer, in his bedroom on the day in question, at the village of South Boardman, in the county of Kalkaska, and that he placed the can in which the beer was on ice, where it was accessible to persons who might frequent the room in question, and that, with his knowledge and consent, several men, including Mr. Richardson, came to the bedroom on the day in question, and that said Bedell knowingly allowed and permitted said Judd Richardson to partake of the liquor, to wit, beer, so procured by said Bedell and by him placed on ice in his bedroom, such a state of facts would constitute a giving and furnishing of liquor within the meaning of and in violation of the local-option law, as now in force in this county.”
It is claimed that respondent was in the exercise of an act of hospitality, and that the case is on all fours with the case of People v. Peterson, 156 Mich. 285 (120 N. W. 570, 21 L. R. A. [N. S.] 134). In this connection it is important to learn what is disclosed by the testimony: Judd Richardson, sworn for the people, testified as follows:
“ Am acquainted with Frank Bedell and is in the barber business and runs a shop in South Boardman. We were both living in South Boardman during the month of September of this year, at which time Bedell was running a barber shop on the same business street where the post office is. Was in Bedell’s barber shop September 14th last; first, about three o’clock in the afternoon. Bedell was there. Went in to set down and rest and stayed about fifteen or twenty minutes. Went back into the next room opening off the shop. He had some clothing, chairs, and one thing and another in there. Clothing hanging on the wall. Room was about 12x20 feet. Passed into the next room which led off from this one and which was his private room, in which there was a bed and some clothing. This room was about 10 feet square, in which was William Taylor and George Burdick. Be-dell went in with me. Burdick and Taylor were talking when I went in and were setting down, one on a chair and the other on the edge of the bed. Saw some liquor setting on the floor some time after I went in, in a quart •bottle, to which I helped myself and drank some and then set it back. Made no inquiries and did not learn whose liquor it was at the time. Just went in, saw the bottle, took it up and drank from it without being invited by any one. No one invited me in there in the first place. Followed Bedell in. He just opened the door and I followed him in. Never was in there before. Went in to talk with Bedell and did not know what his business was in the back room and couldn’t say that he was there when I drank the whisky. He went back in the barber shop. Drank some beer which set on the floor with the rest, to which I helped myself. Bedell was not there then; he had gone back into the shop. It was on the floor when I went in, by a can in which there was some ice. I followed Bedell into the room, where we stayed about five minutes and then went back. While Bedell was there Burdick, Taylor, and myself were just talking. I saw nobody drinking then, nor until after Bedell went out. I was there about one hour and took three or four drinks from one beer bottle. Bedell passed through at different times. Did not see him drink, nor was there anything said about it, nor did he say anything about drinking to me. Think he was working in the shop and occasionally came back where we were. Did not know there was any liquor before I went in and did not know where the liquor or beer came from, and did not find out. Testified before the justice of the peace in my cross-examination that George Burdick brought the liquor there, which was what I heard after I left the barber shop. Did not hear it at the time. I left the room first. While there I think Ben Allen and Ernest Murphy came in. They stated no business and came in to visit with the rest of us, and I think drank while there. They drank out of the bottles of beer on the floor, which was all that I saw. Think we all left about four o’clock, together.”
Upon the cross-examination witness testified as follows:
“ The defendant’s shop is the front end of the building at the north side of the street and faces west. It is partitioned off so that it can be entered from the barber shop through which you go back into a couple of rooms that he keeps for a bedroom. The shop door faces the east; to come in and set down and visit, which is customary, and on this day we went into the back room with Bedell and found Taylor and Burdick there, one setting on the bed and the other on a chair, and after being there a few minutes, noticed that there was a bottle of whisky on the floor. Took it up and took a drink out of it and placed it back upon the floor. Do not know whether Bedell was there at that time or not. Did not see him drink any whisky and said nothing to me about drinking liquor, nor called my attention to the liquor, nor said anything to anybody about drinking liquor in there. We were there about one hour, during which Bedell passed in and out through the room out of the back door three or four times.”
Upon redirect examination witness testified as follows:
“When I went in, did not know that Taylor or Bur-dick were there, nor that there was any liquor there. Just went in to talk with Bedell and stayed with the rest-of the boys. There were some clothes, overcoat, bed, and some other barber fixtures there. Saw no sweepings nor any great amount of empty bottles piled up. I seen some bottles in the room, but cannot say how many. Did not notice any barrels.”
There was much other testimony of a like character. As before stated, no testimony was offered on the part of respondent. A reference to the case of People v. Peter son, supra, will show it easily distinguishable from the case at bar. In the case of People v. Giddings, 159 Mich. 523 (124 N. W. 546), it was claimed that one Foster saw a small bottle of whisky on a table belonging to respondent, from which he poured a small quantity of whisky into a cup into which respondent poured some hot water, after which the witness drank the mixture. In disposing of the case Justice McAlvay, speaking for the court, said:
“ In view of a new trial which must be had, some other questions must be passed upon. One contention of respondent was that if liquor was furnished Foster by Giddings, it .was furnished to a guest and not unlawfully. There is nothing in the case which would warrant the court in giving a request to charge embodying that contention. This case is clearly distinguishable from the cases of this court relied upon by respondent. The court was not in error in refusing such request to charge.”
In the case of People v. Myers, 161 Mich. 40 (125 N. W. 701), where the respondent, who was a clerk in a hotel in a local-option county, had gratuitously, and for social purposes, furnished some dining room girls with beer in their rooms, it was held he had violated the law. In disposing of the case, Justice Blair, speaking for the court, said:
“ The Michigan act under consideration includes within its title a prohibition of the giving away of intoxicating liquors in local-option counties; the first section makes it unlawful for any person to give away such liquors, and the act has been repeatedly held constitutional in every respect. The general liquor law deals with the regulation of a legitimate business. The local-option law was intended, in my opinion, not only to wipe the business out of existence in the county, but to prevent the inhabitants of the county from obtaining liquor within the county. For the latter purpose, the act prohibits any person from giving away intoxicating liquor, and thereby heads off the numerous subterfuges which would interfere with the enforcement of the law. We have held that the statute was not intended to prohibit the individual use of intoxicating liquors, nor to invade the privacy of the home and inter fere with the owner’s decent exercise of hospitality towards his guests, but we do not think the terms of the act warrant a further limitation of its operation.”
The facts disclosed by the record before us do not show a case of the exercise of a justifiable act of hospitality, but, on the contrary, show the conducting of what is vulgarly known as a “blind pig.” If what was done by the respondent was not a violation of the law, then it permits what the legislature never intended — a method by which a substitute for the saloon may be found, while exempt from the payment of taxes and without the regulations and restrictions which experience has shown to be necessary if intoxicating liquors are to be sold.
The exceptions are overruled, and the case is remanded for further proceedings according to law.
Hooker, Blair, and Stone, JJ., concurred. | [
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Clark, J.
(dissenting). In September, 1900, plaintiff received from the auditor general a tax deed, taxes of 1885 and 1886, of N. E. % of N. W. section 33, township 13 north, range 17 west, Michigan, and a tax deed, taxes of 1891-1894 of N. % of N. W. %, section 33, said township, and in December, 1901, three tax deeds, taxes of 1895-1897, respectively, of said 80-acre tract. Each deed contained the following proviso:
“Provided, however, that this indenture is subject to the relevant conditions imposed by Act No. 229 of • the Public Acts of 1897.”
The important part of the act is section 142 thereof (1 Comp. Laws 1915, § 4140):
“No purchaser under any tax sale hereafter made or of any State tax land or any State bid hereafter sold shall enter into possession of the land so purchased until six months after he has given notice to the party or parties in interest as provided for in the preceding sections unless he shall have acquired from said parties their title thereto under conveyance from said party or parties of his or their interest in said lands.” * * *
No notice was given as provided by the statute. The plaintiff took possession of the 80 acres in 1900, “as soon as he got his.first deed,” which possession, was continuous by plaintiff and his tenants and for a short time by a grantee of plaintiff of a part of the land (in November, 1917), later reconveyed to plaintiff, to the time of commencing the suit, September, 1919. The defendant John Bishop on April 12, 1919, received by quitclaim deed of the 80 acres the title of the last holder thereof in the regular chain of title and in 1909 defendants John Bishop and Emma Bishop, his wife, received a quitclaim deed from Warren W. Britt, who, in April, 1904, received from the auditor general three tax deeds, one of the N. E. % of N. W. % of said section- for taxes of 1881-1884, 1887, 1888, another of the N. W. % of N. W. % of said section for taxes of 1887-1889 and the other-of the N. % of N. W. ^4 of said section for taxes of 1890. ■These deeds, under which defendants Bishop and wife claim, were recorded. In April, 1919, following the quitclaim deed first above mentioned, defendant John Bishop claimed to be the owner of the 80 acres in question, so advised plaintiff by letter, and caused a notice against trespassing to be posted on the land. Plaintiff in possession then filed his bill to quiet title, claiming to be the owner of the land under and by virtue of his tax deeds and also claiming by adverse possession under the general statute of limitations, 8 Comp. Laws 1915, § 12311.
Defendants Bishop and wife answered and denied that plaintiff had any right or title to the land and by cross-bill claimed title in themselves by reason of the aforesaid deeds, and asked that such title in them be quieted.
Defendant Williams was named as mortgagee in a mortgage made in 1866, appearing of record undischarged, covering the land in question, and defendant Gurney was the grantee in certain tax deeds covering part of the land, recorded in 1901. After hearing the circuit judge filed' an opinion from which we quote:
“The bill filed by the plaintiff claims title to the property and that he has been the owner thereof for a period of more than 15 years prior to the filing of the bill, claiming under and by virtue of five tax deeds covering the land in question.
“No notice was ever given under these deeds and the plaintiff went into possession immediately after securing the deeds. He claims, and the evidence fairly establishes, that he has been in continuous possession of this land ever since he went into possession thereof, which would be for a period exceeding 15 years from the commencement of such possession.
“The defendants claim that because the plaintiff went into possession under the tax deeds without giving notice, he was a trespasser and acquired no right to the land, nor was he entitled to go into the possession thereof, citing the cases of Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Corrigan v. Hinkley, 125 Mich. 125; Holmes v. Soule, 180 Mich. 526; also Huron Land Co. v. Robarge, 128 Mich. 686.
“I am. of the opinion that the defendants’ claims with reference to this matter is correct, and that plaintiff is therefore not entitled to a decree, for the reasons stated.”
Decree was entered dismissing the bill, and the cross-bill. Plaintiff has appealed.
By the briefs of counsel the important question presented is: Because of the above quoted section 4140, 1 Comp. Laws 1915, section 142, Act No. 229, Pub. Acts 1897, making entry into possession of the land by the purchaser under any tax sale or of any State tax land, or any State bid unlawful until six months after the required notice had been given, Is the plaintiff without right under the general statute of limitations, section 12311, 3 Comp. Laws 1915, chapter 9, judicature act of 1915, to claim any benefit of his possession for more than 15 years?
Plaintiff took possession of this land as a purchaser under a tax sale, as a purchaser under the tax deeds, without giving the notice required, by statute, sections 4188-4140, 1 Comp. Laws 1915. The possession was unlawful. It was forbidden by statute. The plaintiff is not aided by such possession, though continued beyond the statutory period.
In Holmes v. Soule, 180 Mich, at page 530, Justice Ostrander, speaking for the court, said :
“Defendants own the tax title and the land, subject to the right of complainant to redeem — a right which in law had not been extinguished because no proper notice to redeem has ever been given. Defendants are not aided, in law, by having occupied the land, if in fact they have occupied it (a fact not found by the trial court, and of which the testimony is not convincing), because they had no right to its possession. Corrigan v. Hinkley, 125 Mich. 125; Huron Land Co. v. Robarge, 128 Mich. 686; Holmes v. Loud, 149 Mich. 410; Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Morrison v. Semer, 164 Mich. 208; White v. Dunsmore, 167 Mich. 542; Powell v. Pierce, 168 Mich. 427; McRae v. Barber, 171 Mich. 111.”
See, also, Closser v. Remley, 195 Mich. 313; McBride v. Closser, 208 Mich. 398.
In Cook Land, etc., Co. v. McDonald, supra, decided December 21, 1908, it was held that the statute of limitations provided for in section 73 of the tax law, section 4070, 1 Comp. Laws 1915, had been repealed by Act No. 229, Pub. Acts 1897, section 142 of the tax law, section 4140, 1 Comp. Laws 1915. See, also, Holmes v. Soule, supra. In the later decisions above cited where reference is made to the statute of limitations as regards possession or adverse possession such reference must be held to be to the general statute, 3 Comp. Laws 1915, § 12311.
Whether the tax deeds to Britt are valid or invalid (see Auditor General v. Clifford, 143 Mich. 626) it is now unnecessary to determine, Britt having conveyed to Bishop and wife. The defendants John Bishop and Emma Bishop, not having appealed, cannot be given here the relief prayed against the plaintiff, nor can they be relieved as against the other defendants.
The decree should be affirmed, with costs of this court to defendants John Bishop and Emma Bishop.
Brooke and Fellows, JJ., concurred with Clark, J. | [
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Cooley, J.
This action was instituted against defendant Coats as principal and the other defendants as sureties upon a bond in the penal sum of ten thousand dollars, dated November 28, 1874, with the following condition:
“Whereas, the said Jas. GL Coats has been appointed by agreement, or agreements, agent of said Equitable Life Assurance Society of .the United States for the State of Michigan:
Now the condition of the above obligation is such, that if the said Jas. Gr. Coats shall well .and truly perform all the duties of his office as agent of said society, and shall faithfully account for all moneys of said society by him received, and shall promptly and faithfully account for and pay over to said society all moneys due on policies or renewals passed through the agency of said Jas. Gr. Coats, or return the policies or renewals in due time to said society, and shall properly preserve and deliver up, when requested, all books, papers and property of every kind belonging to said society, and shall otherwise fully do and perform all that is required by the said agreement or agreements, then this obligation shall become null and void, otherwise it shall remain in full, force and virtue.
It is understood between said obligors and obligee that this bond shall continue and remain in force until another bond or bonds, approved by the president of said society, shall be substituted in its place, and shall cover all liabilities and delinquencies of the said agent or agents, to the said obligee, whether the same shall arise under this present appointment, or under any future appointment of the said obligee, whether as sole agent or as joint agent with any other person or persons. The sureties hereto hereby expressly waiving notice of any change in the terms of the agreement or agreements, appointing such agent or agents, or change of district occupied by him or them, or otherwise, and obligee being at liberty to vary the same from time to time, as may be agreed on between the said agent or agents and obligee.”
Breaches were alleged on the failure of Coats to pay over moneys received as premiums on policies and renewals, the defaults beginning with the month of October, 1876. On the trial evidence was given by one Scott, superintendent of agencies for the plaintiff, that in September, 1876, deeming it necessary to have a cashier at the agency in Detroit where Coats was operating for the company, he went there and agreed with Coats upon an appointment, and on Coats’ recommendation appointed William H. Harrington as such cashier; that the appointment was evidenced by an agreement signed by himself for the society, and by Harrington and Coats, the material points in which were the following:
“ 1st. That said Harrington, cashier, shall upon receipt of all vouchers from said' society or elsewhere, make proper entry of the same upon the agenc}*- books of account, and make proper distribution of said vouchers for collection.
2d. All remittances of money received on account of collections or otherwise by said cashier shall be by him deposited in the Merchants’ & Manufacturers’ National Bank, Detroit, to the credit of the said Equitable Life Assurance Society.
3d. All collections made by the said Coats or received by him from subordinate agents, shall be promptly turned over and accounted for to the said cashier.
4th. All checks or drafts for the withdrawal of money from said Bank of Detroit shall be signed by the said Coats as manager, and also by the said Harrington as cashier.
5th. No funds shall be withdrawn or paid out except for the purpose of remitting the same to the said society, or in payment of commissions as the same may from time to time accrue and expenditures authorized by the said society.
6th. The reports of the monthly business shall as heretofore be rendered in the name of the said Coats, and countersigned by the said Harrington as cashier.
7th. The said cashier shall have charge of the books of account, and all vouchers, and perform all the clerical work required by the necessities of the business, and cany out instructions of said Coats, except when the same may conflict with the rules of the said society.”
The society also agreed to pay Harrington a stipulated compensation for his services, and Coats relinquished a certain percentage of the commissions previously allowed him.
Scott further testified that in November, 1876, Coats applied to him and to J. W. Alexander, vice-president of the society, for a loan of $1000, from the money collected at the Detroit agency, but this was declined until the agency could be visited; that witness went to Detroit soon afterwards, where he found that Coats had already appropriated not only the $1000 he had requested the loan of, but also $1000 taken the preceding month; that witness declined to sanction these transactions and reported them to the vice-president, while Coats in his monthly statements reported them as “ advances.” Subsequent correspondence between Coats and the vice-president was put in evidence, from which it was plain that with much fault-finding the sums above mentioned were suffered . to stand for the time as advances or loans.
The plaintiff further gave evidence that on or about March 7, 1877, an accountant of the society was sent to examine the Detroit agency, and that on the examination being made, a deficiency was discovered, in addition to the two sums standing as advances, of $2569.11. Thereupon a paper was obtained from Coats, addressed to Scott, acknowledging the deficiency as his own, stating that the sum was made up of new premiums which had accrued since January 1st preceding, asking for time to fix up the amount, and that his sureties be not notified, and making pledges of future correct conduct if he was permitted to retain his agency. In addition to this the plaintiff gave evidence tending to show that Harrington had accounted fully. On behalf of the defendants Coats testified that the letter admitting the defalcation was extorted from him by Scott, and given under a fear of losing his agency, and on the promise of Scott that he should be permitted to retain the amount of the deficiency as an advance.
There was considerable further evidence in the case, but the above is all that need be stated here. The plaintiff in the circuit court insisted that Coats and his sureties were liable for all the deficiency that was proved to exist at the agency, whether attributable to the agent or to the cashier; but the circuit judge restricted the liability to such moneys as should appear to have been collected by or paid over to Coats, or deposited to Ms credit so as to come under Ms personal control. The jury returned a verdict for defendants.
It was not disputed that there was a deficiency at the agency, and that either Coats or Harrington was responsible for it. As the money was not distinctly traced to Coats,, except by his admissions, which were retracted on the trial, the plaintiff contended that this was unnecessary, since the defendants, by their bond, had expressly made themselves responsible, not only for the conduct of Coats, but also for that of any other person who should be appointed to assist him. We find nothing in the bond which favors this view. The bond was to cover all liabilities and delinquencies of Coats under his existing or any future appointment, and whether as sole agent or joint agent with others, and notwithstanding changes in the terms of the agreement or agreements under which he should act. The appointment of a cashier, therefore, and the transfer to him of a portion of the agent’s duties, would not affect the liability on the bond. But the bond contains no undertaking on the part of the sureties to hold themselves responsible for any third person whom the society might see fit to employ in their service, however closely he might be associated with Coats in his duties, or however willing or even anxious Coats might be for Ms appointment. The sureties undertake for Coats, but not for any unknown person or persons whom the society may deem proper to engage at the same agency, even though engaging Ms services may seem for the benefit and protection of the sureties as well as of ■ the society. The sureties stand upon the exact terms of their contract.
But it is said the defendants agree to account for all moneys “ due on policies and renewals passed through the agency of said Jas. Gr. Coats”; and Harrington was but the cashier at that agency. No doubt these words were intended to bind‘the defendants for the conduct of the subordinates of Coats in collecting and accounting for moneys,, but we cannot suppose they contemplated anything further. For the selection of such subordinates Coats would be responsible, and he and his sureties ought justly to undertake for their integrity and care. But when a new office was created the case was different. The incumbent of such an office might or might not be selected with Coats’ assent, and his duties' might or might not be prescribed to suit Coats. The wishes of Coats were consulted in this instance, and he was made a party to the instrument whereby the cashier was appointed; but this was probably because Coats was to remit some portion of his compensation; it was certainly not because Coats had a legal right to be consulted, or because he could veto any appointment the society might see fit to make, and which to him might seem unfit.
As the duties were apportioned between Coats and Harrington, it was possible for the latter to receive moneys for the society without the knowledge of Coats, and to appropriate them to his own use without depositing them. In such a case they would never come under Coats’ control. It seems from the record unlikely that such was the case with the deficiency complained of, but if the plaintiff is wronged by the judgment the fault lies with the jury, not the court.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Cooley, J.
This is a judgment creditor’s bill. The object is to set aside certain conveyances made by Peter Yandermeulen, one of the judgment debtors, to or for the use of Mary A. Yandermeulen, his wife. The fact of the conveyances and that they were voluntary is admitted, but they were made some years before complainant became a creditor, and it therefore became a necessary part of his case that he should show the conveyances were made with intent to defraud either existing or subsequent creditors. Herschfeldt v. George 6 Mich. 456 ; Keeler v. Ullrich 32 Mich. 88. In his attempt to make such proof the complainant has signally failed. The evidence abundantly shows that Yandermeulen was solvent when the transactions took place, and there is no good reason to infer from the surrounding circumstances that he then anticipated the calamity which afterwards visited him and which was precipitated, if not caused, by the fraud of a partner. The provision he made for his wife was not extravagant in view of his existing circumstances, and we do not doubt its having been made in good faith. The decree of the court of chancery will therefore be affirmed with costs.
An incidental question arises respecting certain allowances to be made against the defendant Mary A. Yandermeulen in favor of Robert H. Brown, a brother of the complainant, and who was made a defendant because of holding certain securities which the complainant sought to. reach. Ye have onty to say of this part of the case, as we have said of the other, that we think the decree actually rendered was substantially just.' The defendant Brown having taken'a separate appeal, the decree as to him will be affirmed with costs to the defendant Mary A. Yandermeulen.
The record is exceedingly voluminous, and as the questions are all questions of fact, a review of them in this opinion is not important. The defendant Brown does indeed question the right of the court to determine his claims in this suit, but the right is clear. lie was holding in complainant’s interest securities belonging to Mrs. Yandermeulen against'her will and without any lien; and if any one could complain of the decree, it would be the owner of the securities. She, however, does not complain.
The other Justices concurred. | [
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Calvin C. Burt in person for the motion. | [
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W. W. Osborn for the motion. | [
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Cooley, J.
The plaintiffs sued to recover their charges for sawing for defendants a large quantity of lumber under a contract, a copy of which appears in the margin. The larger portion of their bill had been paid, and the defense to the remainder was that the lumber was damaged by bad sawing, and also that great delay occurred in doing the work, from which the defendants suffered damages to a considerable amount.
The case was sent by the circuit court to a referee, and comes before us on his findings and on a bill of exceptions. The bill of exceptions is peculiar in that it is silent respecting the proof of the plaintiffs’ case. It is of course to be assumed that the plaintiffs made a jprima facie case, but in the absence of any statement how this was done and on proof of what facts, we are somewhat embarrassed in considering the exceptions of the plaintiffs, who are the party now complaining.
The first exception is to the admission of evidence on the part of defendants that they had made a measurement of the lumber sawed under the contract, which they completed on the Monday preceding the trial; which was on the tenth day of April, 1878, and more than a year after the sawing was completed. A reference to the contract will show that this was not such a measurement as was contemplated by its terms. But in the absence of any explanation we cannot say that this was inadmissible. A sti’ict compliance with the terms of the contract in respect to .measurement may have become impossible, ór may have been waived; and under such circumstances the parties must arrive at the quantity as best they might. Measurement by either or both as delivery was made would have been admissible, and under any circumstances would have been proper, to guard against frauds or mistakes on the part of the scales agreed upon. And if measurement was not made at delivery, it might be made afterwards.
The second exception relates to the following question put to the defendant Field when on the stand as a witness, and the answer thereto: Question. “ Have you heard anything which goes to affect the correctness of the scale made by the plaintiffs? when, and from whom?” Answer. “From Frank "Whittaker and John Newton, within the last three weeks; one within the last ten days.” This is said to be hearsay. Had the witness stated what he had heard, it would have been improper, but it might.be entirely competent for him to state that he had but recently had occasion to doubt the correctness of the plaintiff’s scale. We are without explanation here as we are in respect to the preceding exception ; but it is possible for this evidence to have been proper, and we must presume it was.
A third exception, resting on the same ground as the first, requires no further notice.
The referee found that the plaintiffs began the sawing July 6, 1876, and continued it to December 1, 1876, having then sawed 2,323,356 feet; that they resumed sawing April 14,, 1877, and completed the job June 9, 1877.
That defendants found fault with the sawing as it progressed, and that 300,000 feet of this lumber was injured by bad sawing to the amount of $300.
That the defendants suffered damages by reason of the sawing not having been completed as agreed, to the amount of $414.79.
That after deducting from the plaintiff’s bill the payments made and the damages suffered as above, there remained due to the plaintiffs $1011.91.
The damages suffered by the defendants from the delay were computed by the referee as follows: Value of time spent in caring for the lumber the second year that should have been sawed the first, $150; additional expenses in moving the lumber to Lockwood, $175 ; interest on value of logs which by reason of the delay defendants could not have the benefit of the first year, $89.79. All these items are objected to, as is also the evidence upon which the referee computed them. But we do not find in the record any valid objection, either to the evidence or to the conclusions. It is true that, as to this last item, the defendants were not entitled to interest'as such, but the circumstances may have been such that the rate of interest constituted a very fair measure of the damages actually suffered. Suppose, for example, the defendants by the delay were deprived for a year' of the opportunity of putting their lumber upon the market as they intended and desired, and in the meantime the market price remained stationary, nothing could be nearer exact justice than to award damages equivalent to the lawful interest. The damages will not be interest, but the rate of interest will very justly measure them.
It is urged on behalf of the plaintiffs that it was not made to appear before the referee that defendants could have sold their lumber the first year if they had had it. As to this we do not know how the fact was. The bill of exceptions does not contain all the evidence, and the presumption is that all the referee’s conclusions were supported by proofs. More over if an article has a market value, it is presumptively salable. Some other objections to the recovery are based upon the supposed absence of sufficient showing, and are equally untenable.
We discover no error in the action of the circuit court confirming the report of the referee, and it must be affirmed with posts.
The other Justices concurred.
Article of agreement made this seventh day of April, A. D. 1876, by and between E. & J. F. Grosvenor of Nelson, Kent county, Michigan, of the first part, and Ellis & Field of the city of Grand Rapids, county and state aforesaid, parties of the second part, witnesseth: that the said parties of the first part agree to move their steam saw-mill at their own expense on to a spot cleared for the purpose by the second parties, and to manufacture the lumber on lot four (4) and the n. e. J- of the s. e. J- of section two, town ten north of range eleven west, also the timber cut from O. Smith’s land and put into the lake described below, into lumber of such kinds and dimensions as the parties of the second part may direct and in a workmanlike manner, to the entire satisfaction of the parties of the second part (who, if at any time should not be satisfied, shall make it manifest by notifying the parties of the first part), sort the same as it comes from the saw into such lengths, kinds and qualities as the second party may direct, and place it on a car (for that purpose) for $2.50 per thousand feet.
The parties of the first part agree to take all the lumber which may be injured by being badly sawed or handled and pay for it what it would have been worth had it not been damaged.
The parties of the second part agree to pay the parties of the first part $3.50 per thousand feet for sawing, assorting and piling upon ear the above-described timber, payable as follows, viz.:
On the first of each and every week, one dollar and fifty cents ($1.50) per thousand feet on all which was sawed the week previous, shall become due and payable; the balance, one dollar ($1) per M. shall become due and payable on the first day of July, A. D. 1877, without interest.
The measurement to be made at expense of said party of first part, h}' Myron Buck, so long as said measurement shall be satisfactory to both first and second parties, but when not satisfactory to either parties, then all full piles which were sawed the week previous shall be measured by first and second parties (or some one or two appointed by and paid for by each party, paying one-half), and on said amount sawed the week previous (che measurement to be made the first of each week), one dollar and fifty cents ($1.50) per thousand feet shall become due and payable at time of making such measurement; the balance (one dollar per thousand feet) shall become due and payable the first day of July, A. D. 1877, without interest.
• The parties of the first part agree to move and furnish the second parties, without charge, the use of their railroad track, switches and trucks, for the purpose of handling lumber and to take the logs from the lake on the south-west corner of lot four, as described above. ^The parties of the first part, agree to commence sawing on the contract as soon as practicable, and to.be in full running order by the first day of June next, and to average sawing not less than twenty thousand feet per day, from said first day oí June, A. D. 1876.
Said first parties agree to furnish said second parties, without charge, the use of land and said track at Lockwood station for piling and shipping their lumber-, whenever they may desire to do so.
The parties of the first part agree to pay the parties of the second part three dollars and fifty cents ($8.50) per week for board of each man employed on the job, provided the board shall be satisfactory, the board bill payable weekly.
The parties of the first part agree to furnish the parties of the second part, power (without charging) sufficient to work up the slabs coming from said logs, or as many of them as they may wish to cut.
[Signed] Ellis & Field.
E. & J. F. GmosvENOit. | [
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Graves, J.
This case comes up on appeal by respondents Barnes in a proceeding to condemn property under the Railroad Law approved May 1st, 1873. The jury who made the finding were attended by the circuit judge and their report was confirmed by the circuit court.
The first objection is that the taking includes premises fronting on a street, and that the jury allowed nothing for damages on that account. Por aught that appears the objection is gratuitous. The conclusion is not a proper inference from the record. The jury were required “ to ascertain and determine the damages or compensation which ought justly to be made,” and they reported the result in general terms, and this was sufficient. It was not necessary to specify what damage was allowed for each separate cause. There is no implication from the award that the jury omitted any ground of allowance depending on street advantages. In the absence of circumstances indicating that facts evident to the jury and bearing on the amount of damage were not fairly taken into account, the presumption is that they were. The charge against the petition and award, of lack of due certainty in describing the property, contains the same defect it assumes to suggest.
The “ objections ” are required to be “ specified,” and the appellate court is confined to the specifications; all other objections are to be deemed waived. The obvious meaning is that the error and defects complained of shall be pointed out with such particularity that the attention of the appellee and of the court will be at once precisely directed to them. In case that is done there is no room for misapprehending the questions. The subjects of controversy are at once understood by all alike, and when they come to be decided the points ruled are certainly and clearly defined. The charge in question is general. It is called an objection, but there are no ■specifications. The petition and award are to be explored to find out, if practicable, the points aimed at by the objection. They are not “ specified ” or explained. But if we disregard ¡this want of sufficiency in the notice of appeal, and resort to ■appellants’ brief for a specification of their objections, no ¡serious fault is disclosed. The jury made a personal inspection and seem to have had no difficulty, and we are not able to find the want of certainty imputed. The effect of the ■first description is to allow a strip thirty feet in width on -each side of a given line, across the entire premises, except that in crossing the parcel thirty feet wide derived by Barnes from Fox, there is allowed on the south side of such given line, a strip twenty-five feet in width instead of thirty. The description of the adjoining piece on the north seems to be well enough. The exterior line is made to start at the east termination of the northerly outside line of the other parcel, ■and it is also made to close there. The courses and distances given determine the shape and quantity, and fix the position.
The second objections to the form of the award of damages and compensation are untenable. The amount allowed to .¡appellants is evident. The nature of their interest has been -admitted from the first. There has been no question about it. Their position is as owners. JVIary A. Patón and Isaac Lounsbury were found to be interested as mortgagees, and the fact has not been disputed. The jury by their award first expressed the sum of their allowance to all, and then •specified how much of that sum was for Mary A. Patón and how much of it for Isaac Lounsbury; the necessary result being that what remamed of the largest amount, after deducting the two smaller ones due to the mortgage interests, was found for appellants as holders of the equity of redemption. The means for getting at their quota are given without the possibility of error, and the process is too simple to be made a handle. Smith v. Hartley 10 C. B. 800: 5 E. L. & E. 383.
The point based on the omission of the jury to specify a particular amount for each of the appellants, is admitted to be overruled by East Saginaw & St. Clair R. R. Co. v. Henham 28 Mich. 459, and the objection that the finding gives more land than was called for in the petition is expressly abandoned.
The claim that a bill of exceptions is a fit expedient for bringing up questions on appeal under the Railroad Law has been seriously questioned, and the practice cannot be taken for granted. But as all the evidence, as the parties admit, has now been sent up, and the return is claimed to be a full one, the point does not call for a positive decision.
The remaining questions relate to evidence, and they suggest a few preliminary words in regard to practice.
When the law provided how the tribunal, should be constituted for these cases, and prescribed the method to be observed, it obviously contemplated that the practice respecting the admission of testimony should be as simple as a due regard to substantial justice would permit. It was not intended to leave the fate of the determination had in view to any finespun theories, or to the refinements which are not uncommon in trials at the circuit. They were not supposed to be necessary to the fundamental purpose or beneficial working of inquests of this nature, and no provision was made for the certain attendance of any one presumptively qualified to deal with them. The statute plainly assumes that the jury may conduct the inquiry without the aid of any legal expert, and under circumstances in which it would be difficult, if not impracticable, to preserve technical or hair-drawn questions in a shape to be reviewed. And were the niceties of nisi prims to .be .insisted on, the proceeding would speedily break down under the perplexities and embarrassments due to its own methods. The conclusion to which these and other considerations lead is that a very large discretion in admitting and rejecting testimony is left to the jury, or the attending officer, whenever there is one, and that when the case is brought here by appeal the award cannot be disturbed on account of such decisions, unless it is fairly evident, in view of the facts and circumstances, that the ruling was not only inaccurate, but was a cause of substantial injustice to the appellant in the matter of the result.
On referring to the particular objections as they are noticed in the brief, the first is that M. S. Hadley, when cross-examined, was not ruled to give his opinion on tlie assumption of a state of things which he denied. He had just stated that if the ability to run the paper mill to its full capacity was impaired, the damages would be greater than an amount he had named,' and in reply to the question on which the point arises he observed that what had been done had not interfered at all with the business of the mill; and the complaint is that he was not compelled to swear whether the damages would not be increased if there was an interference sufficient to stop three machines in the winter. This inquiry was not important ; still whatever there was of substance was elicited.
The point cannot prevail that it was incompetent to ask what the land in question was worth for farm use. The utility of the property for that purpose cannot be deemed a circumstance forbidden to the consideration of the jury. Its exclusion would have been a stretch of discretion. There is no occasion for an opinion relative to its weight. The claim that the inquiry about the artesian well, and the effect of cutting off the place for piling wood, was restricted to appellants’ prejudice, is not well founded. The range given to the introduction of testimony on the part of appellants was extremely liberal. It would be a waste of time to comment at large upon the volume of evidence returned. The premises were examined by the jury, and the advantages needéd and those cut off were explained by witnesses. The previous opportunity for piling wood and the opportunity left were understood by the jury, and the appellants were allowed to state what they had expended on the partly-completed well. It was being sunk by a contractor pursuant to an agreement entitling him to a specific price on its completion, with a flow of water sufficient to supply the mill, and what still remained to bring it to a condition to supply the mill and answer the contract was uncertain and unknown. The appellants were allowed to give their opinion of the value of the premises before and after the change caused by the ‘ailroad, and the amount of injury received, having reference to the condition, character and uses of the property, and it is evident that the course the judge allowed the investigation to take, deprives the objection of all merit. '
The last objection is that “ the award of the jury is against the law and the evidence in the case.” This is insufficient to raise any question. It does not comply with the statute. It points out nothing, and leaves it impossible for the court to say, on the face of the record, what objections “shall be deemed to have been waived.” Were this held good, it would be the same as saying the others were not necessary, because the language is broad enough to include them. But, were the objection sufficient, the claim which the brief sets up under it has no force. ■
It is said that the allowance to appellants is larger now than at the former inquiry, and therefore they are entitled to costs. The premises are not true. The award to them is less now than before.
The objections failing, the order below will stand affirmed and costs be given against the appellants.
The other Justices concurred. | [
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Cooley, J.
This case was once before in this court, and the opinion then given resulted in a new trial. Stockle v Silsbee 41 Mich. 615. It is ejectment to recover lands the original title to which is held by the plaintiff. The lands were returned for the non-payment of taxes of 1869, 1870, 1871 and 1872, and were bid in for the State in each of those years. Afterwards the State sold them, and defendants hold the State conveyance. The plaintiff claims that the tax levy was void in each of the four years; and the controversy turns wholly upon this allegation. The land consists of one hundred and twenty acres lying in one body in the township of Fair Haven, Huron county. The objections to the tax levy are numerous, and some of them we think too plainly frivolous to require even a mention. The others are the following:
I. The highway tax for 1869 is said to have been excessive. The valuation of the land for that year was $180, and a highway tax of $3.15 was levied. The regular highway assessment is in labor, but this, when not performed, becomes a money tax, which under the statute cannot exceed one per cent, of the valuation. Comp. L. §§ 1228, 1241. But the township has authority to vote a general levy for highways ; and this seems to have been done for the year in question, and the sum voted goes to make up the highway tax which the rolls show. It is objected that a tax thus voted constitutes a part of the township tax, and must appear in the column of township taxes on the roll. Case v. Dean 16 Mich. 12. We think, however, that the supervisor was correct in adding it to the other highway tax. Comp. L. § 1002.
Unfortunately, however, the township voted a larger sum than the statute permits. The authority is expressly limited to a sum not exceeding five mills per centum upon the aggregate valuation of the property in the township (Comp. L. § 1269); but the amount actually voted and levied exceeded eight and one-half mills per centum. This excess, under the previous decisions of this court, was sufficient to defeat any sale made for an aggregate of taxes of which this highway tax formed a part. Lacey v. Davis 4 Mich. 140; Buell v. Irwin 24 Mich. 145; Wattles v. Lapeer 40 Mich. 624.
II. The equalization of assessment rolls by the board of supervisors for the year 1869 is said to be defective, but the criticism made is altogether over-nice and technical. The record of the board shows that the committee on equalization made a report, to which was appended a tabular statement giving the names of the townships, the assessed valuation, the increase or decrease, if any was proposed, and the proposed equalized valuation. This report, the record shows, after an alteration in respect to Fair Haven, “was accepted and adopted as the equalization of the county.” The objection to this seems to be — First, that neither the report of the committee nor any resolution adopting it was in writing, and that there can be no sufficient record without it; and second, that the equalization was of real and personal property both, while under the statute the board are to judge of the relative valuations of real estate onty. The first objection aims at matter of form only. It might perhaps be better if all reports and resolutions in deliberative bodies were made and offered in writing, but there is no law or custom requiring it. The second objection is equally baseless. The board, after determining whether the relative valuations of real property are disproportionate, are required to make the additions or deductions they find necessary to or from the whole taxable property of the township. Comp. L. § 993. That is what was done here.-
III. It is further objected that there was no proper action of the Board of Supervisors determining the amount of money to be raised for county purposes. The record upon this subject is as follows: “ Committee on finance submitted the following report, which on motion was accepted, and the resolution to raise the respective sums adopted: For State tax, $1980.27; poor fund, $400 ; contingent fund, $6261.68.” Here again is no written resolution, but the clerk has taken down the substance of one submitted orally, and the record is as full and complete as is to be expected. There is no defect in matter of substance.
IY. In the levy for 1870 was included a township tax of $150. The township had voted only $125, and it is therefore claimed the levy was excessive. But the township board had a right to increase the sum voted when necessary (Comp. L., § 751); and it must be presumed in the absence of any showing to the contrary that they did so in this case. Upton v. Kennedy 36 Mich. 215; Stockle v. Silsbee 41 Mich. 615.
V. There was levied for the year 1870 a tax of one-tenth of a mill on the valuation, in aid of the County Agricultural Society. The statute authorized such a tax only when the sworn certificate of the president and secretary of the society, that the society itself had raised for the year $100 or more, was presented to the supervisors. Comp. L., § 2163. When the trial took place the county clerk could find no such certificate in his office; and the plaintiff requested the court to submit to the jury the question whether one was ever made. This was refused. The presumption is that the proper certificate was presented. Upton v. Kennedy 36 Mich. 215 ; Hogelskamp v. Weeks 37 Mich. 422. The only evidence appearing in the record which could have been submitted to the jury as having a contrary tendency was that of a member of the Board of Supervisors for the year, who testified that he had no recollection whether a certificate was or was not presented. But this mere negative declaration was of no force, and there was nothing in it to go to the jury as tending to rebut the legal presumption that the action of the supervisors was based upon a proper certificate.
YI. For the year 1871 there was no equalization of the assessment rolls at the October session, as is required by Comp. L., § 993. It appears, however, that one was made by the board at its June session, as is required every fifth year by Comp. L., § 301. As the board is composed of the same persons in June and in October, and a new equalization would be an idle formality, we are not inclined to hold that a failure to go through with that formality in October is fatal.
YII. The warrant appended to the tax roll for 1871 indicates that a surveyors’ tax of $13.53 was included in the levy; and for this it is claimed there was no authority of law. The statute, however, authorizes a levy to be made in some cases on particular parcels of land, to meet the cost of their survey ; Comp. L., § 595; so that presumptively this tax may have been lawfully laid. There is no showing and no claim that any part of it, was levied on the land in controversy.
YIII. The most serious defect which is pointed out in any of the proceedings, is found in the supervisor’s certificate to the assessment roll for the years 1870, 1871 and 1872. Sec tion 991 of tlie Compiled Laws, under which these assessments were made, is as follows:
“When the supervisor has reviewed and completed the assessment roll, it shall be his duty to attach thereto, signed by him, a certificate, which may be in the following form : ‘ I do hereby certify that I have set down in the above assessment roll, all the real estate in the township of-, liable to be taxed, according to my best information, and that I have estimated the same at what I believe to be the true cash value thereof, and not the price it would sell for at a forced or auction sale; that the said assessment roll contains a true statement of the aggregate valuation of the taxable personal estate of each and every person named in said roll, and that I have estimated the same at the true cash value, as aforesaid, according to my best information and belief.’ ”
The form given in this section was followed by the supervisor, except that the words “ and not at the price it would sell for at forced or auction sale” were omitted. As the circuit judge sustained the levy, he must have reached the conclusion that the observance of the statutory form was not compulsory.
The early statutory form did not contain the words which the supervisor has omitted (Comp. L. 1857, § 806), and the change in the form was made in a revision of the tax law in 1869. If the change in the form whereby these words were brought into it had no important purpose in view, we may well hold that the proceedings are not affected by the supervisor continuing the use of the form which had been in use before. But it is a matter of common knowledge that the change was made for the very purpose of effecting an important change in the assessments. It was notorious that supervisors had been in the practice of evading the previous law and making assessments at a mere fraction of the real value of the property, when sworn to make it at the cash value. It was very easy to excuse the evasion of duty under the pretense that the cash value of property was only what it would bring if forced upon the market; and the law was amended for the very purpose of taking away this excuse. It will not do to say that such an amendment is unimportant and there fore may be disregarded with impunity ; it goes to the very essentials of the assessment, and was intended not only to control that, but also through that all the subsequent proceedings. There is not the slightest doubt the Legislature intended that the adoption of the form given, or one that should be equivalent in substance, should be compulsory in every instance. The failure to adopt it is, therefore, a fatal defect. Clark v. Crane 5 Mich. 151.
IX. It appears, then, that there was an excessive levy for the year 1869, and that for 1870, 1871 and 1872 there were no valid assessments and consequently no valid taxes. Under such circumstances it remains to be seen whether it is possible to support the deed under which the defendants claim. If so it must be supported upon the State bid for 1869. No defect was pointed out in the proceedings for that year with the single exception that the levy was excessive.
The reason for holding a tax sale void when the levy is excessive is that the sale is for the aggregate of all the taxes, so that the tax title is based as much on what is illegal as upon what is lawful. It is said, however, that this rule is changed by the existing tax law, whereby it is provided that no sale for delinquent taxes shall be held invalid unless it shall be made to appear that all legal taxes were paid or tendered ; and further, that all taxes shall be presumed to be legally assessed until the contrary is affirmatively shown. Comp. L. § 1129. Plaintiff contests the validity of this section, contending that when one’s land is taken for a levy any portion of which is illegal, it is to that extent taken without due process of law. Defendants on the other hand affirm that the power to sell arises from the default in making payment of the legal taxes, and that the sale for these, being-in due process of law, is not affected by the irregularity of including a sum not legally levied. This is the view that has been taken in Iowa. Eldridge v. Kuehl 27 Iowa 160 Parker v. Sexton 29 Iowa 421; Rhodes v. Sexton 33 Iowa 540.
"We had occasion to take some notice of this statute in Upton v. Kennedy 36 Mich. 215. It was relied upon in that case in support of a sale based upon an illegal return; but we were of opinion that it was not the purpose of the statute to render unimportant any of the proceedings which before were jurisdictional. As we found in that case that there was no return upon which any sale could be based, it did not become necessary to decide whether the statute would be effectual to support a sale when the only infirmity was the inclusion of an illegal levy among those which were legal in making up the aggregate sum for which sale was made. If it is within the competency of the Legislature to pass an act which shall have that effect, there is no doubt that it would prove exceedingly serviceable in the collection of the public revenues ; and if the State interest alone were in question it might be a politic and useful statute.
But the public convenience is ,to be subserved in all cases, without disturbing the foundations of private security; and we must see whether these are respected by the act under consideration. To determine this we must have in mind the method provided for enforcing tax liens upon land. That method is to add together all the taxes for the year, with the interest or penalty for delay, and expenses of advertising and sale, and then to sell sufficient of the land to pay the aggregate sum. The competition of bidders is directed to "the. quantity of land that will be accepted for the sum charged against the whole parcel taxed, and the'lowest quantity which any one offers to take will be set off to him from the north end of the parcel. If therefore when only five dollars are lawfully due, ten dollars are charged, and the whole tract sold for the payment, it may well be said that the south moiety is unlawfully taken, because it is presumable that whoever would pay the whole sum for all the land would pay half the sum for half the land. No doubt there would be many cases in which this would not hold true; but no one could assume — certainly no court, as a foundation for legal judgment — that purchasers in bidding upon quantity would be wholly uninfluenced by the amount of the tax to be paid, and would demand the same quantity of land when a small sum was to be paid that they would if it were large. On the contrary there must be a legal presumption that the land demanded bears some proportion to the sum to be paid, and that when the amount is in part illegal, some portion of the land sold has gone to satisfy an illegal demand, and would not have been sold at all if only what was lawful had been called for.
It is said, however, that the illegality should not defeat the sale, because the power to sell sprung under the law from the delinquency in the payment of the legal tax, and the sale being made under lawful power, any irregularity or excess in its execution is not necessarily fatal, but may be cured, prospectively, or retrospectively, by legislation, as the statute in question attempts to do. But the lawful power is a power to sell so much only as is sufficient to pay such taxes as the law has authorized ; and no attempt has been made to execute such a power here. It is not a case of mere excess in the execution of the power by the officer entrusted with it; for the sum to be demanded was so made up that he could not, if he would, have offered to sell for the legal tax alone ; he must sell for the amount reported to him as due, and was powerless to confine the sale to the lawful tax and lawful charges, however willing he may have been to do so.
A plausible argument might be made in support of such a sale if the statute made suitable provision for a remedy in behalf of the party whose land is thus appropriated. In Connecticut it has been held competent to provide by statute that execution sales shall not be held invalid by reason of the officer having charged excessive fees, and included the amount in the sum for which sale was made. Beach v. Walker 6 Conn. 197 ; Booth v. Booth 7 Conn. 350 ; Welch v. Wadsworth 30 Conn. 149. But the officer in such case would be liable to the party wronged by the extortion, and what the party lost in property would be recovered in money. It has not been suggested that in this State there would be any corresponding remedy against the county treasurer, who is the officer by whom tax sales are made. In most cases he is in no way connected with irregularities and can have no knowledge of them; he receives a list of lands with the charges upon them, makes the sale and accounts for the money to the authorities apparently entitled to them; and when # he has done this, there is no ground for holding him liable for illegalities not chargeable to himself. Dickins v. Jones 6 Yerg. 483; Lincoln v. Worcester 8 Cush. 55; Crutchfield v. Wood 16 Ala. 702 ; Abbott v. Yost 2 Nenio 86. And there certainly could be no remedy against him in a case where the lands were struck off to the State for the want of bidders, as was the case here; for no money passed through the treasurer’s hands on State bids, and his connection with the case is limited to the entries he makes on his books, and to his returns to the Auditor-General. Upon these entries and returns no action could arise at the common law, and no statute has given one. The remedy, if any exists, must be found in following the illegal levy, and finding the person, officer or municipality by which the money obtained thereby was finally appropriated.
It is sometimes matter for serious regret that a court is compelled to declare a sale for taxes invalid where apparently no great injustice has been suffered; but when the necessity arises it is commonly because tax officers persistently disregard the limitations which are imposed by express statute upon their authority, hiere irregularities the courts may overlook, but they are powerless to sustain illegal action. In the case of Wilson v. McKenna 52 Ill. 43, it was said that a similar statute had long been a dead letter on the statute books of Illinois; but at last when some one claimed rights under it, it was held unconstitutional. See also Reed v. Tyler 56 Ill. 288. We find no escape from the same conclusion.
It is said with much truth that the owner of the land in these cases is entitled to no consideration, for he might have paid the legal tax and avoided the sale. But while this is true, it is also true and is notorious that tax delinquencies are often the result of accident or fortuitous circumstances; such as the death or disability of owners, errors in making or offering to make payment, neglects or omissions of officers, and so on. The purpose of the law is to make the sale of the land for the lawful tax and charges the sole penalty for the failure to pay, whether the failure is blameable or excusable. Equitable circumstances cannot come in to affect the sale, whether they operate one way or the other. If one by accident or misfortune loses the land, he is helpless ; if he defeats a sale because the official steps leading to it are in disregard of the law, the blame primarily should rest upon the officers themselves.
There is one fact having much to do with tax delinquencies which has hitherto received little attention, though deserving much. It is the heavy penalty that is imposed when payment is not promptly made. Were this penalty merely interest— even the highest interest individuals may take — nothing could be said against it; but twenty-five or fifty per centum is added in order to induce a more prompt payment into the State treasury; and this too at a time when the State treasury is overflowing. No doubt it has the effect intended in a great many cases, but it also fails in a great many, and the rapid accumulation, especially when some portion of the tax is illegal, becomes then a reason for refusing to pay at all. This is particularly the case when special taxes like those for drains, are laid; for these are generally heavy, and are not unfrequently laid in total disregard of the law. One who finds it impossible or inconvenient to pay such a tax when it comes due is not likely to be brought to the mind to do so by the addition of a penalty afterwards, and the larger the penalty the greater is his inducement to seek refuge in litigation. Ve have no doubt that much of the large accumulation of local taxes now carried by the State is due to excessive penalties; and so long as the State carries them, local officers are encouraged to make excessive levies for local purposes. They get the money even when the tax is illegal; the State carries the burden, and the owner contests his liability. However unwilling the courts may be to aid him, the heedlessness with which the several steps are taken in tax proceedings often leaves them no choice.
The judgment must be reversed with costs and a new trial ordered.
Campbell and Graves, JJ., concurred.
(1129) Sec. 163. “ No general or special tax authorized to be raised by tbe laws of this State, and which shall be assessed upon any property in any township or ward within the State, shall be held illegal or invalid for want of any matter of form in any matter or thing not affecting tbe merits of tbe case, and which shall not prejudice the rights of the party assessed; nor shall any sale of property for non-payment of the taxes thereon be invalid unless it shall be made to appear that the legal taxes, costs, and charges were tendered to the proper officers within the time limited by law for the payment of all such taxes; or, in case of the sale of real estate, unless it shall be made to appear that all legal taxes assessed ■upon such real estate, together with all legal costs and charges thereon*, were tendered to the officer authorized to receive such redemption money, within the time limited by law for the redemption thereof; and all taxes assessed upon any property in this State shall be presumed to 'be legally assessed until the contrary is affirmatively shown; and no sale of real estate for non-payment of the taxes thereon shall be rendered invalid by-showing that any paper, certificate, return, or affidavit required to be made and filed in any office is not found in the office where the same-ought to be filed or found; but, until the contrary is proven, the presumption shall be, in all cases, that such certificate, paper, return, or affidavit was made and filed in the proper office.” | [
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Graves, J.
The wards Arelia and Kittie L. Kinney are the sole heirs at law of William Kinney, deceased, and their guardian Mrs. Harrett is their mother, she having married Alexander Harrett since the death of their father. Mrs. Harrett in her character of guardian brought ejectment against the defendants for forty acres of land in Kent county. The defendant James Kinney, the father of William Kinney, deceased, was in possession and the defendant Childs claimed title under him. The plaintiff effected a recovery and was put in possession. A new trial was taken afterwards and the defendants prevailed, and the plaintiff claims that the court committed error in allowing the defense.
The plaintiff made out a paper title from the United States to the decedent William Kinney, the descent to the ward, and the title of Mrs. Harrett as their guardian to sue for the possession. The title so established purported to fix the legal right in the plaintiff and was prima facie valid and sufficient to entitle the plaintiff to recover. So far as it need be noticed the evidence which the defense was permitted by the court to adduce and make use of to defeat the plaintiff is in substance as follows: In 1855 the land was owned by one John Hamilton and he orally agreed to sell it to the defendant James Kinney for $350 ; that the latter immediately paid $10 and went into possession and so .continued until his dispossession in this case; that he paid Hamilton the consideration, and some time after the oral agreement but before full payment, received from Hamilton a written contract; that this contract was kept by him in a bureau in his house and was never parted with or disposed of with his knowledge or assent; that his son, the decedent, was about sixteen years of age and lived at home but worked around at different places as opportunity presented ; that in the fall of 1857 and the winter following, the defendant James Kinney was absent in Wisconsin, and that the decedent in that interval surreptitiously got possession of the land contract, and on a subsequent occasion obtained in execution of that contract the deed to himself from Hamilton which completes the chain of title to decedent; that Hamilton concerted with decedent, and that the deed was given and received in fraud of the rights of the defendant James Kinney.
It is proper to say that this version was not admitted. On the contrary it was strongly controverted. But as the result was against the plaintiff the question is presented whether the court erred in allowing the deed to be defeated by parol evidence that it was fraudulently givén to decedent when it was due in fact to the defendant James. The common law rule which excludes all defenses in ejectment which are not legal has been abrogated in many parts of the Union. The courts of the United States, however, still adhere to it. Fenn v. Holme 21 How. 481; Hooper v. Scheimer 23 How. 235 ; Lessee of Smith v. McCann 24 How. 398 ; Johnston v. Jones 1 Black 209 ; Foster v. Mora 98 U. S. 425. And it also remains in force in this State. Whiting v. Butler 29 Mich. 122; Ryder v. Flanders 30 Mich. 336; Conrad v. Long 33 Mich. 78; Jeffery v. Hursh 42 Mich. 563; Buell v. Irwin 24 Mich. 145. And if the defense now made against the plaintiff’s title must be considered as existing in equity and not in law, the court erred in admitting it; and we think it must be.
If a valid contract relation subsisted between Hamilton and the defendant James Kinney, and the former was bound to convey to him, and was not warranted in conveying to the son, as claimed on the part of the defense, yet the title of James was only in equity. He had no legal title and could not gain one as the identical effect of a grant from Hamilton to young Kinney. His interest was still equitable and not legal. He had never received any legal cónve,yance or rather any transfer of the legal title, and the contract did not assume to give possession or any right to it, and whatever may have been his due in point of justice he was subject to the force of that consideration. The deed was not positively void. It passed the legal title from Hamilton to young Kinney, and the defendant James has no power to cause it to enure to him except by showing his equitable right and title, as against the grantee, and the rule referred to will not permit such a showing in ejectment. The opinions given in Cleland v. Taylor 3 Mich. 201 and Trask v. Green 9 Mich. 358, 368, and based on the effect of the statute against frauds, have no application. It is much to be regretted that so much expense should have been incurred in the assertion of a case by the defense which, if valid, could only be set up in another jurisdiction.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Graves, J.
The plaintiffs were prosecuted by the same information for a joint attempt at burglary, and1 were convicted. The burglary was set forth as at common law, but the pleader saw fit to add that Harris was armed and "Williams not armed. As we understand the record, it is now contended that, by this means,, the information assumed to implead the two as having 'jointly attempted to commit what, if the attempt had been carried out, must have been a separate and distinct crime by each, and would not have been a single joint offense on the part of both ; and the argument is dyawn from the regulations in the statute which limit the penalty in case a burglar is armed, etc., to twenty years' imprisonment, and in other cases to fifteen years.
The two provisions, it is said, make two different crimes, and the information, in setting up that one party was armed and the other not, imputed an attempt by each to perpetrate a crime different from that alleged to have been attempted by the other. The point suggests several considerations into which we need not enter. It may be a question whether, where two make an attempt in concert, and one is actually armed, it will not apply to both. For the purpose of apportioning the punishment, the statute distinguishes between simple burglary and burglary when attended by certain facts which are naturally regarded as increasing its enormity. In case the perpetrator is armed with a dangerous weapon, and there is some one lawfully in the dwelling house, the penalty may be twenty years’ imprisonment; but if the circumstances of aggravation are not present the imprisonment cannot exceed fifteen years. Burglary is a common law offense, and not a crime ordained by legislation; and it is a single or identical offense, as it was originally. The statute does not carve it into two. It exposes it to different grades of punishment, according as it iftay or may not be accompanied by the incidents specified in the statute. It maybe laid according to the common law, and without referring to the facts on which the imposition of the higher penalty depends; but in such case the punishment cannot exceed the lesser penalty. The accusation will support nothing more. Where the facts are supposed to warrant it, and the higher penalty is contemplated, the crime must be described with the attending facts which justify that penalty.
The various breakings resembling burglary which have been declared criminal by the legislature, are distinguishable from the ancient offense of the common law. They owe their definition to the statute, and the statute must be consulted to ascertain their ingredients. When they are charged they must be set forth in substance, as in the statute, with all descriptive incidents, whether negative or otherwise. Koster v. People 8 Mich. 431; Byrnes v. People 37 Mich. 515. Recurring to the objection in the record, and its failure on its own theory is evident. It construes Comp. L. § 7561 as constituting a distinct crime composed of the facts specified therein, and denoted by being described as in the statute; and, proceeding on this foundation, the claim is put forth that when the information said that Harris was armed, it charged him with an attempt to commit the offense in that section, whilst Williams was accused of an attempt to com mit the offense in the section following. The premises do not warrant the conclusion. Pursuing the theory contended for, the statement that Harris was armed was not enough to meet the requirements of section 7561. The further fact that there was some person lawfully in the house, was indispensable.
The statement that one was armed and the other not, standing alone and without the other facts belonging with it to constitute the aggravated case described by the statute, is wholly destitute of force. It adds nothing to the essential charge and detracts nothing from it. It is mere surplusage, and the legal effect of the information is to charge the parties with a joint attempt to commit a burglary punishable by not to exceed fifteen years’ imprisonment.
It is next objected that the information is bad for want of due certainty in showing that something was done as commencement of a burglary. The averment is that they “ feloniously and burglariously to break and enter the said dwelling house, did insert between the upper and under sash of an outside window of said dwelling -house a certain instrument, to wit: a knife.” We think this is a sufficient allegation to sustain the judgment. It embodies a charge of the beginning of a breaking burglariously with intent to effect a burglarious entry. The specific intent is set up, and along with it and in pursuance of it the direct application of a kind of force which common knowledge recognizes as employable for such ends.
Nothing further is necessary. The judgment is affirmed.
The other Justices concurred. | [
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Cooley, J.
Defendants in error brought suit upon a promissory note purporting to be made by Snyder, bearing date October 1, 1871, and payable one day after date. Upon the note was an indorsement of $29.69, under date of July 1, 1873, and another of $24, dated 1874, without month or day. Defendant pleaded the general issue, with notice that he did not undertake and promise, etc. within six years.
The suit was begun May 2, 1879, so that all remedy upon the note had been barred for some time when suit was instituted, unless saved by payments. The statute provides that indorsements shall not be evidence of payments for this purpose (Comp. L., § 7164); and it therefore became necessary for the plaintiffs to make proof of the payments or of one of them, provided the defense of "the statute of limitations was well made.
The plaintiffs insisted before the justice that the notice should have been that the cause of action did not accrue within six years; and that non assumpsit within six years was insufficient. When this objection was made defendant asked leave to amend, but it was denied. Thereupon the case was submitted; there being no evidence of the payments which were indorsed on the note, though a witness testified that no others had been made.
If the notice of defense was technically insufficient, defendant should have been suffered to amend. He gave a notice, the purpose of which no one could have misunder stood, and the objection to it was purely technical. Pleadings in justices’ courts must not be subjected to such strict rules ; it is mischievous to permit it, and defeats the purpose for which these courts are created: Wilcox v. Toledo, etc. R. R. Co. 43 Mich. 584. But we are inclined to hold the present notice sufficient. Defendant thereby apprised the plaintiffs that he relied upon the statute of limitations; and had he said that in the fewest possible words it would have been sufficient. Instead of doing so he undertook to put his notice in legal form, and failed to make it express the exact legal idea. But it nevertheless notified the plaintiffs of the defense relied upon, as completely as if it had been correct by the test of strict rules. This is all that should be required in justices’ courts.
It is claimed in the brief for defendants in error that the evidence that no other payments were made on the note was sufficient to justify the justice in finding that the two which were indorsed were made. But there is no ground for such a claim. There was an entire absence of evidence respecting them; and even if it were admitted they were made, the time of payment needed to be shown, to give them any importance.
The judgment must be reversed, with costs of all the courts.
The other Justices concurred.. | [
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