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Sherwood, J.
This is an action of replevin, to recover for the value of property taken by the marshal of the village of Nashville, to satisfy a tax for the year 1882, levied upon the property of the plaintiff by virtue of a warrant issued by the authorities of the village in pursuance of Act No. 179, Laws 1873. No question arises upon the pleadings. The case is before us upon findings of fact and law solely.
The court finds the defendant was marshal at the time the suit was commenced, and as such was engaged in collecting the taxes for the village under his warrant, duly issued upon an assessment properly and regularly made, according to the provisions of the act above mentioned, for the collection of the tax assessed against the plaintiff, and upon which the defendant seized and held the property at the time the writ was sued out against him in this suit; that the village of Nashville was incorporated in 1869 ; and that in March and April, 1879, the election of officers of said village took place, and the action contemplated in sections 14 to 21, inclusive [of ch.i] of Act No. 179, Laws 1873, for re-incorporation, was had, and the declaration of re-incorporation duly filed April 16,1879, under the act; that ever since that time all the functions of said village have been performed under the provisions of the last-named act; that the warrant was signed by the assessor and president of the village, and directed to the marshal thereof, dated November 29, 1882, and was otherwise in form as required by section 7 [of ch. xxvi] of said Act No. 179; that the assessment roll and warrant were apparently a compliance with the act; and that plaintiff refused to pay his tax when demanded by the collector before suit was brought. ’
The following are the findings of law upon the facts :
“ 1st. The action of the electors and officers of said village so had in. March and April, 1879, had the effect of adoption by said electors and officers, under color of law, of a special charter containing the provisions of, and with the powers conferred or attempted to be conferred .by, said Act No. 179 of the Laws of 1873.”
“ 2d. Said act was not, so far as the re-incorporation of villages is concerned, repealed by implication by the General Village Act of 1875.”
“ 3d. An inquiry into the validity of said Act No. 179 involves an inquiry into the validity of the re-incorporation of said village, and cannot be determined in this case.”
“ 4th. Defendant did not unlawfully detain plaintiff’s property described in the writ in this cause, and defendant had at the commencement of this action, and still has, by virtue of said levy, a lien upon said goods and chattels to the amount of $91.80, and he is entitled to judgment therefor, and for costs of this suit.”
Judgment was accordingly entered for the defendant for the amount of the tax, with costs of the suit.
The plaintiff’s counsel claims that the facts are insufficient to support the judgment; that the proceedings by which his property was taken were not authorized by any law of this State; that the only valid charter of Nashville was that of 1869 ; and that the law of 1873 (under which a re-incorporation is claimed) is unconstitutional, and the tax proceedings ou their face are void.
"We do not think the position of plaintiff’s counsel tenable. The circuit judge very properly declined to consider the constitutionality of the law of 1873.
The law of 1869, under which the first organization of the village was had, made the marshal collector of taxes. 2 Sess. L. 1869, p. 850, Act 356, sec. 27. Under an amendment to the charter of the village (Act 20 of 1872, p. 45, § 43), it was made the duty of the treasurer of the village to collect the taxes. The reorganization took place under the general law of 1873, under which the marshal was again required to collect all taxes levied by the village (Act 179 of 1873, p. 391, ch. vi, § 17) ; and a provision making the same requirement is contained in the law of 1875, which it is claimed repeals the law of 1873. Pub. Acts of 1875, p. 77, Act 62, ch. ix, § 14.
The plaintiff claims that the law of 1873 was not in force when the reorganization took place, and that it was unconstitutional ; and that the authority of the defendant depended upon its validity. This substantially denies the corporate existence of the village. If the law is valid under which the taxes are levied, there is no showing or pretense but that the proceedings to the sale of the property are regular, and the taxes assessed reasonable and authorized.
It appears that the village of Nashville has been acting in its organized capacity as a village for the last twelve or thirteen years under the laws of the State passed for that púrpose; and the circuit judge finds that the taxes for 1882 were regularly assessed and spread under the laws governing said village, and that the warrant attached' to the roll, commanding the marshal to collect the tax against the plaintiff, was in pursuance of said laws and regular and fair on its face, and the levy was made in accordance with law. It does not appear that any person except this plaintiff has ever questioned the validity of the village organization, and it has several times been recognized by the Legislature of the State. The corporate organization of a village and the validity of the charter cannot be attacked in this collateral manner. This has been substantially decided by this Court heretofore.
We do not regard the case as calling for a decision upon the question of the effect of the law of 1875 upon that of 1873.
The finding of the circuit judge is sufficient to support the judgment rendered at the circuit, and it must be
Affirmed with costs.
The other Justices concurred. | [
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Per Curiam.
This appeal represents the second time this matter has been brought to this Court. Currently, defendant Jackson Plating Company and its insurer,, defendant Transportation Insurance Company, appeal by leave granted from an order of the Workers’ Compensation Appeal Board finding them liable to plaintiff Sam Hudson for benefits ordered by the referee with no right of apportionment from defendant S & S Polishing Company and its insurance carrier, Bituminous Casualty Insurance Company.
In 1972, plaintiff, who had contracted emphysema due to his employment in the plating and buffing industry with ten different firms over a twenty-year period, redeemed his workers’ compensation claims from his various employers for $15,000. Plaintiff subsequently returned to work in 1975 for defendant Jackson, with which he had never been previously employed. Plaintiff performed the same work for Jackson as he had performed for his previous employers (polishing and buffing metals) and was forced to quit after six weeks after redeveloping emphysema. Plaintiff filed a claim for workers’ compensation benefits against Jackson in July of 1975. The claim was initially brought to this Court on appeal from the wcab’s finding of liability against Jackson. This Court affirmed the finding of liability, but remanded the matter to the wcab for resolution of the issue whether Jackson was entitled to receive apportionment from plaintiff’s prior employers under the former provisions of § 435 of the Workers’ Disability Compensation Act, MCL 418.435; MSA 17.237(435). 105 Mich App 572; 307 NW2d 96 (1981), lv den 412 Mich 936 (1982).
Following an evidentiary hearing on the remanded issue before the referee, the wcab reversed the decision of the referee in favor of Jackson and held that Jackson was not entitled to apportionment benefits from S & S.
The sole issue now on appeal is whether the prior redemption agreement shielded defendant S & S from apportionment liability to Jackson. It is undisputed that, in the absence of the redemption agreement, Jackson would have had a right of apportionment against S & S pursuant to those dictates of § 435 which existed prior to the statute’s 1981 amendment. Unfortunately, there is no authority to be found which addresses the question whether a redemption agreement between a claimant and his then prior employers bars a subsequent employer, who was not a party to the agreement, from seeking apportionment from a prior employer.
Johnson v Valley Grey Iron Foundry, 58 Mich App 574; 228 NW2d 469, lv den 394 Mich 769 (1975), cited by the parties, bears important factual distinctions. The plaintiff in Johnson was last employed by defendant Saginaw and had been previously employed with defendant Valley. After developing an employment-related lung disease, as well as sustaining a groin injury while working for Saginaw, the plaintiff filed a claim for workers’ compensation benefits against both Saginaw and Valley. Thereafter, Saginaw and the plaintiff entered into a redemption agreement, absolving Saginaw from liability for all claims which the plaintiff possessed against it. The plaintiff then obtained an award against Valley arising from his lung disease, and Valley sought apportionment from Saginaw. This Court found that, since the plaintiff could not file a claim against Saginaw for his lung disease because Saginaw was not his last employer under § 435 as it then provided, the redemption agreement operated to absolve Saginaw only from liability arising out of the plaintiff’s groin injury claim. Moreover, we found that the redemption agreement did not affect Valley’s liability to the plaintiff for the lung disease claim nor Valley’s right to contribution from Saginaw, as Valley was not a party to the agreement. 58 Mich App 582.
Here, plaintiff entered into a redemption agreement with his then last employer, S & S Industries, Inc., and certain prior employers who would be subject to apportionment liability to S & S Industries for plaintiff’s occupational disease claim. In contrast to the agreement in Johnson, the instant agreement shielded the defendant employers from all potential liability under the Workers’ Disability Compensation Act. The agreement specifically provided:
Defendants agree to pay $15,000.00 in redemp tion of all liability under the Michigan Workmen’s Compensation Act, including medical, surgical and hospital expenses, past, present or future.
This language evidences an intent by the parties to effectively redeem both the employers’ direct liability to plaintiff and any derivative liability which could arise through apportionment to plaintiff’s then last employer, S & S Industries, which was a party to the agreement.
However, subsequent to the execution of the agreement, plaintiff returned to the industry in 1975 and became employed for the first time by defendant Jackson before his emphysema redeveloped, thereby entitling plaintiff to collect additional benefits against Jackson. Unlike the facts in Johnson, Jackson faces a challenge against its claim for apportionment because of a redemption agreement which was intended to insulate the prior employers from all future liability arising from plaintiff’s emphysema.
Nonetheless, relying on Johnson, we could conclude that the redemption agreement should have no effect on Jackson’s claim for apportionment because Jackson was not yet involved and was not a party to that agreement. Such á result, however, would lead to the inevitable result that plaintiff would obtain a windfall. Although plaintiff is entitled to receive the entire amount of his award from Jackson, he would nonetheless indirectly receive a substantial share of the award from his prior employers, via their pro rata payments of contribution to Jackson. Such a result would effectively nullify the provision of the redemption agreement absolving the prior employers from all future derivative liability under the act to the benefit of plaintiff.
Nor do we suggest that Jackson should be liable for the entire award. Jackson should not be put in this position merely because it was not possible for it to participate in the redemptipn agreement. Moreover, imposition of such liability on Jackson would undermine the purpose behind the former apportionment provisions of § 435, "to distribute equitably the liability for a disease caused by similar employment conditions among the employers who [are] responsible for those conditions.” Derwinski v Eureka Tire Co, 407 Mich 469, 488; 286 NW2d 672 (1979).
We conclude that the only equitable solution is to reduce the amount of the award (owed by Jackson) by the amount Jackson would have been entitled to recover by way of apportionment but for the redemption agreement. The wcab wrongfully concluded that it had no authority to grant such a remedy. Jackson is entitled to a reduction of this type where neither the apportionment statute nor the redemption provisions of the act provide for or forbid crediting under these circumstances and where the remedy is necessary to prevent plaintiff from obtaining a double recovery not contemplated by the act. See Thick v Lapeer Metal Products, 419 Mich 342, 350-351; 353 NW2d 464 (1984).
Plaintiff has already received $15,000 from his prior employers pursuant to the redemption agreement, which intended to redeem the employers’ total liability for the occupational disease from which plaintiff again suffers and from which he now seeks recovery against Jackson. Although plaintiff is entitled to recover additional benefits against Jackson, Jackson’s liability should be limited to its pro rata share in order to effectuate both the policy against double recovery, Thick, supra, and the purpose behind the former apportionment provisions of § 435, Derwinski, supra.
Applying the former provisions of § 435, Jackson would have been entitled to apportionment from only those parties with which plaintiff was employed for at least six months in the ten-year period prior to his last day of work with Jackson. At the evidentiary hearing before the referee, the parties stipulated that plaintiff was employed with Jackson for two months and that, during the relevant ten-year period, he was employed for Leslie Polishing for twenty-four months and for S & S for eight months. It was further stipulated that during the ten-year period no other employer in the industry employed plaintiff for at least six months at a time.
Pursuant to the terms of the stipulation, the calculation of apportionment would have been as follows:
Total Period of Employment — 34 months
Leslie Polishing & Buffing — 24/34 = 70.59 percent
S&S Polishing Company — 8/34 = 23.53 percent
Jackson Plating Company — 2/34 = 5.88 percent
We consequently remand this matter to the Workers’ Compensation Appeal Board for reentry of a judgment against Jackson in the amount of 5.88 percent of the amount of the full benefits which plaintiff had previously been awarded.
Reversed and remanded.
After a delay in the decision of the referee, this Court entered an order directing the wcab to decide the matter within twenty-eight days. The order also terminated the continuing jurisdiction of this Court, thereby ultimately requiring Jackson to apply for leave to appeal the wcab’s decision.
MCL 418.435; MSA 17.237(435) was amended as of January 1, 1981, to eliminate references to apportionment of liability among the claimant’s last and prior employers. This Court, however, in Forsythe v Valley Consolidated Industries, 139 Mich App 211; 361 NW2d 768 (1984), lv den 422 Mich 944 (1985), held that the Legislature intended the amendment to have only prospective application. It is undisputed that the preamendment apportionment provisions of § 435 are applicable to the instant case.
MCL 418.835; MSA 17.237(835). | [
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Per Curiam.
Defendant was convicted, following a jury trial, of larceny from a person. MCL 750.357; MSA 28.589. He was thereafter sentenced to serve from three to ten years in prison, with the sentence to run consecutive to a sentence he had been serving in a halfway house. Defendant appeals and ráises three issues, one of which is dispositive.
Defendant first argues that there were comments and questions made by the trial judge during the course of trial which were improper and, therefore, denied him a fair trial. We agree. This Court, in People v Sterling, 154 Mich App 223, 228; 397 NW2d 182 (1986), discussed the propriety of questions and comments by a trial judge during a jury trial:
A trial court may question witnesses in order to clarify testimony or elicit additional relevant information. See MRE 614(b); People v Pawelczak, 125 Mich App 231, 236; 336 NW2d 453 (1983). However, the court’s discretion in questioning witnesses is not unlimited. The court must avoid any invasion of the prosecutor’s role and exercise caution so that its questions will not be intimidating, argumentative, prejudicial, unfair or partial. People v Cole, 349 Mich 175; 84 NW2d 711 (1957); People v Jackson, 97 Mich App 660, 662; 296 NW2d 135 (1980). The test is whether "a judge’s questions and comments 'may well have unjustifiably aroused suspicion in the mind of the jury’ as to a witness’ credibility, . . . and whether partiality 'quite possibly could have influenced the jury to the detriment of defendant’s case.’ ” People v Redfern, 71 Mich App 452, 457; 248 NW2d 582 (1976), citing People v Smith, 64 Mich App 263, 267; 235 NW2d 754 (1975). [Emphasis in original.]
Among the trial court’s more egregious Comments in the case at bar were the following:
The Court: And who were these people on top of you at that time?
The Witness: Andre, Ernest, and his brother Rodney.
The Court: How about that. We got him. He doesn’t know who did it, but they were all there.
Mr. Lazar [Defense Counsel]: You make a good witness, your Honor.
The Defendant: That’s for sure.
Q. (By Mr. Lazar, continuing): Let me ask you this, Mr. Arnold, you then testified on direct examination after these minutes went by that you got up and recognized that something was missing from you, is that correct, or—
A. Right.
Q. And when you got up, and noticed that there was something missing, as you say, where were these three individuals at that particular moment?
Mr. Thomas [Prosecutor]: Your Honor, I have to object to that characterization as noticing that something was missing. The person said that it was ripped off from his arms—his neck—it was broken off—
Mr. Lazar: I object to that, your Honor. He said —on my notes it indicates—
The Court: I don’t care what your notes indicate. He said he saw Andre take the chain from his neck.
Did you not testify to that?
The Witness: Yes.
The Court: He said he saw him take the chain from his neck.
Mr. Lazar: I believe he never testified to that. All right. He says he noticed things missing when he got up.
The Court: He had it when they started beating him and it is his testimony that he saw your client take a watch, saw your client take a chain—he testiñed to all of that sir.
Mr. Thomas: Your Honor, he’s mixing apples apd oranges.
The Court: He certainly is. You see the witness has testified to chains being removed from him on several occasions, Counsel, and you have to get into the time frame. That’s why we want to talk about time frame. What he’s saying that that answer was when he was on the ground, he says that he testiñed that he didn’t know who took his chains off when he was on the ground because he had more than one, but he does know who took the chains. That, he does know, that on one occasion, Mr. Moore took his chain off.
Mr. Lazar: I am not sure if I agree with your Hohor.
The Court: I don’t care whether you agree with me or not. I’m talking about the testimony of the witness.
Mr. Lazar: All right. Let me ask the witness—
The Court: He’s saying—wait a minute. Wait a minute. He can only answer the question. He says —when you asked—that’s why you ask these questions, do you know who took your chains. He answers, no, but he says—he’s talking about when he was on the ground. That is consistent with his testimony as I recall it to be. But he did testify earlier that chains were taken at various times and at one time one chain was taken by your client, one more, or like one chain was taken by this other Andre fellow and then there was some other chain was taken—
The Court: He [defendant] stopped Andre and all of them and took his watch at that time. Is that what you’re saying?
The Witness: Yes. It is.
The Court: We got him [defendant] taking the watch. [Emphasis added.]
The questions and comments by the trial judge clearly crossed the line of judicial propriety. The judge’s comments and questions were argumentative, prejudicial and invaded the prosecutor’s role. Indeed, the judge’s comments of "How about that. We got him” and "We got him taking the watch” amount to a finding from the bench of defendant’s guilt. Clearly, the judge was not the neutral and detached magistrate of justice that any defendant is entitled to expect in a criminal trial. The judge’s conduct so taints the trial that we have no choice but to reverse defendant’s conviction and sentence and remand the case for a new trial.
We do note that, while defense counsel did object at least at one point during the judge’s comments, not all of the judge’s comments and questions were objected to. There exists a conflict in this Court concerning whether a defendant must object to a trial court’s conduct ór questioning in order to preserve the issue for appellate review. In Sterling, supra, this Court concluded that it is unnecessary to object to a trial judge’s comments and questions since defense counsel may be understandably reluctant to challenge the judge’s own behavior on the bench. See also People v Smith, 64 Mich App 263; 235 NW2d 754 (1975); People v Redfern, 71 Mich App 452; 248 NW2d 582 (1976). However, this Court in People v Burgess, 153 Mich App 715; 396 NW2d 814 (1986), concluded that, where there was no objection at trial, the issue would not be reviewed absent manifest and serious error. The Burgess Court relied upon People v Bouknight, 106 Mich App 798, 807; 308 NW2d 703 (1981), rev’d on other grounds 419 Mich 458; 355 NW2d 592 (1984), in reaching this conclusion. However, an examination of Bouknight reveals that the cases relied upon by Bouknight in reaching this holding, People v Therrien, 97 Mich App 633; 296 NW2d 8 (1979), and People v Stinson, 88 Mich App 672; 278 NW2d 715 (1979), did not involve the issue of improper comments or questions by trial judges.
This panel is not of one mind on the issue of the necessity of objecting to preserve the issue for appeal. However, we do agree that defense counsel’s objection in the case at bar was sufficient to preserve the issue.
While our disposition of this issue renders it unnecessary to consider defendant’s remaining issues, we note that defendant may have a meritorious issue concerning violation of the 180-day rule in regards to a speedy trial. However, the record before us is insufficient to determine whether the delay in bringing defendant to trial is attributable to the prosecutor or to defendant himself. Therefore, defendant is free to raise this issue in the trial court after remand and establish the appropriate record for the resolution of this issue in the trial court.
Defendant’s conviction and sentence are vacated and the matter is remanded to the trial court for further proceedings consistent with this opinion. Furthermore, the Recorder’s Court is directed to assign this case to a new trial judge.
Judges Gillis and Beasley would require at least one objection on the record at some point during thé, proceedings. Judge SawyeR would not require an objection for the reasons stated in Sterling, supra. | [
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Cynar, P.J.
John and Etta Foltynewicz appeal as of right from a March 25, 1985, order of the circuit court granting the people summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10), finding no genuine issue of material fact.
The trial judge granted the people’s motion for summary judgment on the basis of the "Second Amended Complaint for Forfeiture.” In the complaint, the people alleged that the dwelling and real estate located at 2850 Ewing Road, Cedar Creek Township, Muskegon County, were used to facilitate the distribution and sale of controlled substances and were used as a container for such controlled substances.
The people filed a motion for summary judgment arguing that the property was subject to forfeiture pursuant to MCL 333.7521; MSA 14.15(7521). Two affidavits were filed by the people and relied upon by the trial judge in granting the people’s motion. The trial judge also relied upon the guilty-plea transcript of Etta Foltynewicz.
The trial court in its lengthy opinion made the following findings of fact:
(1) There was a valid search and seizure of 2850 Ewing Rd., residence on October 21, 1982.
(2) The house was being purchased and occupied by John and Etta Foltynewicz, and a co-purchaser was Delores Foltynewicz Crain.
(3) That substantial quantities of marijuana, some cash, scale, pills, tin cans with money were located in the house.
(4) That John Foltynewicz engaged in the regular sale of marijuana.
(5) That his house was periodically used as a point in which to keep the marijuana.
(6) He possessed the marijuana at the residence of 2850 Ewing Rd., for the intent to deliver to others.
Appellants do not dispute these factual findings on appeal.
The trial judge concluded that there was no dispute as to any genuine issue of material fact, and the real property located at 2850 Ewing Road was subject to forfeiture under two separate sections of the controlled substances act. First, the property was subject to forfeiture as it was property used as a "container” for illegal substances in violation of subsection (c) of MCL 333.7521; MSA 14.15(7521). Second, the property was subject to forfeiture pursuant to subsection (f) of MCL 333.7521; MSA 14.15(7521) because it was a thing of value "used to facilitate” a violation of the controlled substances act.
Appellants appeal the trial court’s ruling on both grounds, alleging that the trial judge erred as a matter of law. Appellants also argue that there is a dispute as to an issue of material fact.
Appellants contend that the trial court erred in holding that the subject real property could be forfeited as a container pursuant to MCL 333.7521(c); MSA 14.15(7521)(c). We agree.
Subsections (a) and (b) of § 7521 describe property which may be subject to forfeiture for violation of the controlled substances act. Subsection (c) provides:
Property which is used, or intended for use, as a container for property described in subdivision (a) or (b).
This Court, in People v 8120 Ravine Road, Alamo Twp, 151 Mich App 358; 390 NW2d 242 (1986), held that as a matter of law a house is not a container for purposes of subsection (c).
The trial court erred in granting the people’s motion for summary judgment on the basis of subsection (c) of § 7521 of the controlled substances act. As a matter of law a dwelling house is not a container.
Appellants further argue that the trial court erred in ruling that the subject real property could be forfeited as a thing used to facilitate a violation of the controlled substances act. We agree.
Subsection (f) of § 7521 provides that the following property is subject to forfeiture:
(f) Any thing of value that is furnished or in tended to be furnished in exchange for a controlled substance or an imitation controlled substance in violation of this article, traceable to an exchange for a controlled substance or an imitation controlled substance in violation of this article, or used or intended to be used to facilitate any violation of this article including but not limited to money, negotiable instruments, or securities. [MCL 333.7521(f); MSA 14.15(7521X0.]
At issue is the construction to be given the language "[a]ny thing of value that is . . . used or intended to be used to facilitate any violation of this article including but not limited to money, negotiable instruments, or securities.”
The rules for statutory construction were concisely stated in Nicholas v Michigan State Employees Retirement Bd, 144 Mich App 70, 74; 372 NW2d 685 (1985):
Briefly stated the rules are: (1) when a statute is unambiguous, further construction is to be avoided; (2) if an ambiguity exists, the intent of the Legislature must be given effect; (3) a construction which best accomplishes the statute’s purpose is favored; (4) statutes are to be interpreted as a whole and construed so as to give effect to each provision; (5) specific words in a statute are given their ordinary meaning unless a different interpretation is indicated; and (6) respectful consideration is to be given to the construction of a statute used by those charged with its application.
The statute does not expressly identify real property as "any thing of value” used to facilitate violations of the controlled substances act. Because the statute is ambiguous, this Court must give effect to the intent of the Legislature.
While statutes are presumed to be constitutional, forfeitures are not favored by the law. People v Raymond Campbell, 39 Mich App 433, 438; 198 NW2d 7 (1972). As a result, statutes providing for forfeitures are to be strictly construed, and a court will not indulge in a constrained construction to create a forfeiture. Campbell, supra; 37 CJS, Forfeitures, § 4, pp 8-9.
Subsection (f) provides for forfeiture of any thing of value in several circumstances. First, any thing of value that is "furnished or intended to be furnished in exchange for a controlled substance” is subject to forfeiture. Second, any thing of value that is "traceable to an exchange for a controlled substance” is subject to forfeiture. Third, any thing of value that is "used or intended to be used to facilitate any violation” of the controlled substances act is subject to forfeiture. The people in this case contend that a thing of value, i.e., the property at 2850 Ewing Road, is subject to forfeiture because it was used or intended to be used to facilitate violation of the controlled substances act.
Under MCL 333.7523(3); MSA 14.15(7523X3), the Legislature provides that the title to real property forfeited under the controlled substances act shall be determined by a court of competent jurisdiction. Unless the Legislature contemplated that real property was subject to forfeiture in some manner pursuant to § 7521, § 7523(3) would be superfluous. It is appellants’ contention that real property is subject to forfeiture under subsection (f) only when it is furnished or intended to be furnished in exchange for a controlled substance or traceable to an exchange for a controlled substance. Appellants argue that a thing of value that is used or intended to be used to facilitate any violation of the controlled substances act does not include real property because of the limiting proviso "including but not limited to money, negotiable instruments, or securities.”
We conclude that the proviso including but not limited to money, negotiable instruments, or securities rfelates only to that portion of subsection (f) which provides that any thing of value is subject to forfeiture which is "used or intended to be used to facilitate any violation of this article.” We so conclude because of the lack of a comma between the word "article” and the proviso.
By holding that the proviso excludes a dwelling house from forfeiture under that portion of the statute which provides for forfeiture of any thing of value which is "used to facilitate” a violation of the article, a dwelling house may still be forfeited if it is furnished or is traceable to an exchange for a controlled substance, and § 7523(3) would not be rendered a nullity.
We believe that had the Legislature not desired to limit the type of property subject to forfeiture, it would have inserted no limiting words whatsoever. Instead, the Legislature would have simply placed a period after the word article. If it had done so, any thing that was used to facilitate a drug transaction could have been seized. Instead, the Legislature chose to add an illustrative list. That list includes money, negotiable instruments, and securities. Clearly, the Legislature did not intend to specifically limit the type of property to those specific items. On the other hand, the items in the illustrative list are all items of property radically different in kind from real property. Nothing in this statute indicates a legislative intent that the situs of a drug transaction is subject to forfeiture merely because it is the situs. Had the Legislature intended a house to be subject to forfeiture if an illegal drug transaction occurs within the house, it could have clearly stated so. In other sections of the statute, the Legislature specifically provided that an aircraft, a vehicle, or a vessel was subject to forfeiture. It provided that books, records, research products, microfilm, tapes, and data are subject to forfeiture. It provided that containers for controlled substances were subject to forfeiture. However, nowhere in the statute does the Legislature indicate its intent that real property is subject to forfeiture merely because it is the situs of a drug transaction.
We conclude real property is subject to forfeiture if it is furnished in exchange for a controlled substance or if real property is traceable to an exchange for a controlled substance. However, given the precept that the law does not favor forfeiture and that statutes providing for forfeitures are to be strictly construed, we hold that the Legislature did not express an intent in subsection (f) that real property which is merely the situs of a violation of the controlled substances act be subject to forfeiture.
Reversed in accordance with this opinion. | [
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Per Curiam.
This case comes to us by way of an order of the Supreme Court remanding the case for a determination whether res judicata applies to bar a reduction in plaintiff’s workers’ compensation award.
On November 25, 1975, while plaintiff was working for defendant C & H Industries, the middle finger of her right hand was severed by a machine on which she was working. In September, 1976, plaintiff filed a petition for workers’ compensation benefits, and on July 19, 1978, a hearing referee granted plaintiff benefits in the amount of $79 per week from November 25, 1975, to June 30, 1978, and from then until further order of the Bureau of Workers’ Disability Compensation. The referee relied on Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973), lv den 391 Mich 780 (1974), in setting the rate at $79 per week. In Jolliff, we held that minimum compensation rates established by MCL 418.351; MSA 17.237(351) could be adjusted upwards by the cost- of-living adjustment provision in MCL 418.355; MSA 17.237(355) Jolliff, supra, 4. The order in the instant case awarding plaintiff $79 per week was not appealed by defendants.
On December 20, 1981, the Supreme Court overruled Jolliff in Gusler v Fairview Tubular Products, 412 Mich 270; 315 NW2d 388 (1981), reh gtd 414 Mich 1102 (1982), app dis 414 Mich 1102 (1983). In Gusler, the Court held that the Legislature, in enacting §§351 and 355, did not intend the minimum rates to be adjusted. Gusler, supra, 285-298. On the basis of the decision in Gusler, defendant’s insurer in the instant case, Allstate Insurance Company, reduced the rate it was paying plaintiff from $79 per week to $66.67 per week.
Claiming that defendants improperly reduced her weekly rate, plaintiff requested a Rule v hearing. Plaintiff argued that res judicata applied to the July 19, 1978, order of the referee awarding her $79 per week, so that the amount could not be reduced to $66.67 per week, At the hearing, the referee denied relief, finding that defendants’ action was proper under Gusler. On June 8, 1983, plaintiff filed an application for review with the Workers’ Compensation Appeal Board. On May 14, 1985, the wcab reversed, relying on Riley v Northland Geriatric Center, 140 Mich App 72; 362 NW2d 894 (1985). In Riley, this Court held that Gusler was not binding precedent since the Gusler plaintiff had requested rehearing before the Supreme Court and, before rehearing was held, the parties had dismissed the appeal pursuant to stipulation. Riley, supra, 77.
Defendants filed an application for leave to appeal to this Court, which was denied on August 5, 1985. Defendants thereupon filed an application for leave to appeal to the Michigan Supreme Court. On March 24, 1986, the Supreme Court ordered that the application be held in abeyance pending its decision in Riley, which had been appealed. On August 7, 1986, the Supreme Court issued its decision in Riley, reversing our Riley decision and holding that Gusler was binding precedent when it was decided on December 30, 1981. Riley v Northland Geriatric Center, 425 Mich 668; 391 NW2d 331 (1986). The Supreme Court thereupon remanded the instant case to us for consideration of plaintiffs res judicata issue and the issue of the retroactivity of Gusler.
On appeal, plaintiff claims that res judicata applies to the July 19, 1978, order awarding plaintiff $79 per week and that, therefore, notwithstanding Gusler and despite the fact that the bureau was without authority to award that amount, she should continue to receive $79 per week. We do not agree. In Gusler, the Supreme Court specifically set forth the retroactivity of that decision:
In the interest of fairness we do not believe our holding should affect any disability compensation payments already made. Consequently, no recipient will be obligated to repay sums already received by reason of the erroneous computation formula we have nullified today. However, any benefits due and not yet paid or to be awarded after the date of this opinion shall be in accord with this ruling. [Gusler, supra, 298.]
This statement makes it clear that payments not yet due were to be reduced to the statutory minimum.
In Riley, supra, the plaintiff sustained a back injury at work, and the hearing referee awarded her $119 per week, adjusted in accordance with Jolliff. No appeal was taken. However, after Gus-ler was decided, the plaintiff’s employer filed a petition for a determination of whether it could reduce the plaintiff’s benefits. The hearing referee directed reduction of benefits, but the wcab reversed, holding that res judicata barred a reduction. This Court affirmed, holding that Gusler was not binding authority since leave to appeal had been granted but the parties had dismissed the appeal. Riley v Northland Geriatric Center, 140 Mich App 72, 77; 362 NW2d 894 (1985). The Supreme Court reversed, holding that Gusler was binding authority when it was decided on December 30, 1981. Riley v Northland Geriatric Center, 425 Mich 668; 391 NW2d 331 (1986). However, the Court did not address the plaintiff’s res judicata argument and the issue of the retroactivity of Gusler, choosing instead to remand the case to us for a determination of the issues. Justice Levin, however, would have addressed the retroactivity and res judicata issues. We agree with Justice Levin’s statements:
I would also decide the retroactivity and res judicata issues. Again, the questions have been fully briefed in this Court by both sides of the controversy.
A
In Gusler, p 298, the majority opinion concluded with the following statement:
"In the interest of fairness we do not believe our holding should affect any disability compensation payments already made. Consequently, no recipient will be obligated to repay sums already re ceived by reason of the erroneous computation formula we have nullified today. However, any benefits due and not yet paid or to be awarded after the date of this opinion shall be in accord with this ruling.”
The majority thus indicated that Gusler would apply to cases decided before December 30, 1981, as to payments made after that date. Although the majority opinion did not go into an extended retro-activity/res judicata analysis, that is what the opinion stated.
The question of retroactivity is, as set forth in Gusler, ultimately one of fairness. There is nothing unfair in applying the rule stated in Gusler, which appears to have been reaffirmed today on varying analyses, from and after the date of the announcement of the opinions of the justices in Gusler.
The statement in the foregoing concluding paragraph of the majority opinion in Gusler was surely adequate notice to the workers’ compensation department, the wcab, bench and bar, that Jolliff should no longer be followed. The "interest of fairness” adverted to in Gusler, that prompted this Court to state that Gusler should not "affect any disability compensation payments already made,” does not require that the effect of Gusler be deferred until this Court has reaffirmed Gusler. It would not be "unfair” to hold in the instant case that, as declared in Gusler, "any benefits due and not yet paid or to be awarded after the date of [the Gusler opinion] shall be in accord with th[e] ruling” stated in Gusler that the minimum rates are not subject to adjustment.
To defer the effectiveness of the overruling of Jolliff beyond the filing on December 30, 1981, of the Gusler opinions would be unfair to employers and their insurers who have been required to pay out large sums because of an incorrect construction of § 355.
B
There is no constitutional impediment to changing, upwards or downwards, workers’ compensa tion benefits after an adjudication awarding such benefits. See Franks v White Pine Copper, 422 Mich 636, 653-654; 375 NW2d 715 (1985), where this Court said that "[workers’ compensation benefits are social-welfare income-maintenance benefits,” and that "[i]n providing for such benefits, the Legislature did not covenant not to amend the legislation,” and that an award of such benefits is not insulated "from substantive change by subsequent legislation.”
A workers’ compensation award differs from a lump sum tort judgment in that it operates prospectively and is subject to change in response to subsequent events. Just as a change in legislation may result in an upward or downward adjustment in the amount of benefits, so too a change in a rule of law announced by judicial decision may effect a change in the amount of the benefits payable.
The doctrine of res judicata does not preclude giving effect to such a change in law. In Socialist Workers Party v Secretary of State, 412 Mich 571, 584; 317 NW2d 1 (1982), this Court adopted the view expressed in the Restatement of Judgments that although an issue has been actually litigated and determined by a valid and final judgment, relitigation of the issue between the parties is not precluded where the issue is one of law and "[a] new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws.” Restatement Judgments, 2d, § 28.
Were this Court to give preclusive effect to a prior adjudication that was based on Jolliff as to payments of workers’ compensation benefits after Gusler it would perpetuate, in the name of a judicial doctrine, a judicial error in construing a statute that thwarts legislative intent. The policies that explain the judicial doctrine of res judicata do not require the continued imposition on employers and their insurers of payments contrary to the intendment of the statute. [Riley, supra, 687-690. Footnote omitted.]
Plaintiff cites two cases which seem to support her contention that res judicata applies. In Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975), the Court held that res judicata barred the plaintiff from receiving additional benefits twenty years after this Court denied her first application for such additional benefits, even though a subsequent decision had made such additional benefits now available. Hlady, supra, 374-380. In Selk v Detroit Plastic Products, 120 Mich App 135; 328 NW2d 15 (1982), aff'd 419 Mich 1 (1984), this Court, relying on Hlady, held that where the plaintiff was found to be totally and permanently disabled due to incurable insanity, the defendant could not later relitigate the issue of the plaintiff’s insanity even though, in the meantime, the Michigan Supreme Court overruled the existing insanity standard in favor of a more restrictive standard. Selk, supra, 151-152. We feel that the considerations militating for the application of res judicata in the Hlady and Selk situations are not present in the instant situation. The intervening change in the law in the instant case did not involve plaintiff’s condition or the standards under which plaintiff’s condition is to be tested, but involves the rate of pay awarded to a claimant. In Gusler, the Supreme Court decided that the director of the Bureau of Workers’ Disability Compensation did not have authority to adjust the minimum rates pursuant to § 355. In a sense, the official’s actions were void. Thus, any payments made in excess of the statutory minimum were also void. The Supreme Court realized that it would be inequitable to order that claimants return money already received. However, the same unfairness does not exist with respect to money not yet paid. To use the doctrine of res judicata to override the Legislature’s intention that minimum compensation rates not be adjusted would be unfair to employers and their insurers.
We realize that our decision is in conflict with this Court’s decision in Riley v Northland Geriatric Center (On Remand), 160 Mich App 507; 408 NW2d 489 (1987). However, we respectfully disagree with Riley (On Remand). Thus, we hold that Gusler applies to all workers’ compensation payments made after December 30, 1981, and that the doctrine of res judicata does not preclude the reduction of payments made to plaintiff in the instant case after that date.
The decision of the wcab is reversed.
Section 351(1), as applicable at the time of plaintiffs injury, provided:
(1) While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation of ¾ of his average weekly wages, but not more than $64.00, if such injured employee has no dependents; $69.00 if 1 dependent; $75.00 if 2 dependents; $81.00 if 3 dependents; $87.00 if 4 dependents; and $93.00 if 5 or more dependents; except as provided in section 355. Compensation shall be paid for the duration of the disability. Weekly payments shall not be less than $27.00 if there are no dependents; $30.00 if 1 dependent; $33.00 if 2 dependents; $36.00 if 3 dependents; $39.00 if 4 dependents; and $42.00 if 5 or more dependents; except as provided in section 355. Compensation shall be paid for the duration of the disability. The conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury and thereafter the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time. [Emphasis added.]
At the time of plaintiffs injury, § 355 provided:
(1) The maximum weekly rate in each dependency classification in this act shall be adjusted once each year in accordance with the increase or decrease in the average weekly wage in covered employment, a® determined by the employment security commission. The average weekly wage in covered employment determined by the employment security commission for the year ending June 30, 1967, shall be the base on which such adjustments are made,
(2) A second adjustment, if any, shall be made on January 1, 1970 and shall reflect the change, if any, between the average weekly wage for June 30, 1969 and the average weekly wage for June 30, 1968 and the adjustment shall be made in like manner on each January 1 thereafter, utilizing the average weekly wage for the preceding June 30,
(3) Adjustment fgr the statutory maximum rate shall be made only if there has been an increase or decrease in the average weekly wage of at least $1.50 during the preceding year, applied to the June 30, 1967, base and the director shall announce the adjustment each December 1, to become effective the following January 1. If in any year the change is less than $1.50, the director shall announce no change for the following year but the amount of change in such year shall be carried forward and added to or subtracted from subsequent annual determinations until the total change shall be at least $1.50, in which year an adjustment shall be made. There shall be an adjustment made of $1.00 in the maximum rates for each $1.50 increase or decrease in the average weekly wage, The maximum weekly rate as so determined for the year in which the date of injury occurred shall remain fixed, without further change as to the personal injury occurring within such year.
Plaintiff was found to have an average weekly wage of $100 and three dependents. Thus, without the adjustments, plaintiff would have been entitled to only $66.67 per week, according to § 351,
A Rule v hearing is a hearing which is called to determine whether the Workers’ Disability Compensation Act is being followed. 1979 AC, R 408.35 states in pertinent part:
Rule 5. (1) If the director believes that there has not been compliance with the workers’ disability compensation act, he may on his own motion give notice to the parties and schedule a hearing for the purpose of determining such compliance. The notice shall contain a statement of the matter to be considered. | [
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Gribbs, J.
On July 24, 1985, plaintiff had several fingers amputated while operating a press during his employment with defendant AVR Manufacturing Corporation. Plaintiff filed the statutory injury report with the Bureau of Workers’ Disability Compensation. While plaintiff initially received several weeks worth of compensation benefits, they were stopped after plaintiff was informed that defendant AVR was not insured for workers’ compensation as of the date of the injury. In fact, defendant AVR’s workers’ compensation coverage had been terminated on July 13, 1985, for nonpayment of premiums.
On September 13, 1985, plaintiff filed suit in the Wayne Circuit Court against defendant AVR, among others, seeking damages for his injuries. Defendant AVR brought a motion for summary disposition, which the trial court granted on April 2, 1986, finding plaintiff had no cause of action under MCL 418.641(2); MSA 17.237(641X2), as amended by 1985 PA 103, effective July 30, 1985, on the basis that the amended language permitting such an action could not be applied retroactively. Plaintiff appeals from this order. We reverse.
Every employer subject to the Workers’ Disability Compensation Act is liable for compensation awarded to its injured employees. The recovery of benefits under the act is the employee’s exclusive remedy against the employer. MCL 417.131; MSA 17.237(131). MCL 418.611; MSA 17.237(611) mandates that each employer subject to the act shall secure the payment of compensation by one of three prescribed methods. The three methods are: (1) becoming an authorized self-insurer; (2) insuring with an authorized insurer; or (3) insuring with the accident fund. Employers who do not comply with § 611 are not allowed any exemption otherwise allowed by statute upon the enforcement of an award of compensation, and the officers and directors of corporate employers are held liable for that part of the compensation award unsatisfied after execution against the corporation. MCL 417.647; MSA 17.237(647).
The amended statute implicated in this case, MCL 418.641(2); MSA 17.237(641)(2), reads:
The employee of an employer who violates the provisions of section 171 or 611 shall be entitled to recover damages from the employer in a civil action because of an injury that arose out of and in the course of employment notwithstanding the provisions of section 131.
Thus, if an employer does not secure payment of compensation, it can be held liable in tort. The language of § 641 prior to its 1985 amendment provided solely that the state could bring a civil action for noncompliance and collect up to $100 per day for each day of noncompliance. 1985 PA 103 also changed the fine amount to $1,000 a day.
As noted, § 641(2) was made effective on July 30, 1985, six days after plaintiff’s injury. Plaintiff argues that the amendment is remedial in nature and that it does not destroy any vested rights and that, therefore, retroactive application of the amendatory language should be allowed. Defendant AVR counters that there is no indication of a legislative intent to apply the amendment retroactively, that the amendment creates a new cause of action for certain employees which impairs vested rights under existing law, and that the amended provision imposes a penalty on employers who do not obtain insurance.
Our analysis begins with the general rule that a statute is presumed to operate prospectively unless the contrary intent is expressly or impliedly manifested by the Legislature. Selk v Detroit Plastics Products, 419 Mich 1, 9; 345 NW2d 184 (1984); Allstate Ins Co v Faulhaber, 157 Mich App 164, 166; 403 NW2d 527 (1987). However, if the statutory amendment can be classified as remedial or procedural in nature, an exception to the general rule is recognized. Franks v White Pine Copper Division, 422 Mich 636, 672; 375 NW2d 715 (1985); Selk, supra, p 10; Faulhaber, supra, p 166. Where a statute operates in furtherance of a remedy already existing, it is held to operate retroactively if it does not create new rights nor destroy existing rights, unless a contrary legislative intent is manifested. Selk, supra, p 10, Faulhaber, supra, p 167. Further, those statutes which imply an intention to reform or extend existing rights are generally viewed as remedial. Faulhaber, supra, p 167; Spencer v Clark Twp, 142 Mich App 63, 68; 368 NW2d 897 (1985).
Additionally, we recognize that the Workers’ Disability Compensation Act itself is remedial in nature and should be liberally construed in a humanitarian manner in favor of the injured employee. Wells v Firestone Tire & Rubber Co, 421 Mich 641, 651; 364 NW2d 670 (1984); Hartsell v Richmond Lumber Co, 154 Mich App 523, 534; 398 NW2d 456 (1986). Therefore, after applying the above principles, we conclude that the amendment to § 641 is remedial in nature and consequently should be applied retroactively.
Prior to the amendment, an employer who failed to secure payment of compensation as required by §611 was subject to significant fines during the period of its noncompliance. While 1985 PA 103 did not change the basis for this penalty, the fine was increased considerably. However, we note that the party with the most to lose from the failure of an employer to secure payment of compensation, and therefore the party with the greatest incentive to see that an employer procures and maintains insurance, i.e., the injured employee, had no means through § 641 by which to pressure employers to comply with the mandate of § 611 that they secure payment of compensation. This remedy was left to the state’s sometimes haphazard enforcement. Thus, the amendment to § 641 operated in furtherance of a remedy already existing—encouraging compliance by employers with § 611. The amendment acted as a reform by giving more teeth to § 641.
We also note that employers and the officers and directors of corporate employers, to the extent the employer is unable to pay, remain liable to injured employees for the payment of compensation when the employer has not complied with the provisions of § 611. Thus, prior to the amendment, an employer who did not secure payment of compensa tion faced considerable financial exposure by way of fines and continued liability for compensation. This further supports our belief that retroactive application of the amendment to § 641 will not destroy existing rights of defendant, since prior to the amendment it would have been liable for the injuries to its employee absent any insurance.
Defendant argues policy considerations dictate prospective application of § 641(2). Defendant takes the position that the exclusive remedy provision of the act is the "quo” received by the employer, surrendered by the employee in exchange for the "quid,” absolute liability regardless of fault. See Downie v Kent Products, Inc, 420 Mich 197, 214-215; 362 NW2d 605 (1984), reh den 421 Mich 1202 (1985). We find defendant’s claim of reliance on the quid pro quo of the act specious in light of defendant’s failure to comply with the mandatory provisions of § 611. Defendant seeks the protection of the act when it suits its purpose without meeting its requirements. We cannot attribute an intention on the part of the Legislature to reward those in defendant’s position.
We believe that the amendment was enacted to correct a legislative oversight as a means of enhancing the already existing remedies against an employer who does not comply with § 611. We find our interpretation consistent with the purpose of the Workers’ Disability Compensation Act that it be construed in a liberal and humanitarian manner in favor of the injured employee. Accordingly, we hold that MCL 418.641(2); MSA 17.237(641X2) is to be applied retroactively.
The judgment of the trial court is reversed and the case remanded for reinstatement of plaintiffs action against defendant.
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Cooley, C. J.
This is an action on the case to recover damages for alleged seduction. The plaintiff had been living in the family of the defendant as his adopted daughter from 1872 to 1881, being when she went there twelve years of age. She claims to have been seduced by him in the summer of 1875. She submitted to him, according to her testimony, unwillingly, and under the influence of the control which he had obtained over her by means of the adopted relation. A child was born to her in July, 1881, which she says was the fruit of their intercourse. This suit was begun October 31, 1881. The defendant denies that sexual intercourse ever took place between him and the plaintiff. The case has twice before been in this Court. See 47 Mich. 427: 49 Mich. 540. On the trial on the merits, after the preliminary questions had been determined in this Court, the plaintiff recovered judgment for $4000 damages.
Before the plaintiff had given evidence of the seduction she was permitted to prove acts of improper familiarity on the part of the defendant occurring in 1878. This was objected to as being premature in that stage of the trial, and also as having no tendency to prove a previous seduction. So far as the question related to the order of proof, we think it was addressed to the discretion of the trial judge. The other branch of the objection was untenable also. It is no doubt true, as has been urged, that such acts tend rather to lend probability to the charge of subsequent intercourse than to prove a previous seduction; yet, as in this case the illicit intercourse is alleged to have been kept up for some time after 1878, and it was a part of the plaintiff’s case that she was begotten with child by the defendant in 1880, the acts of familiarity which were testified to in 1878 were not without importance. They tended to show an existing condition of things such as the plaintiff had set up, and rendered more probable the story of continuous intercourse, to which she afterwards testified.
It was urged by the defendant that on the evidence of the. plaintiff the action could not be maintained, because as she claimed, the intercourse was accomplished by force, and was therefore not seduction, but rape. But the plaintiff’s evidence did not make out a rape: it made out only that her will was overcome by the defendant’s superior will, which had controlling influence because of the parental relation which he had assumed towards her. If the case were in fact one of rape, there would be very good authority for holding that the action might be sustained notwithstanding the fact that the intercourse was accomplished by force. Kennedy v. Shea 110 Mass. 147: s. c. 14 Am. Rep. 584; Damon v. Moore 5 Lans. 454; Lavery v Crooke 52 Wis. 612: s. c. 38 Am. Rep. 768. It was also urged that suspicion was cast upon the story of the plaintiff by the fact that she did not make immediate • complaint when the wrong was first committed; and instructions to the jury were requested to that 'effect. We think there was no error in refusing them. Counsel was at liberty to comment upon the fact if he deemed it advisable to do so, and perhaps the judge also; but the judge could not lay down any rule of law in respect to.it which would benefit the defense. Obviously, as respects immediate complaint, rape and seduction present very different considerations. When the truth of a charge is being investigated, in the light of the conduct of parties concerned, we are to consider what the behavior would naturally have been had the charge been true; and while all would probably agree that a virtuous woman who had been ravished would be likely to make immediate outcry, or disclosure, very different conduct would be looked for in case of seduction. The woman seduced is more likely to reveal her shame only when concealment is no longer possible, especially where the seducer holds towards her some family relation.
One of the assignments of error concerns the evidence given by the plaintiff, that at one time, not very distinctly specified, but which would seem to have been in the winter before the birth of the child, the defendant informed her that he had concealed four hundred dollars in a specified' place, which she was to have in case he should die before her, and in that event he desired her to take it, but to let no one know about it. It does not appear from the evidence that this conditional gift was the result of any previous understanding or promise, or that it had any connection whatever with the previous or continuing sexual intercourse, Neither was it shown that the defendant then knew the plaintiff was in the family way. If we believe the plaintiff’s charge, we should naturally attribute such a gift by the defendant to a desire to make some compensation for the wrong doue. If we believe the defendant truthful, the conditional donation may, on the other hand, be referred to very proper sentiments. The plaintiff had, at that time, been for eight years a member of defendant’s family, occupying the place of a child, though not formally adopted. If she survived him the law made no provision for her as a child, and this small gift he might very well make, and probably ought to make, if their relations had been perfectly innocent. The secrecy in the case might seem to require explanation; hut there might be very good reasons for making such a gift in such auway that it could not become the subject of possible family contention after his death. The act of making it was therefore apparently as consistent with good motives and honorable conduct as with a consciousness of crime; and it naturally indicated crime only to a mind already convinced. Conduct from which such opposite deductions are not only admissible, but would be natural, according to the prepossessions we may have respecting the person, ought not to be proved. The very reception of the evidence as tending to prove guilt easts a suspicion upon the act sworn to which it cannot be seen even probably to deserve; and it may, consequently, work great injustice. The exception is well taken.
When the plaintiff was giving evidence on her own behalf she was asked what the defendant had told her respecting his pecuniary circumstances. Objection was made to the question, but she was allowed to answer, and she stated that he had told her he was worth twenty thousand dollars. The avowed purpose of giving this evidence was to swell the damages. In the instructions to the jury the trial judge did not pointedly call their attention to it, but he instructed them that, in awarding damages for the shame and ignominy which the plaintiff has suffered by reason of the wrongful act of the defendant, they might award to the plaintiff such sum as their fair and deliberate judgment and discretion should dictate, having regard to all the circumstances of the case — the seduction, and relation of -the parties before and at the time of'the alleged wrong to the plaintiff. The jury must, therefore, have understood they were at liberty to give damages with some regard to the amount of the defendant’s pecuniary means.
If'this were an action for breach of promise of marriage the wealth of the defendant would have been a fair subject of inquiry; but this is for the obvious reason that the plaintiff’s loss in such a ease has direct relation t'o the means of the man she was to many. Miller v. Rosier 31 Mich. 475; Bennett v. Beam 42 Mich. 346: s. c. 36 Am. Rep. 442; Kelley v. Riley 106 Mass. 339: s. c. 8 Am. Rep. 336; Kniffin v. McConnell 30 N. Y. 285. In several cases it has been held that similar evidence is admissible in actions brought for malicious injuries to plaintiff’s reputation. Karney v. Paisley 13 Iowa 89; Hayner v. Cowden 27 Ohio St. 292: s. c. 22 Am. Rep. 303; Humphries v. Parker 52 Me. 502; Bennett v. Hyde 6 Conn. 24, somewhat qualified in Case v. Marks 20 Conn. 248; Hosley v. Brooks 20 Ill. 115. In Holmes v. Holmes 64 Ill. 294, it appears to have been received by the court with some degree of dissatisfaction, and in Alabama it is rejected. Donnell v. Jones 13 Ala. 490; Seay v. Greenwood 21 Ala. 494; Ware v. Cartledge 24 Ala. 622. In this State the admission of such evidence has been held not error, where the judge carefully cautioned the jury against giving it any consideration except as bearing upon the injury likely to flow from slanders by a man of the defendant’s standing. Brown v. Barnes 39 Mich. 211: s. c. 33 Am. Rep. 375. Like evidence has been held proper in some cases of criminal conversation. Yundt v. Hartrunft 41 Ill. 9; Rea v. Tucker 51 Ill. 110; Peters v. Lake 66 Ill. 236 : s. c. 16 Am. Rep. 593; contra, James v. Biddington 6 Car. & P. 589. Some courts hold this evidence admissible in all cases of tort which are accompanied by such circumstances of aggravation as are proper to be considered in measuring the plaintiffs damages; and it has been received in cases of trespass to the person, and even of trespass to property. Birchard v. Booth 4 Wis. 67; McNamara v. King 7 Ill. 432; Smith v. Wunderlich 70 Ill. 426; Bell v. Morrison 27 Miss. 68; Rowe v. Moses 9 Rich. 423; M’Connell v. Hampton 12 Johns. 234. Its reception is generally put upon the express ground that one purpose of the suit in such cases is to punish the defendant; and that such damages as might be severe punishment to a poor man would be no punishment at all to a man of great wealth. In actions for seduction the plaintiff has sometimes been allowed to give evidence of the defendant’s pecuniary circumstances. Grable v. Margrave 4 Ill. 372: s. c. 38 Am. Dec. 88; White v. Murtland 71 Ill. 250 : s. c. 22 Am. Rep. 100; Applegate v. Ruble 2 A. K. Marsh. 128; McAulay v. Birkhead 13 Ired. 28; Clem v. Holmes 33 Grat. 722: s. c. 36 Am. Rep. 793; Lavery v. Crooke 52 Wis. 612: s. c 38 Am. Rep. 768. Butin England it is held that the pecuniary circumstances of defendant are not to be proved in suits for seduction; Hodsoll v. Taylor L. R. 9 Q. B. 79; and Blackburn J., explains Andrews v. Askey 8 C. & P. 7, which has been supposed to lay down a different rule, and shows that the judge in that case pointedly omitted to include the defendant’s means as an element of damages. In Iowa such evidence has been excluded in actions for assault and battery, Hunt v. Chicago &c. R. R. Co. 26 Iowa 364; Guengerech v. Smith 34 Iowa 348; and also in suits for seduction. West v. Druff 55 Iowa 335. In Dain v. Wycoff 7 N. Y. 191, 193, Gardiner J., in an action for seduction, condemns such evidence in very pointed language. The suit in that case was brought by the master, nominally for loss of service, as was formerly the case here. “ The elementary writers,” he says, “ concur in saying that damages beyond the mere loss of service may be given for the dishonor of the plaintiff and his family and for injured feelings. But those damages are notwithstanding intended as a compensation for an actual though indefinite injury to which the plaintiff has a right, whatever may be the circumstances of the defendant, and upon principle to nothing more. _ If the defendant cannot show his poverty in mitigation of damages, there is no reason why the plaintiff should aggravate them by proof of his wealth.” And he adds with much good sense: “ There can be no reason why twelve men wholly irresponsible should be allowed to go beyond the issue between the parties litigating, and after indemnifying the plaintiff for the injury sustained by him proceed as conservators of the public morals to punish the defendant in a private action for an offense against society.”
In Illinois it has been held in one case that the poverty of the plaintiff, as well as the wealth of the'defendant, may be an element in aggravation of damages in cases of malicious torts. McNamara v. King 7 Ill. 432. But there could be no general rule to that effect. See Chicago v. O'Brennan 65 Ill. 164. It has been decided in that state that evidence of the pecuniary circumstances of one of two joint defendants must be rejected, because its tendency, if received, would be to increase the damages as against the defendant, whose means were less, and so to work injustice. Toledo &c. R. R. Co. v. Smith 57 Ill. 517. This difficulty in the application of the rule ought to give very satisfactory evidence of its unsoundness; for the rule, if founded in justice and reason, ought to be, and would be, as applicable in one case as another. The plaintiff’s injury is no greater and no less be cause two persons united in committing it, and the measure of his redress ought not to depend on a circumstance unimportant to the injury. When it is made to do so it is because the court, while nominally proceeding to give compensation, is really losing sight of compensation in the endeavor to measure the desert of punishment. It is not redressing the plaintiff’s injury, but it is punishing the defendant’s misconduct, and it is doing this with the aid of a jury who in respect to it are held under none of the restraints which govern judicial action when punishment is the avowed object of the proceeding. The anomaly, that a jury may have liberty to punish at discretion for a tort, when, if the act were a crime, the penalty would be carefully limited by law, and that they may award the penalty they agree upon to a private suitor to swell his actual damages, has never received much countenance in this State. Compensation for the wrong done has always been held to be the object to be attained ; and while all circumstances of aggravation have been received in evidence, the reception has been for the very sufficient reason.that the injury to the plaintiff was the greater in consequence thereof, and that his compensation ought to be in proportion. The increased damages are sometimes spoken of as exemplary, as in a sense they are ; but in a less misleading and more accurate sense they are compensatory. Allison v. Chandler 11 Mich. 542; Detroit Post Co. v. McArthur 16 Mich. 447; Welch v. Ware 32 Mich. 77; Elliott v. Van Buren 33 Mich. 56: s. c. 20 Am. Rep. 668; Livingston v. Burroughs 33 Mich. 511; Friend v. Dunks 37 Mich. 25; Bennett v. Beam 42 Mich. 346: s. c. 36 Am. Rep. 442.
In this case, the plaintiff, if she establishes her case, should recover such damages as will fairly compensate her for the wrong she has suffered. But we do not see how the wealth of the defendant can add either to the shame and mortification she must suffer, or to the injurious consequences in after life. If wealth could be inquired into at all, the inquiry could not well go beyond general reputation; for a knowledge of actual wealth involves an inquiry into details, which in such a suit would render necessary a collateral investiga t-ion more troublesome, in many cases, than the principal issue. But proof of one’s wealth by general reputation would be only a part of the showing of his standing in the community; and the plaintiff in this ease had the full benefit of this showing without objection. She proved that the defendant was a considerable farmer when he invited her to his house, and continued to be such a farmer until after the wrong was made public, and his importance in the community was apparent. To follow this showing with evidence that he admitted his property to amount to a certain sum was to suggest to the jury the idea of a division of this property between the defendant and the woman who claimed to have been injured by him. This is not a very safe idea to suggest to a tribunal- supposed to act with discretionary authority and whose feelings may be excited by a pathetic story, under the influence of which they act immediately. The evidence ought not to have been received.
The defendant offered to show that his general reputation for chastity and purity of life had always been good, but the court excluded the evidence. This is complained of; but no authority in support of its reception is cited. This absence of authority furnishes a very strong, if not conclusive, argnr ment against the "evidence. Good reputation is a very obvious defense in such a case, if it is admissible, and the failure to resort to it hitherto must be referred to a general understanding that the courts were not at liberty to receive it. In criminal cases the defendant may prove good reputation for what it is worth; but the weight of it in his favor would be much more conclusive in some cases than in others. In cases of alleged seduction it would be likely to have less importance than in cases involving accusations of wrongs by violence; for a woman would naturally be more on her guard in the case of a notorious character than when the man was one in whom the community confided. Indeed, seduction is often the result of an intimacy originating in mutual respect, and which has become dangerous before the parties are fairly aware of it, and while reputation on both sides is unblem islied. We think that in this regard the court committed no error.
Some further questions of evidence which are not likely to arise in the same way again are passed by without. notice. "Various instructions upon the evidence were asked of the trial judge which concerned the weight and credibility of the proofs merely, and which he was at liberty to deal with as he saw fit. Too much is frequently asked of the trial judge in the line of instructions when no question of law is involved, and we are not inclined to favor the jiractice.
The only remaining question is the one made under the statute of limitations. The suit was not begun - until more than six years had elapsed from the time of the alleged seduction. The suit, under the statute, might have been brought by some relative for the plaintiff; How. Stat. § TTT9 ; but if it had been it would have been barred. But the person whose family relation to the plaintiff was such as naturally to indicate him as the one to bring suit for such an injury on the plaintiff’s behalf, was the defendant himself, and gross injustice might result from any rule of law which should make his own inability or unwillingness to take the steps •called for by the relation operate to extinguish a right of -action for his own misconduct. We have decided that in these cases the woman may sue in her own name; Watson ■v. Watson 49 Mich. 540; and when she is an infant at the time of the seduction, and nobody acts for her during her minority, there is the same equity in this case as in any other, that she be allowed a reasonable time after coming of age to decide upon seeking redress. The statute, How. Stat. § 8713, allows six years for the purpose, and the action was therefore not barred.
For the errors which have been pointed out there must be a new trial.
Campbell and Sherwood, JJ. concurred. Mr. Justice Champlin did not sit. | [
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Cooley, C. J.
This action is brought upon a bond in the penal sum of seven thousand six hundred dollars, dated July 10, 1882, the conditionuf which was as follows:
“ Whereas, judgment has been rendered in the Superior Court of Detroit, in favor of said Amable Souvais, against the said Alvah E. Leavitt, for three thousand seven hundred and sixty and 86-100 dollars, damages and costs, in which judgment and proceedings the said Alvah E. Leavitt complains that there is error, in substance, and to be relieved therefrom, hath obtained a writ of error to remove the same to the Supreme Court, to the end that the error made therein may be corrected :
Now, therefore, the condition of this obligation is such, that if said Alvah E. Leavitt shall prosecute his said writ of error to effect, and shall pay and satisfy such judgment as shall be rendered against him upon the said writ of error, in said Supreme Court, then this obligation to be void, otherwise to remain in full force and virtue.”
The declaration alleged the affirmance of the judgment in the Supreme Court. The defendants, who were Leavitt and his sureties in the bond, pleaded the general issue. Issue was joined June 30,1883.
The case was brought to trial December 28, 1883, before a jury. When the plaintiff put in the record evidence of his judgment, it was found that the journal of the Superior Court for the day on which judgment was rendered had never been signed by the judge, and that in the entry of the judgment by some blunder of the clerk the sum stated was a much smaller sum than the sum for which judgment had been directed. The judge, against the objection of defendants, signed the journal nunc pro tunc, and directed that the entry of judgment should be corrected.
When the plaintiff had rested his case the defendants offered in evidence an instrument purporting to be signed by the plaintiff, dated October 17, 1883, which recited said judgment, and acknowledged full payment and satisfaction thereof and of all costs in the Superior Court and the Supreme Court, in consideration of the sum of three thousand dollars, the receipt of which was acknowledged. Counsel for the plaintiff objected that the discharge, having been given since issue joined, was not admissible without being specially-pleaded, and the court sustained the objection.
Defendants then asked leave to plead the discharge puis darrein continuance. This was objected to on the part of the plaintiff, who claimed that the paper was obtained from him by fraud. The court declined to permit the plea to be filed, and the plaintiff took a verdict for the amount of the judgment and interest. The plaintiff then, admitting that he had received three thousand dollars from the defendants, entered a remittitur to that amount, with interest from the time he received it. Defendants bring error.
The right of the judge to order the errors in the records ■of his court to be corrected is undoubted. Nobody had been misled by them. The defendants knew that judgment had been ordered, and they took action which assumed that it was in due form of law. They also understood what the amount was, and recited it correctly in the bond they gave. It was a matter of course to correct the record under such ■circumstances. Emery v. Whitwell 6 Mich. 474.
Nor did the judge err in holding that the alleged discharge was not admissible under the issue. Buell v. Irwin 24 Mich. 145, 149; Jenney v. Potts 41 Mich. 52. The case of Kimball v. Wilson 3 N. H. 96, which is cited for the defendants, was a case in which the discharge was obtained before plea,- and therefore has no application to this case. Haven v. Beidler Manuf. Co. 40 Mich. 286 was also different from this. The action was trover, and the plaintiff, to make out his case, found it necessary to put in proof a certain contract. The •defendant was then suffered to show that, by facts occurring after issue joined, this contract was discharged. The contraec was not counted upon; the suit was not upon it; it came into the ease as an item of evidence, and as the defendant could not know it would be offered, lie could not be required to interpose any special plea in respect to it.
Whether the judge should have permitted the plea puis darrein continuance to be filed is not so clear. Much may be and much has been, in this case, forcibly said for and against his action. But the question now is whether we can set aside his action, even though we should be of opinion that he ought to have ruled differently. It is admitted that as a general rule questions of pleading must be settled in the trial court, and litigation would be- interminable if it were otherwise. This is particularly true when the question is of the change of an issue already formed; for the parties are supposed to have made their preparations for trial with reference to the _ issue as formed, and may be put to cost, inconvenience and, perhaps, loss of rights, if the issue is changed. And only the court where the case is pending can inquire into all the facts and make provision for protecting all equities, if a change in the issue is allowed. And its action must not only appear to be wrong, but its discretionary power must have been abused before an appellate court can be justified in overruling it.
In this case the motion for leave to file a new plea was made under circumstances that were very unusual and peculiar. More than two months had elapsed since the necessity for the plea had arisen; the parties in the mean time had prepared for trial upon the issue as it stood, and had entered upon it, and the plaintiff had concluded his case before the motion was made. The facts which it was proposed to plead had all the while been known, and we are not apprised of any showing that the defendants had been laboring under any misapprehension as to the rule of evidence under the issue as it stood. It could not be assumed that the plaintiff had come prepared to meet an issue, which he was not notified would be made, and the filing of the plea would therefore most probably require a discharge of the jury and a postponement of the trial to a future term. All these facts made the question one that addressed itself peculiarly to the discretion of the trial judge; and we do not see how we could interfere to con trol that discretion without departing from well-settled and wholesome rules of jurisdiction.
As these are the only questions presented by the record which we deem it important to notice, the judgment will be affirmed.
The other Justices concurred. | [
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Cooley, J.
In this case the defendant had judgment on demurrer to the plaintiff’s declaration, and the plaintiff appeals.
The action is trespass' on the case, and the grievance complained of is that the defendant city, having by its charter full and complete authority to keep the public streets therein in repair, to remove nuisances therefrom, to regulate amusements therein,'and to prevent any unlawful, improper and dangerous use thereof, did, in the attempted exercise of its powers, at a meeting of its common council, held December 11, 1882,"designate and set aside Fountain street as one of a number of public streets and highways in said city in which the unlawful and dangerous sport and amusement of coasting and commonly called sliding down" hill, could be engaged in by all persons desiring to participate in the same; that on December 14, 1882, said street was covered with snow and ice, and a large number of' men and boys, in pursuance of the permission of the defendant so given, did assemble on said Fountain street, and did then and there engage and participate in the said sport or amusement, and did so obstruct the said street by means thereof as to hinder and prevent ordinary travel and passage over and upon. the same, and to cause a public nuisance; and a valuable horse of the plaintiff, which he was then driving with due care on said street, was run into by one of the vehicles then and there used in coasting, and called a bob, upon which were a number of men. and boys, and was seriously and permanently injured and disabled. The sole question in the case is whether the declaration sets forth any cause of action against the city for this injury.
The wrong attributed to the city is that, through its common council, it gave permission for the use of Fountain street for the amusement of coasting’. This permission was given in assumed exercise of the legislative power conferred upon the city to control the use of the streets, and the action raises the question whether a municipal corporation can be liable as for a tort, for injurious consequences resulting from an exercise of its legislative authority. Legislative power, whether held by the law-making authority of the State, or by municipal bodies, is in its nature governmental and discretionary, and it is conceded by counsel for the plaintiff that, as a general rule, a right of action as for a tort will not arise from any exercise of discretion in respect to it. This general rule has been several times acted upon, in this State: Gale v. Kalamazoo 23 Mich. 344: s. c. 9 Am. Rep. 80; Pontiac v. Carter 32 Mich. 164; Detroit v. Beckman 34 Mich. 125 : s. c. 22 Am. Rep. 507; Lansing v. Toolam, 37 Mich. 152; Toolan, v. Lansing 38 Mich. 315. It has also' been very generally applied elsewhere, under circumstances almost innumerable in variety, as the following cases, among many others, will show: Governor &c. v. Meredith 4 Term 796; Smith v. Washington 20 How. 135; Transportation Co. v. Chicago 99 U. S. 635; Wilson v. New York 1 Denio 595: s. c. 43 Am. Dec. 719; Mills v. Brooklyn 32 N. Y. 489; Masterton v. Mount Vernon 58 N. Y. 391; Smith v. Mayor &c. 66 N. Y. 295 : s. c. 23 Am. Rep. 53; Creal v. Keokuk 4 Greene (Iowa), 47; Kelley v. Milwaukee 18 Wis. 83; O'Connor v. Pittsburgh 18 Penn. St. 187; Fair v. Philadelphia 88 Penn. St. 309: s. c. 32 Am. Rep. 455; Vincennes v. Richards 23 Ind. 381; Roll v. Indianapolis 52 Ind. 547; Lee v. Minneapolis 22 Minn. 13; Alden v. Minneapolis 24 Minn. 254; Lynch v. Mayor &c. 76 N. Y. 60; Dorman v. Jacksonville 13 Fla. 538: s. c. 7 Am. Rep. 253; Simmons v. Camden 26 Ark. 276: s. c. 7 Am. Rep. 620; Fellowes v. New Haven 44 Conn. 240 : s. c. 26 Am. Rep. 447; Cheever v. Shedd 13 Blatchf. 258. Some of these were cases in which it seemed very plain that the local legislature had seriously misjudged the public interest in the action it had taken ; but the fact remained that the question of discretion had been submitted to its judgment, and not to that of any other tribunal; and when it had acted, the decision was of necessity final. Oases like Hoyt v. Hudson 27 Wis. 656; Carr v. Northern Liberties 35 Penn. St. 324; Lynch v. Mayor 76 N. Y. 60; Evansville v. Decker 84 Ind. 325; and Wakefield v. Newell 12 R. I. 75 : s. c. 34 Am. Rep. 598, in which, in consequence of the failure to provide sufficient sewerage for the streets, the adjoining proprietors were seriously damnified, illustrate the rule in a very clear and strong light, as do also some of the cases in which reasonable and prudent regulations for the public benefit and protection had been suspended temporarily, or in particular cases, to the detriment of individual citizens. Thus, a city was held not liable for licensing the construction of a wooden building within its fire limits, from the erection.of which, as the plaintiff averred, his own building took fire and was destroyed : Forsyth v. Atlanta 45 Ga. 152: s. c. 12 Am. Rep. 576; see Wheeler v. Cincinnati 19 Ohio St. 19: s. c. 2 Am. Rep. 368; or for suspending an ordinance forbidding cattle being at large in the streets, in consequence of which thé plaintiff was gored by a 'vicious ox : Rivers v. Augusta 65 Ga. 376: s. c. 38 Am. Rep. 787; or for suspending an ordi nance forbidding the use of fireworks within the city, the plaintiff’s house having been burned by the explosion of fireworks during the suspension : Hill v. Charlotte 72 N. C. 55 : s. c. 21 Am. Rep. 451; or for arranging for a parade of the fire department by stretching a rope across the street, with which the plaintiff came into collision: Simon v. Atlanta 67 Ga. 618: s. c. 44 Am. Rep. 739.
But, on the other hand, if the act which is done by a municipal corporation would be tortious if done by a natural person, the corporation is held liable for it to the same extent, and for the same reasons that the natural person would have been. The legal protections of property are the same against artificial persons as against others, and the state itself, or any one of its municipalities, has no more power to deprive the owner of his possessions than has the private citizen. It has therefore been held that though a city is not responsible because of any failure to provide proper sewerage, yet, if the effect of the construction of one of its public works shall be to collect water and cast it upon the land of an individual where it would not otherwise flow, the city is liable: Ashley v. Port Huron 35 Mich. 296: s. c. 24 Am. Rep. 552, and cases cited; Rhodes v. Cincinnati 10 Ohio 159; Turner v. Dartmouth 13 Allen 291; Wilson v. New Bedford 108 Mass. 261: s. c. 11 Am. Rep. 352; Byrnes v. Cohoes 67 N. Y. 204; Inman v. Tripp 11 R. I. 520: s. c. 23 Am. Rep. 520; Thurston v. St. Joseph 51 Mo. 510 : s. c. 11 Am. Rep. 463; Gillison v. Charleston 16 W. Va. 282: s. c. 37 Am. Rep. 763; Templin v. Iowa City 14 Iowa 59; Ellis v. Iowa City 29 Iowa 229; Ross v. Clinton 46 Iowa 606: s. c. 26 Am. Rep. 169; Van Pelt v. Davenport 42 Iowa 308 : s. c. 20 Am. Rep. 622; O'Brien v. St. Paul 25 Minn. 333: s. c. 33 Am. Rep. 470; Dixon v. Baker 65 Ill. 518: s. c. 16 Am. Rep. 591; Indianapolis v. Lawyer 38 Ind. 348; Indianapolis v. Tate 39 Ind. 282; Weis v. Madison 75 Ind. 241: s. c. 39 Am. Rep. 135. So, though a city is not liable for a consequent diminution of the value of adjacent property resulting from the grading of a street, Pontiac v. Carter 32 Mich. 164, yet if, in the grading, earth is thrown upon the lands of individuals, this is a trespass for which the city must respond : Hendershott v. Ottumwa 46 Iowa 658: s. c. 26 Am. Rep. 182. See Stack v. East St. Louis 85 Ill. 377: s. c. 28 Am. Rep. 619. And a city has no more right to obstruct a water-course to the prejudice of riparian proprietors than has any individual: Lawrence v. Fairhaven 5 Gray 110. In Iowa it has been held that if a city which, under its charter, has no power to grant permission for the use of a steam-motor on its streets, shall nevertheless assume to do so, and the motor is used, and a horse is frightened thereby, the city will be liable in damages. Stanley v. Davenport 54 Iowa 463: s. c. 37 Am. Rep. 216. And in Wisconsin it is held that any dangerous and illegal use of a city street under the license of its common council will be a nuisance for the consequences of which the city must respond. Little v. Madison 42 Wis. 643 : s. c. 24 Am. Rep. 435; and 49 Wis. 605. And it has been held by this Court that it was no defense to a suit against a village for a trespass committed by its marshal under the orders of the common council, that the council was acting under a claim of right upon a subject over which it had general jurisdiction under the village charter. Sheldon v. Kalamazoo 24 Mich. 383. The same doctrine is recognized in Buskirk v. Strickland 47 Mich. 389.
Counsel for the plaintiff contends'that these cases should rule the one at bar ; that the common council, by the permission it gave for the use of Fountain 'street for coasting, licensed a nuisance in a public highway, and that the city is responsible precisely,as it would be if the nuisance had been caused under its command and by its agents. Schultz v. Milwaukee 49 Wis. 254: s. c. 35 Am. Rep. 779, is supposed 'to support this view; as does also, very strongly, Mayor c&c. v. Marriott 9 Md. 160. If it were unquestionable that coasting upon a public highway was always a nuisance, there would be much plausibility in this contention, and perhaps it should be accepted as sound. But in Hutchinson v. Concord 41 Vt. 271, and again in Faulkner v. Aurora 85 Ind. 130: s. c. 44 Am. Rep. 1, it was taken for granted that coasting upon a public way, when not expressly prohibited by law, might be entirely innocent; and we do not see how the contrary could well be held. It has been decided in several cases that a municipal corporation, charged by statute with the duty of keeping the public ways in repair, cannot be held chargeable with the consequences of coasting upon its roads, on the ground of this use of them constituting a defect. Shepherd v. Chelsea 4 Allen 113 ; Pierce v. New Bedford 129 Mass. 534: s. c. 37 Am. Rep. 387; Hutchinson v. Concord 41 Vt. 271; Faulkner v. Aurora 85 Ind. 130: s. c. 44 Am. Rep. 1; Ray v. Manchester 46 N. H. 59. These cases are not questioned or criticised by counsel for the plaintiff. But coasting does not necessarily interfere with the customary use of the street, and might be indulged in with no serious inconvenience to any one, not only in many ¡Haces in the country towns, but even within the limits of incorporated cities and villages. "We are accustomed to make our public ways four rods in width, but it is not expected that the whole four rods will be occupied for travel, and it is possible to máke use of parts of the public highways, without encroaching at all upon the portions kept in repair and used for passage. It is also true, throughout the interior and western states, if not in those bordering on the Atlantic, that in laying out towns streets are dedicated to the public which there may for many years be no occasion to improve for travel, and they become for some time mere open spaces for the sports and recreations of those who may see fit to make use of them. It could not be seriously contended that for the municipal authorities to permit coasting upon such a street would be to license a public nuisance. On the contrary, as the sport itself is healthful and exhilarating, it seems eminently proper, if the street is not put to other public use, that this diversion be allowed, if not expressly sanctioned. The sport itself is not entirely foreign to the purposes for which public ways are established; for the use of these ways for pleasure riding is perfectly legitimate, and coasting is only pleasure riding in a series of short trips repeated over the same road, not differing essentially from the riding in sleighs of which so much is seen on some of the streets of northern cities, when suitable weather and proper condition of roads invite to this en joyment.
If coasting upon a public highway is not necessarily a nuisance, it would seem plain that the public authorities having the care and superintendence of highways, and whose duty it is to prevent nuisances or to abate them, must have some discretion to determine when and where the sport should be allowed in the public roads, and when and where forbidden. The common council of a city has frequent occasion to exercise a like authority; the streets must of necessity be used, even in the most compactly built parts of a city- — -perhaps most often there — for many purposes besides travel and business traffic, and it has never been supposed that licensing such use would render the city liable on any common-law principle. In some cases there may be a statutory liability; but it is not claimed that there is any statute in this State which will render the .city liable for the action of its legislature in licensing the use of a street for coasting, or that this plaintiff has any remedy unless it is given by the common law. The case presented then, would seem to be this: The common council, having full control of the streets, has licensed the use of a particular street in a particular way differing from the ordinary use. In doing so it must be supposed to have determined that the irse in that way will not interrupt or interfere with such customary use of it for passage or travel as the public may have occasion for. The decision to this effect is made in the exercise of its discretionary and governmental authority over a subject ■ confided by the state to its judgment, and is presumptively correct. But, whether correct or not, no appeal from the judgment to court and jury has been provided for, and therefore none can be had. An indirect appeal by suit against the city to establish a liability against it for an erroneous legislative determination is not only not provided for, but it would be opposed to a principle as well settled and as familiar as any in government.
It would not follow that parties acting under the permis sion would not be liable. Any person making use of the public highways must use them with care, and must have due regard to the rights of others. Those having occasion to use them for the customary purposes of travel and passage have the first right, and their use must not be obstructed except under circumstances that are quite exceptional, and that jnake out a clear excuse. Whether there were such circumstances in this case we do not know, as we have before us such facts only as are given in the declaration. We agree with the circuit judge that no case is made out against the city, and no further question is before us.
The judgment must be affirmed.
The other Justices concurred. | [
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Campbell, J.
This case comes up again on a record not varying very greatly from the former one as reported in 49 Mich. 104. Some of the questions we find it difficult to distinguish from those decided there. The facts are very much confused, and in some respects not so intelligible as they probably were below.
The claim, as before, was for the balance unpaid on a log-delivery contract made by C. & E. Ten Eyck with Jerome P. Kroll, in November, 1878, for two million feet of logs. The amount delivered was somewhat more than this, and there was no dispute concerning what would have been payable had there been no other transactions. Mr. Ten Eyck died before the contract had been fully carried out. Plaintiffs áre assignees of Kroll.
The principal controversy arose out of a written agreement, without date, which was signed by Kroll at a time which he fixes in July, 1878. Kroll claims this never was delivered. Defendants rely upon it as the basis of important rights. It purported to convey to Ten Eyck’s firm, of which he was the only active partner, for $1500, an undivided half interest in all the pine timber on section 12 and parts of section 11, in town 20 north of range 1 west, subject to a balance due to the land-owners for purchase money, which was to be paid out of the proceeds. The contract further required Kroll to prepare and deliver this timber as well as certain logs on sections 13 and 14, which were not sold by this contract, and Ten Eyck was to pay $2.60 and $2.75 for charges in addition to the proper boomage and banking-ground dues.
There had been a previous sale to Ten Eyck of that portion covered, by the $2.60 charge at $5 a thousand, and what was paid or assumed by Ten Eyck on the original landowner’s claims, and for cutting and delivery in the river, was to apply on the purchase. There were also more or less advances further entering into the accounts.
The contract of November, 1878, now in controversy, covered white pine common logs, to be cut or already cut, of a certain size, on sections 13 and 14 and 12. The price of five dollars was for logs delivered in the Tittabawassee boom lira- its. A portion of the controversy referred to the fact that Kroll only retained a half-interest in the logs on section 12 if the undated contract remained in force. It cannot be said, as matter of law, that the contract of November is inconsistent with that of July to any such extent as to abrogate it if made. And it was not so ruled on the trial. And if actually made, so that title passed to anything under it, the title so vested would remain until something was done to restore it. The presumption of its execution and delivery derived from its possession by Ten Eyck must prevail until overthrown in some way. And the testimony bearing on this point becomes' quite important.
Mr. Kroll’s version of the matter is that Mr. Ten Eyck left the office of Mr. Wheeler while Wheeler was drawing the paper, and after it was finished'he told Mr. Wheeler he would go and get Mr. Ten Eyck to complete it. That Kroll started to take the paper with him, and then said he would sign it and go and come back and let Ten Eyck take ih That Wheeler told him he had better sign a few lines below, so that any change might be put in below [probably above] his name. Kroll says he did not find Ten Eyck, and did not go back, and nothing was done about completing it at any time.
Mr. Wheeler denies Kroll’s statements as to what, the latter said to him about what was to be done to complete the agreement, and says that it was drawn under the instructions of both parties, communicated to him when they were present, but his impression is that it was sent unsigned to Mr. Ten Eyck. Having stated that it was sent by him to Ten Eyck as a finished paper, so far as its terms were concerned, this answer was ruled out as incompetent.
It appears to us to be quite material whether the paper did or did not embody all that the parties had agreed upon and instructed the draughtsman to insert. If it was the purpose of the parties to commit their stipulations to writing, the circumstance that when one had left, and the other suggested no change, the attorney dealt with it as complete, was a signifi cant part of the res gestae, and proper to be considered among the other testimony.
And in the same connection Mr. Ten Eyck being dead, it was not proper to allow Mr Eroll to testify that he did nothing under the agreement. It was admitted on both sides that logs had been handled and delivered which were covered by the terms of this contract, which would come within it, if existing, unless other arrangements had been made with Ten Eyck. This testimony was either a legal conclusion which could only be drawn by the body bound to pass on the facts, or it was a statement of a fact in Ten Eyck’s knowledge, and important to his interests. In either case it was improper.
Eroll having written a letter to Ten Eyck during the season of 1878, on February IS, at a time when one of the contracts known as the Emsley contract was running, and the letter being in evidence, was allowed under objection to state the circumstances under which the letter was written, and in doing so related at some length the difficulties which he and Mr. Ten Eyck encountered, and their dealings with Emsley, and anxiety, and his own repeated writing to Mr. Ten Eyck, and their final loss under the Emsley contract, and its consequences. Subsequently the court, being asked to strike out all of Eroll’s explanations, ruled that it should be done so far as related to the Emsley contract and Eroll’s being damnified by it, and ordered the rest to remain. This order gave no means of determining what was to be left in and what thrown out. And inasmuch as the testimony covered private dealings between Eroll and Ten Eyck, to which Eroll could not testify, the omission to define the admissibility operated to create uncertainty, unless all was stricken out, and the court directed the jury that a portion should remain.
It was error to allow the stenographer to testify to detached portions of McCormick’s evidence on a former trial, to which McCormick’s notice had not been called for purposes of impeachment. If this stenographer’s notes were — as they seem to have been — treated as a deposition, then, under the decision in Lightfoot v. People 16 Mich. 507, it was not permissible to allow the stenographer to pick out parts of it. But such notes are in no sense depositions. They are mere minutes of verbal testimony which are of no intrinsic force, and the rule of impeachment is the same as if no notes had been taken, so far as regards the necessity of first interrogating the witness sought to be impeached.
The court allowed certain ledger and journal entries on Ten Eyck’s books to be regarded by the jury as tending to show that the July contract was not in force, and that the November contract was being carried out. This subject was to some extent referred to in our former decision. We think the entries could not be used for any such purpose. They appear under a heading, l£ Ortmann and Kroll logs.” These are neither charges nor credits to Kroll, and consist on the one side of the entry of a series of notes apparently given at different dates, from June to December, 1878, for an aggregate of $6500, and an item of $596.05 for shrinkage in scaling. It does not appear to whom, or for what purpose, these notes were given, or wb.etk.er_ they were paid. It does not appear by these entries, or otherwise, that anything was due under the November contract when these notes were given. But the entries convey no means whatever of identification or purpose. The same side of the page on another book contains two $1000 notes, and a charge of $102 for teaming, not identified or charged to anybody, and not provided for, so far as we can see, by either contract. On the other side of the first set of entries is an entry of a half interest in profits of pine on the lands mentioned in the undated contract, but entered as of July 9, 1878, which is the date given by Kroll. This is put at $1500, around which sum a line is drawn which is not explained on the book. This entry may indicate the purchase of the interest as set out in the July contract, but it certainly bears no indication to the contrary. The court allowed it to go to the jury, but ordered them to treat it as if no line were drawn around it. This was clearly error. The court could not change the books, and putting it in that form, in connection with other remarks, seemed to indicate that it was a credit item on an account with Kroll, or for his benefit. There were also on the same side two items earlier than November, for something over two million feet of logs at prices marked, and at the close an entry,'followed by two subsequent ones, of parcels of T E N logs, mostly on skids, and a part banked, aggregating 2,147,830 feet. No prices are carried out. We referred to this in our former rulings. These entries have no significance upon the present contest without explanations which no one but Mr. Ten Eyck could give. They furnish no basis for an account between these parties, and are mostly, apparently, memoranda which fixed no rights or credits, and to any one but the person who made them have no such significance as would justify a court or jury in guessing at their meaning.
The remaining questions, so far as material, are so closely dependent on what would be affected by our own views on the points already considered as not to make it worth while to refer to them, because upon another trial they may not be raised im just the same way as now. We therefore express no opinion upon them, unless so far as affected by what has been already said.
The judgment must be reversed and a new trial granted.
The other Justices concurred.
McCormick Lad been Ten Eyck’s bookkeeper. | [
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Sherwood, J.
The plaintiff in this case was defendant in a suit brought against him for divorce in the Superior Court of the city of Detroit by his wife, Susanna Eoss, on the 4th day of September, 1880. He was personally served with process in that suit,, and appeared and answered the bill of complaint, which averred his ability to pay alimony, and that fact was not denied in his answer, which was filed on the thirteenth day of September, 1880. On the day the answer was filed tlie circuit court made an order requiring Eoss to pay to his wife $50, for solicitor’s fees, within twenty days, $20 per week temporary alimony, and $20 for expenses of suit. He paid the weekly alimony for four weeks, and then refused to pay any more. On the 6th of November following, dtie proof was made of a demand upon E. H. Eoss for the payment of the weekly alimony and solicitor’s fees according to the order of the court, and his refusal to comply. Thereupon the defendant J Logan Chipman, being the judge of said Superior Court, upon the application of the other defendants, as solicitors for Mrs. Eoss, made an order for the commitment of Mr. Eoss for contempt in refusing to pay the money as demanded and required by the order of September 13th.
This order was made ex parte, and without notice to the defendant, who claimed the same to be invalid, and took his' appeal to this Court therefrom, which appeal was perfected on the 17th day of November, and a return thereto was duly made. On the 2á-th day of December following a showing was made of demand on Eoss for the payment of the weekly alimony which had been due since the appeal was taken, and a refusal on his part to pay; and on the 27th day of December, an order was made by the defendant Chipman as judge of said Superior Court, and duly served on Mr. Eoss, requiring him to show cause on January 3d, 1881, why he should not be committed for contempt.
On the return-day of said order Eoss appeared, made no showing of facts, but claimed that, the cause having been appealed to this Court, the judge of the Superior Court had no longer any jurisdiction or authority over him ; and thereupon defendant Chipman, as such judge, and on motion of the other defendants as counsel for Mrs. Eoss, made an order committing the plaintiff for contempt for refusing to obey said last-named order. In pursuance of the said order of commitment, defendants Griffin, Dickinson and Hosmer, as solicitors for Mrs. Eoss, took out a writ of commitment and delivered it to the sheriff, who arrested the plaintiff thereunder and imprisoned him from the 6th to the 11th of January, 1881, when lie was discharged by this Court on writ of habeas corpus.
To obtain his release the plaintiff paid $125 for legal fees and expenses and was otherwise damaged.
After his discharge plaintiff brought his suit against the defendants for false imprisonment in the circuit court for the county of "Wayue, and upon the foregoing statement of facts claimed he was entitled to recover. The circuit judge, however, was of a different opinion, and directed a verdict for the defendants.
The plaintiff claims:
1st. That the original order of September 13th, granting alimony, was void.
2d. That when the order of January 3d was made, Judge Cliipman had no authority to make the same, and that it was void.
The judge of the Superior Court of Detroit had the power to make the order of the 13th of September referred to. How. Stat. § 6235. The statute does not attempt to designate the circumstances under which he may exercise that power, but expressly leaves it discretionary with the court, after the suit is commenced, to determine wheu and in what cases he may exercise the power. •
It is true, some question has been -made whether or not the granting temporary alimony is within the statute above referred to; but, so long as the necessity for advances for the support of the wife is quite as great as that for other expenses, the equity and justice of the claim certainly require a construction of the statute that will include it; and I think such was the intention of the Legislature in passing the law. There is -no rule of court in this State limiting or defining the circumstances under which the judge shall exercise his discretion for or against the application for alimony or expenses; and there can be no review of his action in the premises unless there has been a gross abuse of that discretion.
The judge of the Superior Court certainly had jurisdiction of the subject matter of the order made on the 13th of September; and upon the facts disclosed upon this record I am unable to discover any abuse of discretion in making the order. They are somewhat different in this case from what was made to appear in the case of Ross v. Ross 47' Mich. 185.
It is now stated that “the bill averred the defendant’s ability to pay alimony, etc., which was never denied on his (plaintiff’s) part, and prayed permanent and temporary alimony.” Under such facts it cannot well be said the court had nothing before it upon which to base the order. The defendant had already filed his answer (but of its character or contents the record does not inform us). If the facts were insufficient to support the order, that is one thing; but if there were no facts upon which to base it, that is quite another. The one raises a question of irregularity only, or erroneous judgment; the other, a question of- jurisdiction. An order made in violation of the rules of court or rules of practice not statutory, is only irregular-, and must be regarded as valid and be obeyed until set aside. 1 Hoff. Ch. Pr. 450; 1 Barb. Ch. Pr. 582, 588 ; Osgood v. Joslin 3 Paige 195; Studwell v. Palmer 5 Paige 166; Jennison’s Ch. Pr. 272; Hunt v. Wallis 6 Paige 371. Such an order is voidable, and not void. See authorities cited above.
The bill of complaint in the divorce case asked for the order made,, and averred the defendant’s ability to comply with it. It is true it did not show but that she had property. I think there may be cases where she has property when it would be quite proper for the court to make the order; as where her property is unproductive or unavailable, or under the control of her husband. I think the judge of the Superior Court had jurisdiction to make the order of the 13th of September.
The subsequent proceedings for the purpose of enforcing the order, and which are made the occasion for the prosecution in this case, remain to be considered. The order for temporary alimony and expenses is interlocutory, and in no way affects the merits of the cause. There are no statutory provisions for its enforcement, except the general one contained in How. Stat. § 7257, subd. 3, and those in How. Stat. ch. 256; anything additional comes from the practice of the court. When the demand was made upon the plaintiff for payment of the moneys accrued after the appeal was taken to the Supreme Court from the order of commitment, com plainant in the divorce suit proceeded under section four of said chapter to compel payment, and upon affidavits showing a refusal to pay on demand made, the court made an order, which was served upon the plaintiff, to show cause why he should not be committed for contempt. On the return-day he appeared to this order*, and, as the record states it, “ made no showing of facts, merely claiming that the cause having been appealed to the Supreme Court the case was no longer in the Superior Court, and that court had no authority over him.”
The practice in this case, though irregular, was not such as to divest the court of jurisdiction. The order of the 13th of September was never vacated or set aside, and no proceedings seem to have been taken for that purpose, and the order was in full force when the order of January 3d was made. There were proceedings taken, presuming the order of the 13th of September valid, to obtain the order of the 3d of January, which were in conformity to the statirte and practice under it, and they were sufficient to require the court to pass judgment upon them, though insufficient to sustain the action taken by the court. There was something before the court to act upon, and such error in ■ judgment will not furnish sufficient grounds for this suit against the judge of the Superior Court or the counsel for the complainant, who, so far as the record shows, acted in entire good faith in all they did. Yates v. Lapsing 9 Johns. 423; Miller v. Seare 2 W. Bl. 1141; Randall v. Brigham 7 Wall. 523; Lange v. Benedict 73 N. Y. 12; Carratt v. Morley 1 Ad. & El. (N. S.) 18; Williams v. Smith 14 C. B. (N. S.) 622; Campbell v. Brown 2 Woods 350; Cooley on Torts 415 ; Bevard v. Hoffman 18 Md. 479.
The appeal taken from the first order of commitment did not affect the merits, and did not prevent any proceedings being taken in the cause other than those for enforcing payment of the alimony and expenses due when the proceedings appealed from were commenced.
The judgment of the circuit co.urt must be affirmed.
Champliet, J. concurred. | [
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Cooley, C. J.
Complainant, in the year 1868, erected a brick block on the corner of Main and Front streets in Marquette village, and obtained the permission of the common council to make openings in the sidewalks for the purposes of stairways to the basement story. The consent was given by a vote of the common council in response to his petition. The stairways were constructed, and have been in use ever since, with proper railings for the protection of those using the sidewalks, and they add largely to the value of the building. After the construction of the block Marquette was incorporated as a city. In September, 1878, the city council directed the stairways,'to be removed as illegal, and the openings in the sidewalks to be closed, and the complainant filed this bill to enjoin their action. The circuit court, on hearing on pleadings and proofs, awarded a perpetual injunction, and the city appeals from the decree.
It is contended, on behalf of the city, that the village common council had no power to give ,permission for the permanent appropriation of any portion of one of the public streets for private purposes, and that if it had had the power it could have exercised it effectively only by means of a grant, duly executed, and with certainty of description as to the privilege granted. It is further said that the permission, under which the complainant has been appropriating a portion of the public street for many years, has been largely valuable to him, and it is therefore ungracious and inequitable for him to endeavor to make the appropriation perpetual, as against the will of the city, when, in the opinion of the city council, it has become a public grievance.
But it is not necessary in this case to determine whether the permission given by the village council was in due form for the purposes of a permanent appropriation, or even whether the council had the power to consent to such an appropriation. It is undoubted that the council had general control of the streets under the village charter; and it was a part of its duty to prevent the creation of any public nuisance within them. It is not to be assumed that consent would have been given to such a nuisance, and when, by formal resolution the council assumed to give permission to complainant to make the openings and build the stairways complained of, it must have been done in the belief that no public inconvenience would follow If the permission was effectual for no other purpose, it at least rebutted any presumption which might otherwise have existed, that this partial appropriation of the street was per se a nuisance.
If the permission was a mere license, and the subsequent action of the city council is to be regarded as a revocation of the license, it does not follow that the plaintiff has by the revocation, immediately been converted into a wrong-doer. The question' will then be whether, the act of the complainant in maintaining his structures constitutes a public nuisance; and while the city council is entitled, under its supervisory control of the public streets, to consider and pass upon that question for the purpose of deciding upon the institution of legal proceedings for abatement, it cannot make itself the judge. Maintaining a nuisance is a public offense; and the fact, as in other cases of alleged criminalityj is to be tried on proper accusation and in the regular courts. The mere fact that the party makes use of some part of a public street for his private purposes does not make out the public offense. This was decided in People v. Carpenter 1 Mich. 273, and has never been donbted in this State.
The city in this case was proceeding in an act of destruction on an assumption that the structures were already condemned as illegal. This was unwarranted, and it was quite right that the action should be restrained.
The decree must be affirmed with costs.
The other Justices concurred. | [
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Smith, J.
The plaintiff-appellant in this action is a director and stockholder of defendant Burton Mortgage Bond Company, a Michigan corporation. The defendants-appellees are 3 directors of the corporation. They have no other official duties with respect to the corporation. They sit on the board and they direct. We will call them naked directors, borrowing the expression from their brief, to distinguish them from the remaining directors, all of whom are officers of the corporation. (None of the latter group is a party to this appeal.)
The action arises out of a plan to dispose of certain real property belonging to the corporation, discussed at a board meeting on September 15, 1954. The defendants-appellees take oath that the following transpired:
“Mr. Edson N. Burton reported a tentative offer of $3,000 per acre for the 77-acre parcel of land this company owns in section 9, of Livonia. This offer was not in writing but will be so submitted and reported at the next meeting of this board.
“Mrs. Harriet B. Reed did not think we should pay a commission to anyone for selling this land. She thinks we should advertise and sell it ourselves.
■ “Mr. Frank Burton stated that he thought $3,000 per acre was a good price and that we ought to place the sale in the hands of a real-estate broker and pay a commission for his services.
“Mr. Edson N. Burton concurred.
“Since Leo Nye has done some preliminary investigating price-wise on the land and he seems to be the real-estate broker involved, Mr. William B. Giles ■ thought we should tell him we are or are not going to pay a commission. Mr. William ,B. Giles thinks that $3,000 per acre is a good price for the land in question.
“Mr. Clarence M. Burton thinks $3,000 per acre net, to us, is a fair price to ask for the land and further thinks that if a real-estate broker, no matter who, sells it for us he is certainly entitled to his full commission.
“Messrs. Sauer, Kleinert and Potter all think the price is a fair one and Mr. Potter thinks we should authorize the officers of the company to proceed with the offering.
“Mrs. Elizabeth B. Spokes thinks it would be well to sell some of the land we own in Livonia but knows nothing of its value.
“Mrs. Harriet B. Reed said she does not know if $3,000 per acre is a fair price or not.
“On motion duly made by Mr. Ray L. Potter, supported by Mr. Walter A. Kleinert and carried, it was:
“Resolved, that the president and/or executive vice-president be and he or they are hereby authorized to sell said 77-acre parcel or any part of it for not less than $3,000 per acre and to provide for a commission from ns of not to exceed 5% ont of the $3,000 figure and that a proper deed of conveyance be executed by the officers so authorized by the bylaws.
“All voted ‘aye’ except Mrs. Harriet B. Reed, who voted ‘no’.”
Before going on to describe Mrs. Reed’s charges, it will make for a more complete understanding of the issues if we anticipate to the extent of pointing out that defendants-appellees assert that the mainspring of the case is found in the last sentence above quoted. They assert that an outvoted and disgruntled director seeks to substitute for normal corporate action the judicial processes of this Court.
The plaintiff-appellant’s version (which we accept as true for the purposes of this appeal) differs from the above. One specific difference is that she asserts that the sale was to be at terms “satisfactory to the officers.” Beyond this, however, she paints a picture of even darker hue: The directors have conspired to violate their fiduciary duties; they have knowledge concerning the sale which they have not disclosed, “although requested by your plaintiff;” they are nonvigilant and nondiligent in the performance of their duties, and their actions are constructively fraudulent. We will not amplify the charges. Enough has been said to indicate their scope and the full range of condemnation made. They are serious and they are sweeping. In fairness to defendants-appellees we should add that the charges are vigorously denied by them, and under oath.
It is upon these allegations that aid of the Wayne county chancellor was invoked. A stockholder’s action was filed by plaintiff-appellant in the circuit court for the county of Wayne. She prayed for an injunction against defendants Frank Burton, Edson N. Burton, Clarence M. Burton, Ray L. Potter, as officers and directors of Burton Mortgage Bond Company, against such, company, and against defendants-appellees William B. Giles, Walter A. Kleinert and Robert L. Saner, as directors thereof. The relief sought seems sufficiently comprehensive to forestall the contemplated, conspiratorial, and asserted fraud: The defendants shall not convey the property until they make a full disclosure.
But the difficulty with plaintiff-appellant’s ease, the last-named 3 directors, appellees herein, assert, is that they are utterly without power to convey, transfer, sell or encumber. That power, under the bylaws of the corporation, they assert, is vested in others:
“ ‘Execution of documents. How made. All deeds, documents, notes, bills, checks, drafts, mortgages, and orders for payment of money, shall be signed by such officer or officers or authorized agent, as the board of directors may from time to time officially, by resolution, specifically authorize and direct. In the absence of any specific resolution or bylaw, any 2 of the following officers, the president, executive vice-president, the secretary or treasurer, shall be authorized to execute the same in behalf of the corporation.’ (Article 9, § 1.)”
Accordingly, the 3 director-defendants who are not the officers of the company, and who lack (either under the above bylaw or other appropriate resolution) power to convey or transfer, moved to dismiss as to themselves. Their ground, in essence, was that, lacking such power, they were not proper parties to the action. It was the trial court’s granting of their motion which brings the case to us. We note, incidentally, that the officers named in the above-quoted bylaw, who have the conveyance authority, are and remain parties defendant to the action.
It is with reluctance, and only upon a clear showing of actual or impending wrong, that we move in on the affairs of a corporate body. We have con sistently followed the rule stated in Wagner Electric Corp. v. Hydraulic Brake Co., 269 Mich 560, 566, 567, that:
“So long as the directors of a corporation control its affairs within the limits of the law, matters of business judgment and discretion are not subject to judicial review. 2 Cook, Corporations (7th ed), § 545; 1 Morawetz, Private Corporations (2d ed), § 447; Hunter v. Roberts, Throp & Co., 83 Mich 63; Park v. Grant Locomotive Works, 40 NJ Eq 114 (3 A 162).”
Likewise, in Barrows v. J. N. Fauver Co., 280 Mich 553, 558, 559, we said:
“It is not the function of the court to manage a corporation nor to substitute its own judgment for that of the officers thereof. It is only when the officers are guilty of wilful abuse of their discretionary powers or of bad faith or of neglect of duty or of perversion of the purpose of the corporation or when fraud or breach of trust are involved that the court will interfere. Dodge v. Ford Motor Co., 204 Mich 459 (3 ALR 413).”
So far, then, as these naked directors are concerned, do we have stated to us a cause of action warranting our action as to them? As noted above, in reaching our decision we must, for the purposes of the appeal, accept as true the plaintiff-appellant’s allegations. But even such acceptance does not automatically open our doors to her. Stripped of verbiage, plaintiff-appellant complains that the directors are conspiring, and abusing their trust, with respect to the Livonia property, and plaintiff, therefore, prayed to the court to enjoin the individually named defendants “from in any way conveying or attempting to convey” the property in question. The pleading is clear, both as to charges made and as to relief prayed. But if directorial connivance at fraud is to accomplish its wicked purpose it must come to flower in affirmative action of some kind. In this case the conspiracy, as it is pleaded, looks to the fraudulent disposition of the property. Hence, the thrust of the injunction prayed, at those officers who have it within their power to convey. The pleadings are clearly nondemurrable so far as they are concerned.
But the defendants-appellees herein are not so empowered. The limit of their authority has been reached when, by directorial action, they authorize the proper officials to convey. Authorization is not conveyance. They are 2 separate and distinct legal steps which we find no authority or justification for merging.
The injunctive process of the chancellor, “the strong arm of equity,” we employ only with full conviction of its urgent necessity, necessity as to purpose and necessity as to parties. With respect to the latter we are aware that an injunction to refrain from doing a fraudulent act will not hurt an honest man. But we are even more aware that an honest man should not be subject to it. In short, as long as the officers who are authorized by the corporation’s resolutions and bylaws to convey are subject to injunction, the plaintiff-appellant is amply protected and the nonofficeholding, naked, directors are not necessary parties thereto.
Order of dismissal affirmed. Costs to appellees.
Carr, C. J., and Btjtzel, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Smith, J.
This is a zoning case. The plaintiffs are the owners of property in the city of St. Clair Shores. They wished to obtain permission to build a gasoline service station thereon. The project seemed to them not unreasonable. They owned the-land. It was on a State highway, at the corner of East Jefferson avenue and Doremus street. Business establishments were located nearby. In fact it was zoned as business B and in a business B area the zoning ordinance provides that service stations-are permitted. How, then, does the case come to us f
It comes to us because plaintiffs were denied permission to so use their property. The attentive may have observed a contradiction in what we have said.. Gasoline service stations, we noted, are permitted in a business B district, yet we pointed out that in plaintiffs’ case permission was denied. The controversy arises at this point. It is important (since it involves an alleged arbitrary assumption over the-use a free man makes of his property) and we will trace it in some detail.
Under our housing and zoning laws (CL 1948,. § 125.401 et seq., as amended [Stat Ann 1949 Rev § 5.2771 et seq., as amended]), a city council is given the power to enact a comprehensive zoning ordinance. In addition, by the terms of section 5 of the-zoning act (CLS 1954, § 125.585 [Stat Ann 1953 Cum Supp § 5.2935]) the city is permitted to have a zoning board of appeals (for purposes later to be described) to consist either of appointed members, or the legislative body of the city or village itself. Lithe case before us the city council, pursuant to the act, acted as the board. In such capacity, as the trial court’s opinion carefully points out, “It is elementary that, although made up of members of the legislative body of the city of St. Clair Shores, the zoning-board of appeals functions as a separate entity keeping minutes and records of its meetings as such.” So acting it sits as a board, not as the city council, and as such board it lacks the power to enact ordinances and adopt resolutions for the government of the city, these powers being lodged in the council by section 3.2 of chapter 3, “Plan of Government” of the city charter of St. Clair Shores.
This is not to say, however, that it is without power. As the city’s zoning board of appeals it ■exercises both appellate and original jurisdiction. We are concerned, in this case, only with the latter, since we do not have an, appeal from an administrative determination by a city official. None was made. Nor do we have a petition to “vary or modify” rules and regulations in. a case “where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter” of an ordinance. What we do have is an application by the plaintiffs, under the ordinance, for a certificate of compliance and a building permit. This was submitted to the zoning board of appeals. The board’s jurisdiction to act upon plaintiffs’ certificate arises from the fourth sentence of paragraph (a) of section 5 of the act (CLS 1954, § 125.585 [Stat Ann 1953 Cum Supp § 5.2935]) providing as follows:
“They (zoning board of appeals) shall also hear .and decide all matters referred to them or upon which they are required to pass under any ordinance of the legislative body adopted pursuant to this act.”
Since the board’s jurisdiction to act upon plaintiffs’ certificate arises from the above-quoted provision, permitting it to exercise certain original jurisdiction, the term “appeals” board, as applied to these proceedings, is obviously a misnomer. As the trial ■court put the matter:
“The provisions of the zoning ordinance with reference to service stations in business B district is rather unique inasmuch as it permits no administrative officer to pass upon their use in such district. .Service .stations and their establishment in this zone are left entirely to the zoning hoard of appeals for approval. It is quite plain that original plenary jurisdiction over service stations in business B district is thus given to the zoning board of appeals. That section of our statutes which most nearly defines the power of the zoning board of appeals to act in the premises is CLS 1954, § 125.585, subd a (Stat Ann 1953 Cum Supp §5.2935 [subd a]), the applicable portion of which is as follows:
“ ‘They [zoning board of appeals] shall also-hear and decide all matters referred to them or upon which they are required to pass under any ordinance-of the legislative body adopted pursuant to [the provisions of] this act.’ ”
With respect to such application, the city’s planning commission (in the space provided for its “comments”) had expressed no opposition and it may be-assumed that they had no objections thereto. A public hearing was held on the application. Opposition was expressed at the meeting. If was pointed out by one objector that the area had been improved ;■ that lights and sewer had been put in and the road improved. “It is a far better residential area than it ever was. To put in a gas[oline] station would undo everything that has been done. It is a very-good residential area now.” The petition was denied, unanimously. Plaintiffs thereafter filed their bill of complaint for declaratory judgment and for injunctive relief. The trial court’s decree in favor of plaintiffs ensued and appeal was taken to this-Court.
Thus our problem. It does not cover a wide field. The plaintiffs complain primarily that the zoning-board of appeals is exercising, by delegation, a legislative function, which they condemn as unconstitutional, and that this delegated legislative function is exercised without guide or standard. They point to section 6-B of the zoning ordinance (which allows- service stations in a business B district “only when permitted by the board of appeals as specified in section 10, paragraph 10 hereof”) and, in turn, to section 10 thereof. The latter section, entitled “Board of Appeals,” permits the board to vary or modify the application of. the regulations, “in harmony with their general purpose or intent,” following which it is provided that no service stations may be permitted in business .B districts “except after an advertised public hearing.”
There is no doubt that a legislative body may not delegate to-another its lawmaking powers. It must promulgate, not abdicate. This is not to say, however, that a subordinate body or official may not be clothed with the authority to say when the law shall operate, or as. to whom, or upon what occasion, provided, ■ however, that the standards prescribed for guidance are- as reasonably precise as the subject matter requires or permits. As we said in Devereaux v. Township Board of Genesee Township, 211 Mich 38, 43:
“The statute in question provides no" method for the application for licenses, contains no qualifications which the applicant must possess, provides no standard of fitness, makes no provisions as to the character of the structure or equipment to be used in the business regulated. It, in fact, attempts to confer upon the township board the arbitrary power to grant or refuse a license, according to its whim or caprice. Under all the authorities, we think this cannot be done.”
Expressive of the same principle was our holding-in Hoyt Brothers, Inc., v. City of Grand Rapids, 260 Mich 447. The ordinance involved provided (p 450):
“ ‘Sec. 6. Whenever it shall appear to the city manager from such investigation and report that the charity is a worthy one and that the person or per sons making the application are fit and responsible parties, he shall issue a permit to such person, firm, corporation or society.’ ”
"With reference to it, Mr. Justice North spoke for the Court, in part, as follows (pp 451, 452):
“The ordinance contains no rule or provision by which the city manager is to determine whether the charity is ‘worthy’ or the applicant is ‘fit and responsible.’ In making his determination he may apply one or more of a great variety of qualifications which to the city manager may seem proper, or he may grant or refuse the permit solely on captious grounds. And he may apply one test to one applicant and another to another. The ordinance does not contain the slightest indication of the kind or character of charity that is a ‘worthy one’; and likewise it is wholly silent as to what type of qualification would constitute an applicant for a permit ‘fit and responsible.’ "We see no escape from the conclusion that the ordinance attempts to vest the city manager with an arbitrary power in the exercise of which he will say to one applicant ‘yes,’ and to another ‘no.’”
Upon the facts presented we are not concerned with the problem of variations in permissible standards between morally good and bad business, nor need we weigh the various factors that have influenced decision in the past upon’the adequacy of the standard employed. For in the case before us there is no reasonable standard whatever. The presumption of constitutionality of zoning regulations referred to by us in Hammond v. Bloomfield Hills Building Inspector, 331 Mich 551, cannot prevail against unconstitutionality patent on the face of the ordinance itself, nor can the ordinance be saved by its broad statements as to the public health, safety, and general welfare, since such statements afford no sufficient guide for the board in the exercise of its discretion. Keating v. Patterson, 132 Conn 210 (43 A2d 659).
The ordinance presented is fatally defective. The zoning hoard of appeals is simply given authority to permit, and obviously to refuse to permit, the erection of gasoline stations after public hearings. But what standards prescribe the grant or rejection of the permission? We find none. The ordinance is silent as to size, capacity, traffic control, number of curb cuts, location, or any other of the myriad considerations applicable to such business. In this situation the words of the supreme court of Pennsylvania on a similar question are peculiarly appropriate :
“Where a zoning ordinance permits officials to grant or refuse permits without the guidance of any standard, but according to their own ideas, it does not afford equal protection. It does not attempt to treat all persons or property alike as required by the zoning act. While the exercise of discretion and judgment is to a certain extent necessary for the proper administration of zoning ordinances, this is so only where some standard or basis is fixed by which such discretion and judgment may be exercised by the board. Where a zoning ordinance is vague and indefinite, it cannot be sustained as valid under the authorizing act.” Taylor v. Moore, 303 Pa 469, 479 (154 A 799).
Without definite standards an ordinance becomes an open door to favoritism and discrimination, a ready tool for the suppression of competition through the granting of authority to one and the withholding from another. Such charges, in fact, were made in the case before us, another service station having been ¡aermitted on a nearby property. We need not pass upon them. The ordinance, as the trial court found, is unconstitutional and void, in the particular provisions with respect to which com plaint is made, since it fixes no standard for the grant (or refusal) of the certificate prayed. A zoning ordinance cannot permit administrative officers or hoards to pick and choose the recipients of their favors. Under the view we have taken it is unnecessary to pass upon other questions presented.
Decree affirmed. Costs to appellees.
Dethmers, C. J., and Sharpe, Reid, Boyles,'Kelly, Care, and Black, JJ., concurred. | [
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Butzel, J.
Plaintiffs, members of 3 local unions of the International Brotherhood of Electrical Workers, AFL, hereinafter referred to as IBEW, brought suit in chancery against Kenneth Favell, acting as administrator, and others as officers respectively of these locals. The bill alleged that Favell had been illegally appointed administrator and had unlawfully seized control and management of the local unions; that he had mismanaged and misappropriated the funds of these local unions; that he had illegally replaced duly elected officials of these local unions with other defendants; and that he was commingling and dissipating the properties, funds and other assets of the local unions. The bill further alleged a deprivation of plaintiffs’ property interests and the absence of any intra-union remedy. The bill prayed for a temporary restraining order, an accounting, the appointment of a receiver and other relief.
Defendants’ answer denied many of plaintiffs’ allegations and averred that plaintiffs could not maintain the suit because they failed to exhaust intraunion remedies available to them or even make any any effort to avail themselves of such remedies. Plaintiffs amended their bill to state that the suit was brought in a representative capacity and that the union constitution afforded them neither procedural nor substantive remedies or due process. Defendants had also filed a motion to dismiss. Plaintiff then secured an order for discovery of certain books and papers relating to the merits of the action. Defendants upon being granted leave appealed from the discovery order, principally on grounds that plaintiffs failed to exhaust their intraunion remedies.
Defendants’ motion to dismiss was never disposed of. They did not contest the entry of the discovery order and there is some doubt that an order of that type is appealable. Cf., Erwin v. Ottawa Circuit Judge, 138 Mich 271; Mitchell v. Bay Probate Judge, 155 Mich 550; 37 ALR2d 586. However, in spite of the procedural irregularities ive granted leave to appeal in order to determine whether the court should have issued the order for discovery because plaintiffs have not exhausted the remedies available to them within the framework of the constitution of the IBEW. For purposes of the determination of this question we consider the well-pleaded allegations of plaintiffs’ bill to be true.
The general organization of the IBEW consists of the International Convention (10), the International President (IP) and other officers, including International Vice-Presidents (IVP), the International Executive Council (IEC), and the Local Unions (LU’s) with their officers and executive councils. The international and local unions operate under the IBEW’S written constitution by which the local unions and their membership have agreed to be bound.
Article 17, § 1, and article 27, § 1, of the IBEW constitution provide that a LU or a member may have a charter or membership automatically canceled if resort is had to a court of law before all remedies through all the courts of the IBEW are first exhausted. This Court is in accord with the general legal principle that exhaustion of intra-union remedies is a necessary prerequisite to recourse to the courts. Mayo v. Great Lakes Greyhound Lines, 333 Mich 205; Hartley v. Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, 283 Mich 201; Harris v. Detroit Typographical Union, 144 Mich 422.
The local unions of which plaintiffs are members apparently were placed in charge of defendant Eavell under article 4, § 3(9), which empowers the IP:
“To take charge of the affairs of any L.U. when in his judgment such is necessary to protect or advance the interests of its members and the I.B.E.W., but for a period not to exceed 6 months. If the I.P. or his representative cannot or has not adjusted the affairs of the L.U. involved at the end of this period, then he shall refer the entire case to the I.E.C. which shall render a decision at its next regular meeting. The I.P. may suspend any local officer or member who offers interference in such cases.”
The IEC is similarly empowered by article 9, § 7, and article 10, §§ 16, 17, seemingly provide for an appeal to the IC from a decision of the IEC. The IP is further empowered under article 4, §3(2):
“To decide ail questions of law, disputes or questions in controversy however arising, all his decisions being subject to appeal, first to the I.E.C. and then the I.C. (Notice in writing of appeal from any decision of the I.P. must be filed with the I.S. and I.P. within 30 days from date of such decision.)”
Defendants contend that plaintiffs should have appealed from the appointment of Favell under these provisions. The IEC has already confirmed the action of the president under article 4, §3(9), supra. This confirmation, if considered as the appeal, would not meet the requirements of due process noted in Mixed Local of Hotel & Restaurant Employees Union Local No. 458 v. Hotel & Restaurant Employees International Alliance and Rartenders International League of America (1942), 212 Minn 587 (4 NW2d 771). There was no notice or hearing. However, an appeal to the IC from decisions of the IEC is generally provided for. In addition, it may well be that the provisions also mean that, apart from the confirmation by the IEC, plaintiffs are entitled to an appeal to that body from the action of the president. Whether an appeal to the IEC in view of their prior confirmation, or whether an appeal to the international convention which meets every 4 years, were both merely .illusory remedies, cannot affect our decision in this particular case. Plaintiffs are bound by this constitution and this Court, prior to action by the IBEW, cannot resolve ambiguities in the constitution or set aside its provisions by which plaintiffs are bound. Fairly construed these provisions offered plaintiffs a remedy which they must exhaust.
There are other provisions of the constitution which, though not relied on by defendants, afford plaintiffs a measure of intra-union relief. Article 27, § 2, provides that any member may be removed or suspended for commission of certain offenses, among which are the following:
“(2) Violation of any provision of this constitution and the rules herein, or the bylaws, working agreements, of trade and working rules of a L.U. # * #
“(5) Advocating or attempting to bring about a withdrawal from the I.B.E.W. of any L.U. or of any member or group of members.
“(6) Publishing or circulating among the membership, or among L.U.’s, false reports or misrepresentation. * * *
“(8) Creating or attempting to create dissatisfaction or dissension among any of the members or among the L.U.’s of the I.B.E.W. * * *
“(14) Fraudulently receiving any moneys due a L.U. or misappropriating the moneys of any L.U.”
Plaintiffs’ bill alleges misappropriation of funds, distribution of misleading and conflicting financial statements, abuse of membership rules, abuse of power given by the IP, abuse of the LU’s constitution and bylaws regarding election of officers, and, that the purpose of defendants’ actions is to oust plaintiffs from membership in the local unions. Thus the alleged acts complained of are those which may fairly be considered as offenses under the quoted provisions. It is further provided that charges may be brought by anyone and must be written and filed with the' district IVP who, in the case of officers, shall hear and determine the case. Appeals from his decision are provided for. As anyone can bring the charge, plaintiffs’, argument that “nowhere does that constitution provide any remedies1 which are available to local unions as such, as distinguished from members thereof” is of no merit. By successfully charging and prosecuting defendants for these offenses plaintiffs may secure their removal and thereby correct the abuses complained of insofar as they are attributable to defendants'. It is true that both in the article dealing with offenses and that with trials (article 27, §3) there is the provision that:
“(This section shall not be construed to conflict with power of the IP or the IEC to take action in certain cases, as provided in articles 4 and 9.)”
(Articles 4 and 9 contain, inter alia, the provisions under which the unions were taken over by defendants under action of the IP.)
Whether or not this clause exempts defendants from prosecution for offenses again is a matter for the tribunals of the IBEW to determine and not this Court, at least in advance of an attempt by plaintiffs to avail themselves of these provisions.
The whole question presented on this record is the right of the plaintiffs to the order of discovery granted by the trial court. Not having exhausted the remedies provided by the constitution of the IBEW, we hold that they are not entitled to invoke the discovery rule.
The case is remanded to the trial court with instructions to vacate said order. In view of the nature of the question involved, no costs are allowed on this appeal.
Caer, C.J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Butzel, J.
On April 24,1953, Fred Loving, plaintiff, left his 1953 Ford automobile for repairs at the garage of Howard Lare, Inc., a Delaware corporation, defendant. The garage. evidently adjoined defendant’s salesroom and parts department. The following day defendant notified plaintiff that during the early hours of the morning defendant’s premises had been broken into and plaintiff’s automobile stolen. The car was finally recovered in a badly-damaged condition in Chicago, Illinois. Plaintiff was put to travel and other expense incidental and in addition to having the car repaired. He brought suit in the court of common pleas for the city of Detroit where defendant prevailed. Plaintiff appealed to the circuit court which reversed the judgment of the lower court and awarded plaintiff a judgment of $793.36 plus interest and costs. Defendant appeals.
CL 1948, § 256.541 (Stat Ann 1952 Rev § 9.1721) provides:
“Whenever any damage shall be done to any motor vehicle while in the possession or under the care, custody or control of the owner, his.agent or servant, or the keeper of any public garage or other establishment where such vehicle shall have been accepted for hire or gain, proof of such damage shall be prima facie evidence that such damage was the result of the negligent act of such owner or keeper of the place where such vehicle was stored.”
A showing of a demand for and a failure to return the automobile constitutes a prima facie case both under this statute, General Exchange Insurance Corp. v. Service Parking Grounds, Inc., 254 Mich 1, and the common law of bailments. Tatro v. Baker-Fisk-Hugill Co., 215 Mich 623; Smith v. Bailey, 195 Mich 105 (15 NCCA 308). It then becomes defendant’s duty to establish its freedom from negligence, or, if there be any, that it was not the proximate cause of plaintiff’s damages.
The facts, as they appear in the settled record on appeal, are not in dispute. The car was left in the garage overnight with the keys in the ignition switch. The thief broke a small glass pane inset in the garage door, reached through and removed the bar which held the door closed from the inside, and drove the car out of the opened door. Apparently aware of the fact that automobiles are easily movable as well as the danger of possible theft, defendant employed a night watchman but only until 4:30 a.m. On the morning in question the watchman left at approximately 4:30 a.m., when at that time of the year it was still dark, and the premises remained unguarded until 6:15 a.m. when another employee of defendant reported for work. The automobile was stolen during that unattended interval.
The circuit court, in reversing the court of common pleas, found for plaintiff on the ground that defendant was negligent in leaving the key in the ignition switch, thereby distinguishing Minneapolis Fire & Marine Insurance Co. v. Porter, 328 Mich 11. In that c&se we reversed the lower court and held the failure of the garage owner to report the theft of plaintiff’s automobile not to be the proximate cause of plaintiff’s loss. We did affirm, however, the finding of the trial court that the door was properly locked and adequately protected the cars inside and therefore that there was no negligence on the part of the garage owner in that particular. The record, briefs and opinion in that case are silent as to the primary act of negligence herein involved, leaving the key in the ignition switch.
In General Exchange Insurance Corp. v. Service Parking Grounds, Inc., supra, we considered, inter alia, the fact that plaintiff’s car was unlocked as evidence of. defendant’s negligence. .We held the owner of an open parking lot liable for the theft of plaintiff’s car where the cars were left unlocked in a lot which was inadequately attended and equipped, in view of the neighborhood. We said (pp6,7):
“Plaintiff might have had a better opportunity of protecting his car from theft had he kept it locked at the curb of a street in the vicinity. At least there would have been more difficulty in stealing a car that was locked and not properly guarded.”
Courts have considered the leaving of keys in the ignition switch as evidence of negligence. See Farrell-Calhoun Co., Inc., v. Union Chevrolet Co., 21 Tenn App 554 (113 SW2d 419); Newton Chevrolet Co. v. Canle, 31 Tenn App 67 (212 SW2d 392); Widawski v. Lupowitz, 164 Pa Super 298 (63 A2d 106); but see Swain v. Twin City Motor Co., Inc., 207 NC 755 (178.SE 560). Defendant relies upon Howard v. Swagart, 82 US App DC 147 (161 F2d 651), where it was stated that leaving the key in the ignition in a parking lot garage did not, in that jurisdiction, constitute negligence. Aside from the fact that we may disagree with the conclusion, it is to be noted that the court there took notice of the custom and practice in the area of leaving the keys in the switch. See, also, Carty v. Lemmon Auto Co., 72 SD 559 (37 NW2d 454). While pertinent, such evidence is not controlling, Farrell-Calhoun Co., Inc., v. Union Chevrolet Co., supra, and we have held that proof of such custom and its uniformity must be shown as well as the fact that it was brought to the plaintiff’s attention or that he had knowledge of it. Tatro v. Baker-Fisk-Hugill Co., supra. The record in this "case is absolutely devoid of such evidence.
When considered with the circumstance of the keys being left in the ignition,' the fact that the watchman left at 4:30 a.m., thus leaving the place unattended at the time the theft occurred, may be considered as evidence of. negligence. While the court below evidently did not think so, we noted its relevance in General Exchange Insurance Corp. v. Service Parking Grounds, Inc., supra. So have other courts. See Steenson v. Flour City Fuel & Transfer Co., 144 Minn 375 (175 NW 681); Smith v. Cohen, 116 Pa Super 395 (176 A 869); Rogers v. Murch, 253 Mass 467 (149 NE 202). A correct conclusion may be affirmed though for reasons other than those given by the court below. See McNair v. State Highway Department, 305 Mich 181.
If defendant was negligent the intervening act of the thief did not necessarily break the chain of causation. Stevens v. Stewart-Warner Speedometer Corp., 223 Mass 44 (111 NE 771); McKnight v. Batrick (Mo App, 1932), 49 SW2d 277; cf., Swain v. Twin City Motor Co., Inc., supra.
Defendant contends that the circuit court erred in reversing the judgment of the court of common pleas in that “an appellate court may not substitute its own judgment or opinion on a question of fact unless the trial court’s findings, sitting without a jury, are against the clear preponderance of the evidence.” It is true that in Wayne county the circuit court, on appeal from the court of common pleas, is bound by findings of fact which are not against the preponderance of the evidence. Michael v. Kircher, 335 Mich 566; CLS 1954, § 728.4 (Stat Ann 1953 Cum Supp § 27.3654). However, the issue in the circuit court, as well as in this Court, is whether the undisputed facts create any liability on the part of the defendant. This is as much a question of law as one of fact. In General Exchange Insurance Corp. v. Service Parking Grounds, Inc., supra, on undisputed facts, we reversed the circuit court and held defendant liable. This is essentially the action taken by the circuit court in this case.
Affirmed, with costs.
Carr, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Kelly, J.
This is an action for accounting brought by Beulah Vander Honing, executrix of the estate of Eva L. Pratt, against Marion Taylor, sister of deceased. Eva Pratt retired after 40 years as a school teacher in the Grand Rapids public schools. Prom 1928 to July 12, 1950, she resided with her brother at the residence of one Mrs. Westveer.
In the fall of 1949, Eva Pratt became ill and was bedridden for the remainder of her life. By July, 1950, her brother thought it too much for him and Mrs. Westveer to take care of Mrs. Pratt and on July 12, 1950, she was removed to the home of her sister, defendant in this case, Marion Taylor. At that time defendant Marion Taylor was 74 years old and was residing alone in the home to which Mrs. Pratt was brought. Eva Pratt continued to reside in defendant’s home and was taken care of by the defendant for the 2-month period until the time of her death on September 23, 1950.
A safe-deposit box was jointly held by deceased, defendant and Clarence Taylor, the brother of deceased and defendant. There is no dispute in this record that shortly after Mrs. Pratt came to defendant’s home, defendant went to the safe-deposit box with a Mrs. Weatherwax and removed all of the contents of said box and brought same back to Mrs. Pratt.
Among the contents was a sealed envelope containing $4,180. This $4,180 represented proceeds from the sale of property belonging to a deceased uncle of decedent and defendant.
It is plaintiff’s contention that decedent purchased this property from her uncle and after his death sold it for $5,500. Defendant contends that her uncle deeded the property to the deceased with the understanding that the proceeds from the sale of said property were to go to the defendant in considera tion of the care she gave him during his last years of life,
Mrs. Weather-wax, who accompanied defendant to the safe-deposit box, did not testify in this case. The executrix of the estate of Eva L. Pratt, however, testified that she was present when defendant brought this money back to Mrs. Pratt and that Mrs. Pratt gave the money to defendant Marion Taylor to hide it until it could be placed in another safe-deposit box to which the brother would not have access. This contention was denied by defendant, who claimed that decedent gave her the money after she brought it from the safe-deposit box as money that belonged to the defendant.
Shortly after this safe-deposit-box episode, Mrs. Pratt, on July 29, 1950, made a will. In this will she placed in trust all of her property with instructions to pay all income from said trust to defendant at convenient times, and gave the defendant the right to use any part or all of said trust estate to assure for herself a comfortable life in every respect, including payment of all medical, hospital and nursing care, and any other expense as her needs might require. The attorney who drew up this will did not testify, but a friend of the deceased, with whom she had done banking business, stated he was present and that Mrs. Pratt stated she wanted the will to give Marion Taylor access to the $4,180 as long as the defendant lived.
On September 15, 1950 (8 days before decedent’s death), decedent prepared another will. In this will she referred to the fact that defendant was beneficiary on a New York Life Insurance Company policy and that she wanted it understood with defendant that the proceeds from the policy be used first to pay all deceased’s debts and funeral expenses and that the balance be retained to provide defendant with, a suitable funeral. Decedent then in this will provided :
“I give, devise and bequeath unto my sister, Marion Taylor, of Grand Rapids, Michigan, such moneys as she has previously received from me.”
Decedent then provided that the defendant should have a life estate in all the real property in which she had an interest on Benjamin avenue, Grand Rapids, Michigan. This Benjamin avenue property was the property where Mrs. Pratt was residing at the time of her death, and is referred to as “the old homestead” in this record.
The will then proceeded to give and devise unto deceased’s daughter the remainder of the estate in fee simple.
On October 30, 1950, Eva Pratt’s will of September 15, 1950, was admitted to probate and appellant, Beulah Vander Honing, was named as executrix of the estate.
On February 1, 1951, appellant filed a petition for discovery, stating that she was informed and believed that the defendant had concealed certain assets belonging to the estate and more particularly furniture, goods and chattels located in the home in which Mrs. Pratt resided at the time of death, and cash in a safe-deposit box in the amount of $4,180.
On October 1, 1951, plaintiff, executrix of the estate, and appellant herein, began the present suit for accounting. The trial court entered a decree dismissing the suit, finding that the $4,180 had been given to Marion Taylor by Eva Pratt before her death, and that the items of personal property were not identified sufficiently to justify a decree awarding them to the estate; and, further that 15 years’ possession of the family furniture by the defendant vitiated Eva Pratt’s claim to a 1/3 interest in the property.
Question 1: Did the defendant have the burden of proof in regard to her claim that the $4,180 was a gift from her uncle and deceased sister?
Appellant contends the trial court erred in holding that the burden of proof was on the plaintiff to show that the $4,180 was not a gift. Appellant cites the case of Grund v. First National Bank of Petoskey, 209 Mich 613. That case involved a suit in accounting where plaintiff claimed that defendant owed plaintiff money because of contractual arrangements. The Court commenting upon the burden of proof stated (p 615):
“Where a trustee is called upon in a court of equity to account for the funds received by bim as trustee, and the trusteeship is admitted or established, the duty rests upon the trustee to so account, and the burden of proof is upon him to establish the correctness of the account; but where a plaintiff claims the trust relation exists, and this is denied by the defendant, or the plaintiff claims a certain contract was entered into which, if entered into, would establish a trust relation, and the defendant denies such contract was entered into but insists that another contract was entered into, one which did not create the trust relation, in such case the burden is upon the plaintiff to establish the trust relation, or the contract creating such trust relation, before he casts upon the defendant the burden of an accounting. In other words, plaintiff cannot by claiming that the trust relation exists cast the burden of proof upon the defendant.”
In the present case the trusteeship was not admitted. Defendant throughout the trial claimed that her uncle and decedent both recognized the fact that she was to receive the money from the sale of the uncle’s property, and that she received said money as a gift. The court did not err in holding that the burden of proof was not upon defendant.
Question 2: Did the plaintiff establish by a preponderance of the evidence that the $4,180 was not a gift to defendant?
The only proof introduced by plaintiff in regard to the $4,180 was the testimony of plaintiff-executrix that she was present when Mrs. Weatherwax and defendant brought the money from the safe-deposit box to Mrs. Pratt; that there was $4,180 in an envelope which was counted in her presence and in the presence of Mrs. Pratt, and that she heard Mrs. Pratt tell defendant “she better get that money back down into another safe-deposit box, one, that would be one that Mr. Taylor wouldn’t know about, and Marion said she would take it upstairs and hide it.”
Plaintiff also called to the stand a case worker for the local welfare department, who testified that when she questioned defendant on February 6, 1951 (approximately 6 months after the money was taken out of the safe-deposit box by defendant), as to what assets she had received from decedent’s estate, defendant stated that she had an interest in the property where she resided and certain personal effects in the house; that she had spent $365 for her sister’s funeral and had only $635 remaining from $1,000 she received from the insurance policy, and that she had to keep this amount intact for funeral expenses for her brother and herself under the terms of decedent’s will.
Luther Cleaves, the uncle of deceased, defendant, and their brother, Clarence Taylor, on September 5, 1947, deeded property to decedent for $3,000, reserving a life estate for himself. After the uncle’s death, Eva Pratt, on May 9, 1949, sold this property for $5,500. Clarence Taylor testified that in September, 1947, when his sister, Eva Pratt, returned from the bank after receiving the deed from her uncle, “she said she wanted the money to go to Marion Taylor (defendant).”
Augusta Westveer testified that when Eva Pratt came back from the bank after receiving the deed to the property she told her:
“ ‘Mr. Cleaves made me promise I was going to give Marion this money. He said he wouldn’t sign the deed until I promised him,’ and she said I want Marion to have that money.”
Defendant’s other witness, Felix Latzek, banker, friend and business adviser of deceased, testified that he had a conversation with Eva Pratt shortly before her death about a sum of money, the exact amount of which he couldn’t remember, but he knew it was over $4,000, and that Mrs. Pratt told him “she wanted to see that Miss Taylor had access to it, she would have it, she needed it, use it.”
Defendant testified at the probate hearing and at the hearing in the circuit court.
At the probate hearing she testified she took the money from the safe-deposit box and claimed it was hers because she had taken care of her uncle, who gave it to her and that she had put the money in the safe-deposit box.
This statement was later contradicted when defendant testified that the deed was given to her sister in trust for her rather than placing the deed in her name so that the old-age assistance grants would not be jeopardized, and that after the sale of the property her sister put the money in the safe-deposit box.
At the circuit court trial she testified the $4,180 was given to her by her sister before her death. She admitted receiving old-age assistance after Eva’s death. She again stated the money belonged to her because of her care of the uncle.
Appellant calls to this Court’s attention the fact that the Supreme Court hears equity cases de novo. However, this does not mean that we do not give consideration to the findings of the trial judge. In Diel v. Diel, 298 Mich 127; and Grund v. First National Bank of Petoskey, supra, this Court commented upon the fact that we give due weight to ■the findings of the trial judge because he sees the witnesses, notes their appearance on the stand and, therefore, his conclusions are helpful to this Court, and that very clear evidence must appear in the record to justify disturbance of the trial court’s findings of fact.
We do not agree with appellant that she established by a preponderance of the evidence that the $4,180 was not a gift to the defendant, or that the record clearly establishes the trial court’s findings were erroneous. The record does show conflicting statements of defendant, but it must bo kept in mind that she was 76 years of age. Credible witnesses establish the fact that it was the intention of the deceased to make this $4,180 accessible for use by defendant. The 2 wills, above referred to, also establish such an intention.
Question 3: Bid the trial court err in holding that the plaintiff was not entitled to an accounting for the personal property shown to have come into defendant’s possession¶
The testimony of the defendant and her brother establishes that the defendant held personal property belonging to deceased and their testimony sufficiently identified the property so held. Besides the property that belonged to Eva Pratt, the record discloses that a substantial portion of the furniture in the homestead where defendant lived and where Eva Pratt died, belonged, in their lifetime, to the father and mother of Eva Pratt, defendant, and their brother, Clarence Taylor.
In his opinion the trial court commented upon the fact that evidence disclosed that Eva Pratt made no claim to any of this furniture during her lifetime and because more than 15 years bad elapsed since tbe death of tbe parents it would seem futile to make a claim where tbe heir in ber lifetime never made any claim of ownership.
We cannot agree with tbe court in tbis conclusion, and tbis case will be remanded to tbe circuit court for tbe purpose of having an accounting in regard to tbe personal property.
Over 15 years have elapsed since tbe death of tbe parents, and while there has not been administration of tbe estates, tbe record does not disclose that there are any claims against tbe estates and, therefore, under tbe decision of Powell v. Pennock, 181 Mich 588, tbe circuit court as a court of equity can call for an accounting and adjustment between tbe heirs as regards to tbe rights of tbe personal property.
Question 4: Was the defendant estopped from claiming the $4,180 ivas a gift from decedent because of her statements to the case worker for the welfare department?
Appellant cites several cases in regards to estoppel, but in each instance tbe fraudulent statement was made by one of tbe parties to tbe suit to tbe other party. The statement complained of as fraudulent in this case was not made to a party to tbe suit and, therefore, defendant was not estopped from claiming tbe $4,180 as a gift.
Affirmed in part and remanded. No costs, neither party having prevailed.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred. | [
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Reid, J.
Plaintiff Arnold Pardeike sues Margaret R. Fargo, individually, in chancery for specific performance of an alleged oral agreement by defendant Margaret R. Fargo for the sale to plaintiff of a 100-acre farm in Sumpter township, Wayne county, Michigan, and also joined as defendant, said Margaret R. Fargo as administratrix of the estate of her deceased husband Ernest S. Fargo, who owned the said farm at the time of his death. From "a decree for plaintiff, defendant individually, and as administratrix of the estate of her deceased husband, appeals, claiming that no such agreement had been entered into. Defendant’s decedent, Ernest S. Fargo, died April 17, 1948, leaving defendant Margaret his widow, and 3 children. The youngest was 2 months old and 1 child 3 years and 1 under 5.
The decedent had owned the farm in question since 1937, the title being in decedent alone.
The mother of defendant, who died in January, 1948, was the owner of a 60-aere farm located near the farm in question. Defendant was also appointed administratrix of her mother’s estate. Her half brother, then living in South America, came to this country in 1951 on a brief visit and desired their mother’s farm to be sold so that he could get his share. Neither defendant’s mother nor her husband, decedent-Ernest S. Fargo, left any will.
In the summer of 1951, the mother’s 60-acre farm was sold by defendant and she paid her brother his share. Defendant testified that before that sale, and during defendant’s brother’s stay in 1951, she thought of plaintiff Pardeike as being a possible buyer of the 60 acres, so she had her brother go with her and offer to sell the two farms to plaintiff Pardeike and his father. Plaintiff’s father died after negotiations for purchase of the 100-acre farm were broken off.
Defendant testified that her half brother was anxious to get a quick sale for all that he was interested in, and that she did not think it ought to be sold for less than $15,000; that it was her brother that suggested to Pardeike, Sr., that he put in a bid at $10,000.
Plaintiff Pardeike claims that defendant represented to him that she owned the farm in question and claims that defendant came to an oral agreement with plaintiff to sell the farm to plaintiff for $10,000, Plaintiff further claims that he offered to defendant $1,000 as a down payment on the oral contract, and that defendant instructed plaintiff and his father to take a down payment of $1,000 to the office of her attorney, Mr. Riggs; that plaintiff accordingly left the $1,000 in the office of Mr. Riggs with Mr. Riggs’' clerk. Neither Mr. Riggs nor defendant was in the-office of Riggs when this payment was left with Mr, Riggs’ clerk. Plaintiff claims that later defendant upon different occasions told plaintiff that the farm was his, or to be his.
Plaintiff knew that Mr. Fargo had died and that the property had been rented to the tenants before Mr. Fargo’s death. Pardeike, Sr., the father of plaintiff, owned a farm that was near to the farm in question and had been a mail carrier serving in that locality for several years. Plaintiff refers to his father’s residence as “home” during the negotiations for sale of the farm in question. Plaintiff admits that Mrs. Fargo said something to him about the authority to sell but he claims that it was á license for her to operate as a real-estate broker instead of a license by the probate court to sell this 100-acre farm.
Pláintiff went ahead on his own initiative and expended some moneys on the property, the farm in question, paid an insurance premium of $11.55 on the building, and put some repairs on the roof of the barn. Plaintiff claims he purchased some steel roofing but it was never brought to the farm, and also, that he put in a crop in a field. Defendant, however, testified that she knew of none of these things until after they had been done. It is certain from the testimony that the tenants and plaintiff Pardeike got into an altercation over some of these matters, when the tenants discovered what plaintiff Pardeike was doing.
Defendant Margaret ft. Fargo contemplated going back from the residence of the parties on Outer Drive in Detroit to live on the 100-aere farm.in question where she and her husband had lived before renting it to tenants and before moving to the ■Outer Drive residence. Defendant had done nearly all the work on the farm herself while they were living on the farm. Her husband, the deceased, had worked as a mechanic and after his death she had very little income. She testified she wanted more than $10,000 and that she thought she should have $15,000 if she sold but was uncertain whether it was ■desirable for her to sell.
In view of all the circumstances shown in this case, it is decidedly more probable that, as she testified, defendant told plaintiff that she would need approval •of the probate court to sell her husband’s farm than that, as testified by him, she told plaintiff a falsehood that the farm was her own property. It would have been easy for the neighbor, the plaintiff, to have found out the truth that the farm had been for some 3 or 4 years in probate court listed and recognized as solely owned by the estate and that defendant was administratrix of the estate and not the owner, except as to her third interest; so that in all human probability she would have realized that she would be detected if she falsified about the ownership. If defendant had been so eager to sell to plaintiff for $10,000 as plaintiff asserts, she would speedily have gone about the matters necessary to the closing of the deal. For over a year the sum of $1,000 remained in the hands of attorney Riggs for her, which sum, as she testified, was part of a “bid.”
We find that the payment of $1,000 down was on an offer to purchase and not part payment on an oral contract of purchase, as claimed by plaintiff.
The trial court by its decree determined that plaintiff was entitled to specific performance of an oral agreement of purchase by plaintiff and decreed that defendant transfer to him by proper deed of conveyance, individually and as administratrix, “under the statutes in such case made and provided,” the property involved in this lawsuit, and vest in plaintiff a good and merchantable title.
Ás administratrix, defendant could not make a valid agreement to sell lands of the estate without license issued by the probate court complying with the statutory probate court proceedings which includes consideration shown by appraisers to be fair to the estate; and even as administratrix she would be bound to accept a higher offer if one were made.
Upon the death of the owner of real estate, title passes to and vests in the heirs, not to the personal representatives. Windoes v. Colwell, 247 Mich 372. See, also, Webber v. Detroit Fidelity & Surety Co., 263 Mich 144; Burnham v. Kelley, 299 Mich 452 (syllabus 11).
For proceedings as to sale under probate court jurisdiction, see CL 1948, § 709.2 et seq. (Stat Ann 1943 Rev and Stat Ann 1953 Cum Supp § 27.3178 [462] et seq).
The trial court disregarded the fact that its decree was unjust to the interests of the children, the 3 minor heirs too young to protect their own interests and for whom no guardian ad litem had been appointed.
Upon the attorney Riggs being informed that plaintiff Pardeike considered the $1,000 payment as a payment on an oral contract for the purchase of the premises, as property owned by defendant, he (attorney Riggs) refunded to plaintiff the $1,000 payment. Proceedings were then taken by the. administratrix defendant and under the direction of attorney Riggs in probate court for license to sell. A former license had been ordered by probate court in 1948 to sell for $10,000, but defendant administratrix did not file the required bond and that order for license never became effective. In the proceeding later taken June 17, 1952, to obtain license to sell the farm, the appraisers in probate court set the value at $15,000 and the license to sell was issued in that amount. In fact, an offer of more than $16,-000 was filed with the probate court during the pendency of this lawsuit. The letter of attorney Riggs to plaintiff further stated that if defendant desired to purchase the premises it would he necessary to meet the amount stipulated in the license to sell.
We are convinced that no contract for the sale of the premises, either by defendant individually or as administratrix, to plaintiff ever existed.
The decree appealed from is reversed. A decree will be entered in this Court, finding that the plain tiff is not entitled to any relief, and decreeing the dismissal of the suit. Costs to defendant.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred. | [
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Carr, C. J.
Plaintiff, as administrator of the estate of Fannie B. Drake, deceased, brought this suit in circuit court to obtain injunctive relief, an .-accounting’, and the cancellation of certain conveyances of real property. Mrs. Drake died on September 29, 1952, at the age of 84. Her husband ■predeceased her, passing away in November, 1949. .For a few weeks following his death she lived alone in the home that the parties had occupied. Attempts to procure someone to live with her and take care of her physical needs did not at first meet with success. Finally, however, she arranged with defendants to take her into their home, furnish her board and room, and render to her such care as she might need.
The parties began to live together on January 6, 1950. At that time Mrs. Drake was the owner of about 29-1/2 acres of land, on which her home was situated. After a short period in defendants’ home she resumed her residence there, defendants living with her. She entered into a written, contract with them for her care, it being agreed between the parties at the time that the home and the 5 acres of land on which it was located would be conveyed to them. A deed of such property was executed on September 22, 1950.
In May, 1951, Mrs. Drake executed to defendants a land contract for the sale to them of an additional 10 acres of land for a stated consideration, of $9,600. Annual payments were provided for, to be made until the death of Mrs. Drake. A deed of said property was executed and deposited in escrow, \vitli the' understanding that it would be delivered to defendants, and the contract considered fully paid, on her death. On October 5th, following, an additional parcel, comprising approximately 10 acres, was made, through mesne conveyances, the property of Mrs. Drake and defendant Lucile Chamberlin as joint tenants. Like action was taken with reference to 5 acres which had previously been included in the land contract executed to defendants on May 1, 1951. It was the claim of the defendants that it was the intention of the parties that the conveyance should cover the remaining land of Mrs. Drake and that the description was erroneous. Pursuant to such claim they filed a cross bill in the suit asking reformation of the deeds.
It also appears that Mrs. Drake, in the spring or eaiiy summer of 1951, changed her bank account from her own name to the names of herself and defendant Lucile Chamberlin jointly, payable to either or survivor, and that she also signed an agreement in writing to the effect that any moneys received from the State highway department for taking her property in the location of a highway should, if not paid during her lifetime, go directly to defendants. It also appears that she gave to defendants, or to Mrs. Chamberlin, some items of personal property.
On the trial of the case in circuit court it was the claim of the plaintiff that at the time of the transactions, above enumerated, Mrs. Drake was mentally incompetent to enter into business transactions of the character involved, and that defendants exercised undue influence over her in obtaining the conveyances and agreements in question. After listening to the proofs of the parties, the trial judge came to the conclusion that plaintiff had not established his right to the relief sought and entered a decree dismissing the bill of complaint. The- judge further determined that a mutual mistake had been made in the description of 5 acres of land in the attempted conveyances thereof and that defendants and cross plaintiffs were entitled to have the reformation sought. Prom the decree entered, plaintiff has appealed.
The proofs taken in the circuit court indicate conclusively that Mrs. Drake was very well satisfied with the care and attention given to her by defendants and expressed to others her appreciation of their kindness. It further appears that her only son had died some years previously, leaving .a daughter, and that his widow had remarried. This daughter, who was the sole heir of Mrs. Drake, was approximately 16 years of age at the time of the latter’s death aud had resided in an eastern State for a number of years. There is testimony of statements made by Mrs. Drake indicating dislike for her former daughter-in-law, and a feeling on her part that she had been neglected by her relatives and friends. It may not be said on this record that there was no basis for such feeling. It is a matter of inference that this situation caused her to appreciate the care and attention given her by defendants to a greater extent than she otherwise would have done. Such attitude on her part may not be regarded as indicating a lack of mental capacity to transact business affairs.'
Obviously Mrs. Drake felt kindly toward defendants and desired to assist them. She had the right to dispose of her property as she saw fit, assuming that she was competent to do so and was not subjected to undue influences. The primary question is whether she had sufficient mental capacity to understand the nature of the transactions respecting her property, to know the value and extent of such property, to reach a logical conclusion as to how she wished to dispose of it, and to keep such facts in mind for a sufficient length of time to permit the necessary planning and effectuating of her wishes without prompting and interference from others. Hayman v. Wakeham, 133 Mich 363; Barrett v. Swisher, 324 Mich 638; Knight v. Behringer, 329 Mich 24; Wroblewski v. Wroblewski, 329 Mich 61.
Witnesses produced by plaintiff on the trial testified that, following the death of her husband, Mrs. Drake was depressed, that at times she seemed somewhat absent-minded, that she did not display the friendly spirit toward certain neighbors that she had shown in prior years, and that she was sub ject to physical infirmities usually incident to one -of her age. On behalf of defendants, 3 physicians who had attended Mrs. Drake at different times gave testimony to the effect that she was mentally alert and was, in the opinion of each, fully competent to engage in business transactions of the character involved in the case. This testimony was corroborated by lay witnesses who had come in contact with Mrs. Drake and had opportunities to observe her conduct. Without discussing the proofs in detail, we think the record made before him fully justified the finding of the trial judge that Mrs. Drake was not, on the occasions in question, mentally incompetent to determine for herself what she wished to do with her property and to understand fully the nature of the transactions in which she engaged.
On the issue of mental competency the burden ■of proof was on the plaintiff. Shea v. Siller, 262 Mich 279; Chrysler Corporation v. Nohmer, 319 Mich 153. On the record before us it must be said that plaintiff did not sustain such burden. Decisions cited by appellant, including Hemphill v. Holford, 88 Mich 293; and Sprenger v. Sprenger, 298 Mich 551, 561, in which this Court held on the basis of the facts appearing from the record that mental incompetency had been shown, are not in point in view of the proofs in the instant case.
There is no testimony in the record from which an inference may properly be drawn that defendants exercised undue influence over Mrs. Drake, as a result of which she executed the conveyances in question. There is no showing that the transactions between the parties involving property were not the result of Mrs. Drake’s voluntary acts, consummated pursuant to her plans and her wishes. Mere opportunity to exert undue influence is not sufficient. In re Alvord’s Estate, 258 Mich 497; In re Estate of Burwitz, 272 Mich 16; Chrysler Corporation v. Nohmer, supra.
Counsel for plaintiff suggests in their brief that the relationship between defendants and Mrs. Drake was analogous to that of guardian and ward and, therefore, fiduciary in character. Based on such premise it is argued, in effect, that the burden of proof rested on defendants to establish affirmatively that iio undue influence was, in fact, exerted by them. The following statement made in the-opinion of this Court in In re Jennings’ Estate, 335 Mich 241, 244, is applicable here:
“We think the term should be held to mean what the word ‘fiduciary’ implies and that the relationship exists only when there is a reposing of faith, confidence and trust and the placing of reliance by one upon the judgment and advice of another. No-such situation was established here.”
The record in the case at bar contains no- proof that Mrs. Drake relied on the advice and judgment of defendants in business matters. Apparently she had confidence in her own judgment and in her-ability to handle her affairs. The transactions in question were made in such form as to insure that she would retain sufficient property interests to render certain her support and maintenance as-long as she might live. Unquestionably she found defendants congenial and she appreciated the services that they furnished to her, but such situation did not render the relationship a fiduciary one. In consequence we are not confronted with the rebuttable presumption arising in cases where such-relationship is affirmatively shown. The facts in this respect are not analogous to those involved, in Wroblewski v. Wroblewski, supra. The fact that the parties in this case occupied the same house for a period of approximately 2 years and 9 months, does not justify an inference that there was a fiduciary relationship, or that there was undue influence exerted against Mrs. Drake. As before stated, mere opportunity is not sufficient. In re Cottrell’s Estate, 235 Mich 627, 631; Knight v. Behringer, supra.
The conclusions indicated with reference to the real property transactions apply also to the gifts of personal property and to the joint bank account. What Mrs. Drake did in these matters was consistent with her general purpose, evidenced by her conduct, to assist. defendants rather than to leave her property to others. Insofar as the bank account is concerned, it must be said that the statutory presumption of ownership in the survivor was not overcome by plaintiff. Jakobowski v. Bacalia, 314 Mich 678.
Appellant further contends that the trial court Avas in error in granting relief to defendants on their cross bill. The power of a court of equity to grant relief by way of reformation of a conveyance of property, or other instrument in writing, on the ground of mutual mistake is not open to question. Gustin v. McKay, 196 Mich 131; Jaerling v. Longsdorf, 254 Mich 558; Maki v. Karvonen, 322 Mich 696. The issue presented here is one of fact. It is claimed that there was insufficient proof to-show a mutual mistake in the drawing of the deeds-describing the 5 acres of land above mentioned. It is a fair inference, however, that the parties did not intend to describe a parcel embraced within the description contained in the conveyance previously executed. It is apparent that Mrs. Drake had in mind disposing of all her real estate by instruments of conveyance effective either during her lifetime or at her death. The conclusion is fully justified that the scrivener in preparing the deed made a mistake in the location of the 5-acre parcel, and that such mistake was not discovered until later. The evidence in the case supports the factual finding on which the granting of relief to cross plaintiff was based.
We find that the trial judge correctly disposed of the issues in the case and -the decree entered is afJ firmed. Defendants may have costs.
Btjtzel, Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred.
See CL 1948, § 487.703 (Stat Ann 1943 Rev § 23.303).—Reporter. | [
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Dethmers, J.
Defendant appeals from a decree ■granting plaintiff a divorce and property settlement.
The hill of complaint alleged many instances, at specific times and places, of harsh and insulting language directed to plaintiff by defendant, of his calling her vile and obscene names privately and in the presence of others, of his refusal to associate with her socially, of his association with other women, and one of his threatening her life. These were not mere statements of conclusions but averments of fact, which, if proved, would establish a long continued course of extreme and repeated cruelty and grounds for divorce. Defendant was duly apprised thereby of what it was against which he was called upon to defend himself. Accordingly, the court did not err in denying defendant’s motion, before trial, to dismiss the hill for failure to state a cause of action.
Defendant contends that plaintiff did not make •out a case for divorce. She testified that during the last 18 years they lived together defendant unjustly accused her at least 50 times of improper association with other men, that he often called her vile and ■obscene names impugning her chastity, that he used rough and vile language toward her in the presence of others, accused her of dishonesty, refused to accompany her on social occasions, embarrassed her in the presence of others, associated with other women under circumstances which appeared questionable at best, and, finally threatened to shoot her, after which she left the home and they separated permanently. She gave the times and places of some of the offenses. That would admit proof of others, even though the dates and places thereof were not fixed. Eistedt v. Eistedt, 187 Mich 371. Some of her testimony was corroborated, some was not, and much of it was denied by defendant. Proofs of grounds for divorce are not necessarily insufficient because, in many respects, they rest solely on the uncorroborated testimony of plaintiff. Brookhouse v. Brookhouse, 286 Mich 151. The trial court, which saw and heard the witnesses, believed plaintiff’s testimony concerning grounds for divorce and determined that they had been established. Examination of the entire record does not convince us that, had we occupied the position of the trial judge, we would have concluded differently; and under such circumstances we do not reverse the trial court’s determination. Chubb v. Chubb, 297 Mich 501; Gorton v. Gorton, 316 Mich 375; Schmiege v. Schmiege, 336 Mich 107. That defendant’s course of conduct, as described by plaintiff, extending over a period of years, constituted extreme cruelty and grounds for divorce without proof of personal violence is beyond question. McCue v. McCue, 191 Mich 1; Goodman v. Goodman, 26 Mich 417; Warner v. Warner, 54 Mich 492; Begrow v. Begrow, 162 Mich 349 (139 Am St Rep 562); Mark v. Mark, 319 Mich 258.
Defendant says that plaintiff did not come into court with clean hands inasmuch as the proofs show that during the 4 years from date of separation until trial, as the trial court found, “Each party sought the company of the opposite sex.” The court found' further, however, that, while such conduct might be open to criticism, no misconduct was proved which would justify the court in either granting or denying either party a divorce because of what occurred after the separation. "We are in accord with that view as relates to plaintiff’s conduct. We think there is considerable doubt that defendant’s conduct since the separation is deserving of an equally charitable appraisal.
Defendant urges condonation in defense. Plaintiff testified that for 18 years, in the face of defendant’s continuous and repeated misconduct in the respects above noted, she tried to forget those things and to make a success of the marriage; that after defendant’s admitted misconduct with another woman he had promised to behave himself and to have no more to do with other women, but that this promise was not kept.
“Numerous but unsuccessful attempts on the part •of a wife to live peaceably with her husband, who treated her with extreme cruelty, did not condone the offense so as to deprive her of her right to a divorce.” Austin v. Austin, 172 Mich 620 (syllabus).
“A claim of condonation in defense of a suit for -divorce on the ground of extreme cruelty is not made •effectual merely because no new misconduct constituting a cause for divorce is shown to have occurred subsequent to the alleged condonation, but it is necessary that the conditions upon which the con-donation was granted should have been complied with by the offending party.” Creech v. Creech, 126 Mich 267 (syllabus).
“It is also contended by appellant that appellee ■condoned her acts of extreme and repeated cruelty towards him by continuing to live and cohabit with her. Condonation, implying forgiveness for offensive conduct, is conditional on the nonrepetition of such conduct. In the case at bar, the acts of extreme and repeated cruelty, on the basis of which relief was granted by the trial court to appellee, were continuous during the period of time that the parties lived and cohabited together. The fact that appellee continued to live with appellant in the marital relation, apparently in the hope that the parties might avoid a final separation, was not a bar to the grant ing of relief to him.” Bohlka v. Bolhka, 318 Mich 468, 473.
See, also, Tackaberry v. Tackaberry, 101 Mich 102, and Durham v. Durham, 331 Mich 668. Under the holdings of these cases the record in this case does not support a defense of condonation.
Finally, defendant complains of the property settlement. The court determined that the net worth of the property of parties was $230,204.75. Defendant does not challenge that determination. The court held that because the parties started married life with little or nothing, no children were born to them, and during 25 years of life together both worked, first for wages for others and then in their own business enterprises, and both had contributed to building up their fortune, therefore an equal division should be made. In this we think the court was correct. Although the wife drew wages from their businesses, as did the husband, she spent it for her clothes and household necessities which he was bound to furnish. Defendant insists that $35,000 which plaintiff took just before their separation should be considered in making the division. She used it during the 4 years of separation for living on a scale not out of harmony with that to which the parties had been accustomed. During that same time defendant drew a considerably larger sum from the business of the parties for his own living. Consequently, no injustice was done defendant in this respect, inasmuch as the value of the properties to be divided was reckoned as of the time of trial after the mentioned withdrawals had been made by both parties. Defendant claims hardship in the provision of the decree that the whole sum of $115,102.37 to be paid by him was made payable in three instalments, $20,000 upon entry of decree, % of the balance within 90 days and the remaining half within 6 months after decree. In this connection he points to his testimony that at the time of trial, April, 1954, he was under necessity of making vehicle replacements in his beer business which would cost $38,000 and to increase his inventory by $70,000. At trial he admitted possession of a $30,000 cash item. The assets of the parties included real estate valued at $135,500, the beer business valued at $54,929.75, and other personal property and cash valued at $39,775, all of which went to defendant, subject to his making the mentioned payments to plaintiff at the times specified. Since the trial defendant has enjoyed all the income from the business for a period now over l-% years. The record discloses that that income for 1953 was over $88,000 before taxes, or over $40,000 after payment of income tax. We do not consider that the requirements of the decree would work an undue hardship on defendant.
A decree may enter here in all respects like the decree below, except that the times limited for payment under the property settlement shall run from the date of entry of decree here and that the requirement that defendant pay plaintiff $100 per week alimony, as heretofore ordered by this Court, shall continue in effect until payment of the full amount of the property settlement; and plaintiff previously having been allowed $300 costs of appeal by this Court, defendant shall pay her, within 60 days from entry of decree here, an additional $200 for costs of appeal and $500 for attorney fees.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Kelly, JJ., concurred. | [
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Sharpe, J.
Defendant,. Chemical Products, Inc., appeals from the entry of 2 judgments against it by the circuit court of Wayne county following a trial by jury, one judgment being in the. amount of $3,750 and the other judgment in the amount of $1,500. The record shows that on December 30, 1949, plaintiff commenced an action in assumpsit on a promissory note executed by defendant corporation, the' $5,500 note being secured by a chattel mortgage on the corporate assets of defendant company. Plaintiff’s action is for an unpaid balance of $3,720 on the $5,500 note. On September 14, 1951, defendant company filed an answer to plaintiff’s declaration in which it denied the execution of the promissory note. Defendant company also filed affirmative defenses, by which it alleges that it obtained no consideration for the sum of $3,000 on the $5,500 promissory note; that said promissory note was obtained by fraud and . misrepresentation; that plaintiff is not the real party in interest; that the note as to $2,500 has been paid in full; that the balance of said note in the amount of $3,000 has been settled by an accord and satisfaction, and' that:
“Plaintiff’s husband, Michael C. Marian and Thomas "W. Halloran, president of defendant corporation, were equal half owners of a business known as Mnf-L-Cote Plastics Company, which company occupied space as a tenant in a building owned by Michael C. Marian, located at 1625 East Grand Boulevard, Detroit, Michigan, title of which said building stands in the name of plaintiff. That said Muf-L-Cote Plastics Company had ceased to function. That Michael C. Marian was negotiating a lease of said building with other parties and was anxious to get the assets of the defunct Muf-L-Cote Plastics Company out of said building and in storage at some other place without expense to him. That said assets consisted principally of raw materials that had little or no value at the time. * * #
“That in 1946, defendant Chemical Products, Inc., occupied factory premises at 4455 "Williams street in the city of Detroit under a lease, and Thomas W. Halloran as president of said corporation was then nego tiating to purchase said property and an adjacent piece of property in the immediate rear thereof located on Tillman street in the city of Detroit. That Michael C. Marian offered to lend said Thomas "W. Halloran the sum of $2,500 to aid the latter in making said purchase of said real estate, and said Thomas W. Halloran accepted said offer, and purchased said real estate in behalf of said defendant corporation, including said adjacent property.
“That upon completing said purchase, defendant corporation had additional available space, not immediately required for its operations. * * *
“That at the time said Michael C. Marian made said loan of $2,500, he started negotiating with Thomas W. Halloran for the latter to store the said assets of the defunct Muf-L-Cote Plastics Company in the premises of defendant corporation, under an arrangement whereby said Thomas W. Halloran would attempt to dispose of said assets as opportunity presented in the future, said parties to share the proceeds of any sales made, less expenses. That the parties estimated that under favorable conditions they might realize $3,000 net for said assets. That Thomas W. Halloran agreed to the arrangement, and the said personal property of Muf-L-Cote Plastics Company, of which Thomas W. Halloran owned 1/2 and Michael C. Marian the other half, were moved and stored in the premises of the defendant corporation.
“That shortly before September 19, 1946, said Michael C. Marian said to said Thomas W. Halloran that he felt that he should have security from defendant Chemical Products, Inc., for the said $2,500 loan, and that inasmuch as he was considering settling in California that he would like to have his prospective profits in the Muf-L-Cote assets included in the note to be secured by the mortgage. That Michael C. Marian stated that he wanted the deal set up in his wife’s name as was his custom on business transactions. Said Michael C. Marian stated to said Thomas ■W. Halloran that the $3,000 that he wanted included in the note, and that represented the prospective profits of both Thomas W. Halloran and himself should furthermore be set up in his wife’s name because the defendant Chemical Products, Inc., had nothing to do with the profit arrangement entered into between the said 2 individuals, and furthermore that it would be understood and agreed that the $3,000 in said note would merely be evidence of the prospective profits and not a binding obligation on the part of defendant Chemical Products, Inc. * * *
“Defendant alleges that said Thomas W. Halloran has been unable to dispose of any of the said personal property of said Muf-L-Cote Plastics Company, stored as aforesaid in the premises of defendant, and that no profits have been realized out of said personal property, and furthermore neither plaintiff or her husband Michael C. Marian has contributed anything to the storage expense of said personal property and refused to pay any storage expenses thereon.
“That defendant Chemical Products, Inc., received no consideration whatsoever for said $3,000 included in said note, exhibit A. * * *
“That said note, exhibit A, and the mortgage securing the same with respect to the item of $3,000 therein included, plus interest thereon, was obtained by fraud and misrepresentation on the part of plaintiff and her husband Michael C. Marian. * * *
“That said Thomas W. Halloran and said Michael C. Marian subsequently entered into an agreement whereby and pursuant to which said Michael C. Marian relinquished and abandoned his interest in said partnership personal property in consideration of Thomas W. Halloran undertaking to get rid of said personal property as junk, or to make other disposition thereof without any further expense to said Michael C. Marian, and it was agreed by and between Thomas W. Halloran and Michael C. Marian that on payment by defendant Chemical Products, Inc., of the last instalment payment of said loan of $2,500 plus interest, that said mortgage note and said chat tel mortgage would be marked paid and discharged. That said agreement was made and entered into subsequent to the institution of this suit, and in, to-wit, the early part of January, 1950. That pursuant to said agreement Thomas W. Halloran, in behalf of Chemical Products, Inc., made the final payment on the said loan of $2,500, in the sum of $200, plus interest of $8.33 on, to-wit January 31, 1950, and under date of January 31, 1950, wrote said Michael C. Marian the following letter:
“January 31, 1950
“‘Mr. M. C. Marian
300 Whitmore Drive
Detroit 3, Mich.
“ ‘Dear Mr. Marian:
“‘As arranged, we enclose herewith cheek in the amount of $224.09, which is in final payment of the -collateral note for $2,500, with interest in the amount -of $8.33, together with interest on the unsecured note for $378.32 in the amount of $15.76, making a total -of $224.09, as above.
“ ‘Yours very truly,
Chemical Products, Inc.,
Thos. W. Halloran, President
TWH-ge’ * * *
“Defendant says that plaintiff Catherine Marian does not now have and never has had any interest in said partnership assets or in said mortgage and note; that she was and is merely the nominee of Thomas W. Plalloran and Michael C. Marian to act in a trust capacity, and is not the real party in interest in this action. That Michael C. Marian is the real party in interest.”
On September 14,1952, Thomas W. Halloran, president of defendant company, filed an affidavit in the .above cause, the essential part of which contains the following:
“Deponent denies that said defendant, Chemical Products, Inc., executed and delivered said note, sued on in this action.
“Further deponent says that it was beyond the power and scope of said corporation to execute and deliver said note.
“Further deponent says that the said note, executed by officers of defendant corporation, was beyond the scope and authority of said officers to do so.”
On February 28, 1951, plaintiff filed her declaration in the circuit court of "Wayne county on a promissory note in the amount of $1,500 executed by defendant corporation. The declaration contained the following:
“That on the 19th day of September, 1946, at Detroit, Michigan, defendant, for value received, made and delivered to plaintiff its promissory note in writing, dated on that day, whereby it promised to pay to the order of plaintiff on March 19, 1949, the sum of $1,500 at the National Bank of Detroit, Main Office, 660 Woodward avenue, Detroit, Michigan, or at such other place within or without the State as the holder of said note might from time to time designate. A copy qf said note is hereto attached as plaintiff’s exhibit ‘A’, together with authorizing resolution.”
Defendant filed an answer to plaintiff’s declaration in which it denied the execution of the promissory note, and by way of affirmative defenses alleges that:
“Defendant corporation was in the business,, among others, of manufacturing rubber cement. Defendant corporation obtained an order from Nash Kelvinator Corporation for, to-wit, 40,000 gallons of rubber cement, prior to September 19,1946. * * *
“That Michael C. Marian urged and prevailed upon said Thomas W. Iialloran to use said reclaimed, rubber asset of Muf-L-Cote Plastics Company, after required processing, as a raw material in the manufacture by defendant of the rubber cement,- with which to fill the order received by defendant from Nash Kelvinator Corporation on the basis of a participation in the profits received from said order, and Michael C. Marian’s profits in said order, under said arrangement, was estimated at the sum of $1,500.
“That pursuant to said arrangement said Thomas W. Halloran arranged for the processing of said reclaimed rubber with a processing firm at a cost of 42 cents per gallon for the processed material, which material amounted to approximately 60 drums of 54 gallons each, and which charge was ultimately paid by defendant corporation, as said Michael C. Marian neglected and refused to pay his share thereof, being % of said cost. * * *
“That subsequent to September 19, 1946, it developed that the raw material manufactured out of said reclaimed rubber was not suitable for the manufacture of rubber cement. The said Nash Kelvinator Corporation refused to take delivery of said cement under said order placed by it, and the merchandise for the fulfillment of that order was turned back on defendant corporation, and the same is now in storage in defendant corporation’s premises. * * *
“That said note for $1,500 was given to plaintiff merely as evidence of a conditional participating profit interest in a prospective business deal on the part of plaintiff’s husband and said Thomas W. Halloran, and not as evidence of any fixed indebtedness ■owing by defendant corporation to plaintiff.
“That defendant corporation received no consideration whatsoever for said note, and in addition t'o that laid out % of the processing charges on the reclaimed rubber, for which Michael C. Marian was obligated to pay % in good faith, and said Michael C. Marian and his wife, the plaintiff, have neglected and now refuse to pay said % cost of said processing work.
“That defendant corporation was wholly unauthorized under the statutes and laws of the State of Michigan to execute an accommodation note without any consideration to it, and for the accommodation of Michael C. Marian and his wife, the plaintiff in this action, and that the giving of said note was an' tiltra vires act on the part of defendant corporation and wholly void. That Michael C. Marian and Cath-: •erine Marian, the plaintiff in this cause, stated andl represented to defendant corporation and to Thomas' "W. Halloran, in his individual capacity, and as president of defendant corporation, that said note would* be held by plaintiff merely as evidence of what Michael C. Marian had coming out of said deal, and* that the same would not be treated and used as an enforceable obligation of defendant corporation. That defendant corporation, Thomas W. Halloran. and Gladys Halloran, officers thereof, relied on said-statements and were deceived thereby, to the detri-ment of defendant corporation.”
Thomas W. Halloran, on September 14, 1951, filed .an affidavit in the above cause similar to the affidavit filed in the action on the $5,500 promissory note. The causes were combined for trial before a jury. During the progress of the trial, the trial judge denied defendant the right to introduce evidence of fraud or misrepresentation for the following reason .as stated by him:
“Well, the special defense of fraud is not so plead-*> *ed as to permit the introduction of any evidence -on that subject. You cannot plead fraud merely by saying fraud. That is all that the answer of the •defendant does. In order to plead fraud, you have got to plead the facts from the conclusion of — the .legal conclusions that fraud exists, flows; and there is nothing of that sort in Mr. Kahn’s pleadings.
“Therefore, his special defense of fraud in the inception of the notes is not in the case.”
However, the trial court permitted defendant company to introduce evidence in support of the allegations stated in its affirmative defenses. At the eon-clusion of all testimony the trial court instructed the .jury as follows:
“Now the defense rests upon a claimed agreement that was made between Mr. and Mrs. Marian and Mr. and Mrs. Halloran in August, 1946. The position of the defendant finally boils down to a statement that was made by Mr. Kahn during discussions back and forth in the absence of the jury. And that final concise statement reduces itself to this. This is a quotation, and it starts with a question that I asked:
“‘The Court: Well, I guess the most concise statement would be that it is the position of the defendant that these 4 documents in writing were inconsistent with the antecedent verbal agreements between the parties, and therefore the 4 documents in writing fall and the antecedent verbal agreements govern the situation.
“‘Mr. Kahn: That is correct.
“‘The Court: That is your position?
“‘Mr. Kahn: That is my position.’
“The position then is substantially to the effect that the written documents, wherever they come in conflict with the previous verbal agreement made 6 weeks before the documents were signed, are governed by the verbal agreement. Now in that connection it is a fair question for anyone considering-that positiomto ask: Well, if the verbal agreements were to govern, why did the Chemical Products Company sign the written agreements?’ And, I think that is a fair question for the members of the jury to bear in mind considering the issues in this case.
“I will say to you in general that I am leaving to-you the question as to whether there was an antecedent agreement of the nature that is claimed by this defendant corporation, or whether there was not any such antecedent agreement. If there was an antecedent agreement made as the defendant corporation, represented by Mr. Halloran and Mrs. Halloran, claims, — then that antecedent agreement, if you find that it has been proved by a fair preponderance of the evidence, would warrant you as members of the jury in bringing in a verdict in these 2 cases of no cause of action.
“Now, wliat was the antecedent agreement that is ■claimed to be supported by the testimony of those 2 witnesses ? I have had a great deal of difficulty in .ascertaining what the agreement is that the defendants claim was made. I have here some requests to charge prepared by the defendant, through Mr. Kahn. The first request to charge is:
“ ‘If you find from the evidence that the $5,500 note and the mortgage securing the same in the same amount were delivered pursuant to an agreement, to which Catherine Marian, plaintiff, was a party, that $3,000 in amount thereof would be ineffective as a binding and valid obligation of the ■defendant, Chemical Products, Inc., then your verdict will be no cause for action in favor of the defendant.’
“Now in connection with that request to charge, that is based upon the claim of the defendant, based on Mr. and Mrs. Halloran’s testimony, that in August -of 1946 it was verbally agreed between those parties that as to $3,000 the Chemical Products Company would not be held liable by Mrs. Marian. In accordance with that request, if you find affirmatively that that agreement was made, that would justify you in bringing in a verdict of no cause of action on your part of the case as to the $5,500 note.
“The next request to charge is different:
“ ‘If yon find from the evidence that the $5,500 note, and the mortgage securing the same, were delivered pursuant to an agreement to which Catherine Marian, plaintiff, was a party, that $3,000 in amount thereof would not be effective as a binding and valid obligation on the part of the defendant Chemical Products, Incorporated, except on the contingency that the resin materials of the partnership Muf-LCote Plastics Company would be sold by the defend.ant corporation, and you further find that said materials were not sold, then your verdict will be no cause for action in favor of the defendant.’
“That request is different from the first request. The first request is based on the claim that the agreement as to the $3,000 would not be effective at all under any circumstances. That is, under the first request to charge the agreement that is claimed was that under no circumstances would Mrs. Marian hold the Chemical Products Corporation on that $5,500 note. The second request is that the testimony of Mr. and Mrs. Halloran establishes that the agreement was that the $3,000 of the $5,500- note would not be binding upon the Chemical Products Company unless the materials turned over by the Muf-L-Cote Company under the bill of sale were sold; and if that contingency happened, then the Chemical Products-Company would be liable. So, the number 2 claim is that it is not an agreement to make the $3,000' totally uncollectible under any and all circumstances, but it is an agreement to make the $3,000 collectible' in the event that the material turned over was sold.. So the 2 claims are different and are inconsistent.
“The third request is:
“ ‘If you find from the evidence that the $1,500 note was delivered pursuant to an agreement, * # * that it would be ineffective as a binding and valid obligation on the part of the defendant, Chemical Products, * * * then with respect to this notej. your verdict will be no cause for action.’
“And that is based on the theory that the testimony of those 2 witnesses establishes affirmatively that there was an actual verbal agreement that Mrs. Marian would not collect the $1,500 note. That is, there was an absolute agreement that that note would not be collectible.
“The next request to charge is to this effect:
“ ‘If you find from the evidence that the $1,500' note was delivered pursuant to an agreement, to which * * * Catherine Marian was a party, that it would be ineffective as a binding * * * obligation * * * except on the contingency that the rubber materials of the partnership, Muf-L-Cote* Plastics Company would be sold by the defendant corporation, and you further find that said materials. were not sold, then your verdict will be no cause for .action in favor of the defendant.’
“That is based on the theory, not that the note was' not collectible under any circumstances whatever, but that the note would be collectible if the material was sold.
“So, that the third and fourth requests to charge are inconsistent in their statement. You are asked to find, on the same testimony by the same witnesses, that either one agreement was made or the other agreement was made, but the defendants do not bind themselves or take any definite position as to which ■one they actually want you to find. The only point of agreement among all those 4 requests is the request that the jury find a verdict of no cause of action, and in that point those requests are all consistent.
“The next request, number 5, is a request based upon the claim that the $1,500 note was an accommodation of the person to whom he gives the note, but on the distinct understanding that as between those parties the note is absolutely invalid, absolutely not binding. And, if the accommodation maker is compelled to pay the note to a subsequent good-faith purchaser of the note, then the accommodation maker can get back what he pays on his note from the one to whom he gives the note. That is a third position that the defendants claim is supported by the testimony of Mr. and Mrs. Plalloran; and I charge you as a matter of law that there is no evidence in the case whatever that would justify the jury in finding that the agreement was made. So, that agreement is not given to you for your consideration.”
The jury returned a verdict in each case in favor ■of plaintiff in the amount of $3,750 and $1,500, and judgments were entered thereon on November 4, 1953. Defendant filed motions for a new trial in each of the above cases. On December 23, 1953, the trial court entered orders denying the motions. On December 31, 1953, defendant filed notices of appeal in each case. Upon appeal defendant urges that the notes are not valid as to the unpaid balances, and that no liability exists as a result of their execution.
Defendant also urges that there was no consideration for the $3,000 portion of the $5,500 note; that said note to the extent of $3,000 was an accommodation instrument on the part of the defendant, and that there was no consideration for the $1,500 note.
It appears that in August, 1946, plaintiff and her husband, Michael C. Marian, and Thomas W. Halloran and wife, Gladys E. Halloran, verbally agreed that the assets of the Muf-L-Cote Plastics Company, a partnership composed of Michael C. Marian and Thomas W. Halloran, were to be transferred to the defendant corporation; that the defendant corporation would execute a note in the amount of $5,500 payable to plaintiff and secured by a chattel mortgage on the personal property of the corporation, and one unsecured note for $1,500. There is evidence that Michael Marian’s share of the partnership assets of Muf-L-Cote Plastics Company had an estimated value of $3,000. These assets consisted of a machine and certain resin materials. There is evidence that the partnership also had on hand approximately 25,000 pounds of crude rubber with an estimated value of $3,000,1/2 of which rightly belonged to Michael Marian. All assets were turned over to defendant corporation by a bill of sale executed by Michael C. Marian and Thomas W. Halloran. In our opinion the question of consideration for the promissory notes was a proper subject for consideration by the jury.
It is also urged that comments made by the trial judge in the presence of the jury were prejudicial to the defendant. We have carefully examined the record and conclude that the remarks made by the trial judge were justified under the facts shown in tliis ease. It is also urged that the trial court erred in holding that defendant could not avail itself of its affirmative defenses of fraud and in ruling out proofs in relation thereto. It appears that during the progress of the trial, the court made the following ruling:
“The Court: Well, the special defense of fraud is not so pleaded as to permit the introduction of any evidence on that subject. You cannot plead fraud merely by saying fraud. That is all that the answer of the defendant does. In order to plead fraud, you have got to plead the facts from the conclusion of— the legal conclusions that fraud exists, flows; and there is nothing of that sort in Mr. Kahn’s pleadings.
“Therefore, his special defense of fraud in the Inception of the notes is not in the case.”
However, the court at a later period during the trial permitted defendant to offer evidence of a prior verbal agreement claimed to have been made in August, 1946. We find no merit in this claim.
It is next urged that the trial court’s charge and instructions to the jury were misleading and confusing, and reflected his personal prejudice and biased. attitude, in that he intimated to the jury that defendant’s requests to charge were inconsistent without commenting upon the right of defendant to submit inconsistent defenses. It is to be noted that Thomas W. Halloran made an affidavit in each case denying that defendant company executed and delivered the promissory notes sued on in the above actions. In its affirmative defenses defendant admits the execution of the promissory notes, but claims that $3,000 of the $5,500 note and the $1,500 note were not to become obligations of the defendant unless and until certain assets of the Muf-L-Cote Plastics Company partnership were sold for a price sufficient to pay the so-called accommodation notes. In view of the pleadings and evidence introduced by defendant, the trial court was justified in commenting on the inconsistent claims of the defendant.. We have carefully examined the comments of the trial judge and do not find any reversible error in what was said by the trial court.
It is also urged that the trial court committed reversible error in its charge to the jury in stating facts or misstating facts which were not supported by the evidence, in that in his charge and instructions to the jury, the trial court made the statement that, “Chemical Products Company was hard up enough for money so that it was asking for a loan of $2,500 cash,” and also stated to the jury that the defendant went to the “trouble of having a financial statement prepared by a 'firm of accountants,” and “the papers were to be executed for the protection both of the Chemical Products Company and of Mr. Marian and Mr. Halloran.” The record shows that Thomas W. Halloran informed Michael Marian that he needed $2,500 to purchase some vacant property. The record also shows that defendant’s balance sheet as of July 31,1946, shows cash on hand in the amount of $210, with accounts payable of $4,816.01. Moreover, the financial statement was prepared by defendant’s accountant. It might have been more diplomatic for the trial court to have stated that defendant company was lacking in ready cash to supply the wants of its creditors, but under these circumstances we do not find that the trial court committed prejudicial error.
It is also urged that the trial court erred in its charge and instructions to the jury by placing before it issues that were not involved in the case, in that during the trial, the following occurred:
“The Court: Well, you were asking something about the reclaimed rubber. Now, as far as this case is concerned, the execution of that bill of sale put the legal title to that property in the Chemical Products Corporation, and it thereby immediately became subject to the terms of the chattel mortgage going from the Chemical Products Corporation to the plaintiff in this case.
“Mr. Káhn: We are setting up equitable defenses, —affirmative defenses against that, which we have a right to do under the practice in Michigan; and in these affirmative defenses, we say that the whole transaction, the bill of sale, the mortgage back, and $3,000, of the note, were made with the definite understanding and agreement they would (were) not to be effective and binding on this company.
“The Court: Well, as to that, Mr. Kahn, I do not think that is available as a defense to you anyway, because — that is, it is not available under inferences that can be drawn from the testimony that has been given by your witnesses in this case. If the testimony given by your witnesses is taken at full face-value in connection with the schedule and this financial statement connected with the chattel mortgage, then it is a legitimate conclusion that the whole-transaction undertaken as Mrs. Halloran testified for the protection of the Chemical Products Corporation might well have been a transaction with the illegal purpose of hindering, delaying and defrauding creditors, and the chattel mortgage recites that there were creditors of the Chemical Products-Corporation on September 19, 1946. * * '*
“Mr. Kahn: Tour Honor has raised the question of a fraudulent conveyance in the form of a chattel mortgage that creditors of Chemical Products Company might take advantage of. There is no creditor here. There is no issue like that in the case.
“The Court: That is true, and the statute of limitations has now run against all the creditors whose-claims were set up, were recited in the chattel mortgage, back in 1946.”
It is a rare occasion during the trial of a cause-that some evidence does not creep into the record or some statement made that is' not germane to the issues involved. In such occasions, it becomes the- duty of an appellate court to determine if the error is prejudicial to any of the parties involved. In the case at bar the record shows that shortly before the promissory notes were executed, defendant company had in cash the sum of $210, and accounts payable in the amount of $4,816.01, yet at the time of the execution of the promissory notes defendant gave plaintiff a chattel mortgage covering all of its property. Such an act on the part of defendant did not enhance the position of its creditors. Undoubtedly the trial court had these facts in mind when he made the statements above quoted. It is true that the position of defendant’s creditors was not an issue in the cause, but in our opinion the statement made does not arise to the dignity of a prejudicial error. In our examination of the record we are convinced that defendant had a fair trial.
The judgments are affirmed, with costs to plaintiff.
Dethmers, C. J., and Smith, Reid, Boyles, Kelly, Carr, and Black, JJ., concurred. | [
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Sharpe, J.
Upon leave being granted, defendants
appeal from an award of the workmen’s compensation commission in which it was determined that plaintiff is entitled to compensation at the rate of :$18.67 a week from January 16,1951, until the further order of the commission. The essential facts are not in dispute. Plaintiff was employed by defendant company. Her job was to feed clothes into a mangle and fold them when they came out. Plaintiff and her family lived upstairs over the laundry at the time of her injury.
Prior to plaintiff’s injury, a contract was negotiated by the union representing the laundry employees providing for a rest period of 10 minutes ■each morning and afternoon, during which time employees were permitted to leave the laundry for a so-called coffee break. When the coffee-break period was arrived at a whistle would blow and the ■employees could go out for coffee or minister to his or her own personal wants. No deduction of wage was made during this period. On the day in question plaintiff began work at 8 a.m., and worked until the morning rest period commencing at 9:20 a.m. Plaintiff and other employees went to a nearby restaurant where plaintiff had coffee. On leaving the laundry, plaintiff noticed some ice on the step at the front door of the laundry. The step protruded about 2-1/2 feet into the public sidewalk. Upon return from the restaurant, and on ascending the .step outside the front door of the laundry, plaintiff slipped and injured her left wrist. In an opinion the commission held:
“It is our opinion that plaintiff sustained an accidental injury while performing an act which was-beneficial to her employer, incident to and within the ambit of her employment and conclusive of the proposition that her injury arose out of and in the course of her employment.”
Prior to the inauguration of the 10-minute rest period, the employees were permitted at their own discretion, with the consent of the employer, to go-out of the laundry to get coffee and sandwiches, as the laundry did not provide such facilities. One of the purposes, and the main purpose in selecting a particular time for the rest period, was to eliminate the confusion of employees leaving the laundry at irregular periods. We note that under the so-called coffee break, the employee was not required to go-out for coffee. The employees could do anything-they wished during that period or they could merely rest if that was their wish.
Defendants urge that under the circumstances of this case plaintiff did not suffer an accident arising out of her employment. Our Court adheres to the rule laid down in Daniel v. Murray Corporation of America, 326 Mich 1, 12, 13, where we said:
“In this State the test that has been followed is whether the employee, regardless of where his injury arose, either on or off the premises of his employer, was injured while within the ambit of his employment, and whether there was a causal connection between the injury and the employment. The primary test under our statute is not where the injury occurred, but whether his injury arose out of and in the course of his employment.”
The law is well settled that an industrial injury is compensable only when the injury is received while the employee is doing the duty he is employed to perform, and as a natural incident of the work, see Associated Oil Co. v. Industrial Accident Commission, 191 Cal 557 (217 P 744), cited with approval in Tegels v. Kaiser-Frazer Corp., 329 Mich 84. In the Tegels Case, above cited, plaintiff brought compensation proceedings against his employer to recover for injuries sustained while attending a union meeting at his employer’s factory for the purpose of electing a shop steward. The meeting was held during the lunch period and at a time when plaintiff was not being paid. We there held that the injury did not arise out of or in the course of plaintiff’s employment. We there said (p 90):
“In the case at bar plaintiff was not actively engaged in rendering a service to his employer at the time of his injury. ITe was exercising a privilege common to all members of the union in the selection of a steward. It cannot be said that his injury arose out of and in the course of his employment.”
The right to control or direct an employee is an essential element in determining whether the relationship of employer and employee exists. In Tuttle v. Emburg-Martin Lumber Co., 192 Mich 385 (Ann Cas 1918C, 664), we held that the test of the relationship is the right to control, whether in fact exercised or not. See, also, Dennis v. Sinclair Lum her & Fuel Co., 242 Mich 89, and Janofski v. Federal Land Bank, 302 Mich 124. In cases involving independent contractors the right to direct or control is absent. In the case at bar, as in the Tegels Case, supra, the right to control the actions or activities of the employees during the noon hour lunch period or coffee-break period was absent. In the instant case plaintiff had the option of leaving the laundry for coffee or remaining within the building for a rest period. During this period her employer had no control over her actions, nor can it be said that she was actively engaged in rendering a service to her employer. The fact that she was paid during this 10-minute interval has no bearing upon whether her injury arose out of and during the course of her employment. During this period plaintiff was exercising a privilege common to all employees of the defendant company. The facts in this case do not warrant a finding that her injury arose out of and during the course of her employment.
The order of the workmen’s compensation commission is reversed and the cause remanded for entry of an order denying compensation. Defendants may recover costs.
Carr, C. J., and Boyles, Reid, Dethmers, and Kelly, JJ., concurred with Sharpe, J. | [
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Btjtzel, J.
Charles Arnold, plaintiff, suffered severe injuries through'being struck by a truck owned by Samuel Goldstein, doing business as Sample Furniture & Appliance Company, defendant, driven by Harold B. Frost, defendant. Immediately thereafter he was again struck by a car driven by Albert I)erry, defendant. .Plaintiff alleged that his injuries resulted through the negligent operation of defendants’ respective truck and car. Plaintiff recovered á large judgment against all 3 defendants. Defendant Berry doe's not appeal from the judgment although his attorneys added théir námes to the brief on behalf of the other 2 defendants as appellants.
We shall limit our discussion exclusively to the 3 questions raised in appellants’ brief. The first is whether the judge erred in not granting a motion for a directed verdict at the close of plaintiff’s proofs on the ground that plaintiff-was contributorily negligent as a matter of law.- 'The third question is similar except that it is based upon the . judge’s refusal to direct a verdict at the close of the proofs. Appellants in their brief apparently do not question the jury’s finding that they were negligent hut they maintain that plaintiff was guilty of contributory negligence.
A very brief resume of the facts becomes necessary. The accident occurred shortly after 5:30 p.m. on November 5, 1953, in the city of Flint, Michigan. Plaintiff, 51 years of age, left his lodgings and walked down the east side of Saginaw street and after passing East Ninth street came to a point opposite a cleaning establishment, where he had some business. He thereupon started in the middle of the block to cross to the west side of Saginaw street. The street is divided in the center by a double yellow line for north- and southbound traffic. Before leaving the curb plaintiff looked to the south, saw that the traffic in that direction was stopped by a red light at the next street crossing, and then he looked towards the north, where he found that there was no traffic in sight. He walked at an ordinary gait and upon reaching the center of the street he saw defendant’s truck approaching rapidly, from the north and “hugging” the center line of Saginaw street. Plaintiff concluded that it was safest for him not to continue across but since the truck was' approaching rapidly at or next to the center line, plaintiff decided to step backwards, but on looking to the south he saw defendant Berry’s automobile traveling north next to the center line. He thus concluded to remain standing in the center line of the street in the hope that the vehicles would pull over hut a slight distance and thus avoid striking him. However, defendants did not deviate but moved straight on, notwithstanding ■ they easily could or should have seen the dangerous position in which plaintiff stood. Plaintiff claims that. the truck struck him below the knees and that the car hit his left side. The truck and the car must have hugged the center line for they collided, although only slight damage resulted.
In White v. Edwards, 222 Mich 321, 323, we stated:
“Numerous decisions of courts of last resort hold, and we think they should he followed, that one injured while momentarily standing in the highway and when not in motion is not per se guilty of contributory negligence, and that the offending party is not exonerated from all duty and from liability by the fact that he is not in motion.”
To like effect see: Rentz v. Anhut, 284 Mich 695; Carter v. C. F. Smith Co., 285 Mich 621; Wallace v. Kramer, 296 Mich 680; Burnash v. Compton, 298 Mich 70; Douglas v. Holcomb, 340 Mich 43.
In the instant case it was shown that 2 brothers crossed the same street not far from where plaintiff started to cross. They left the curb shortly after plaintiff reached the center of the street. They ran and were just able to get across without being struck. It is urged that if plaintiff had hurried he would have avoided the accident. He was confronted with an emergency. He had to decide whether to run the risk of hurrying across the path of the oncoming truck or to stand in what he deemed a place of safety. That of itself does not constitute contributory negligence per se. At most it was a question for the jury which was properly instructed as to contributory negligence. It found in plaintiff’s favor.
The only other question presented is whether the judge erred in not considering the traffic code of the city of Flint. The traffic code was at no time introduced; in fact, it doe's not even appear in the record or the briefs. The first motion for a directed verdict was made at the end of testimony on behalf of plaintiff, in the private office' of the trial judge. There had not been a word of testimony in regard to tbe traffic code of tbe city of Flint. Presumably tbe code was adopted as an ordinance by tbe city of Flint. It is true tbat in tbe answer to tbe motion attorney for plaintiff cited only cases to tbe effect tbat violation of a city ordinance is not negligence per se. Tbe judge made no written finding nor gave bis reasons for denial of motion to direct a verdict for defendants. He did not err in declining to direct a verdict on tbe strength of tbe traffic code tbat bad not been introduced in evidence. At tbe end of all the testimony, and after tbe charge of tbe judge to tbe jury, attorneys for defendants Goldstein and Frost asked tbe court to also instruct tbe jury relative to tbe duty of a pedestrian as set out “in the city of Flint —.” The code or ordinance was not in evidence and it was too late to introduce it after tbe testimony was all in. There was no abuse of discretion by tbe trial court in refusing to charge tbe jury in regard to tbe traffic code of tbe city of Flint. It was not introduced in evidence, and we need not discuss its effect as if it bad been.
Judgment affirmed, with costs to plaintiff.
Carr, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Smith, J.
John and Pauline Harter were married in Colon, Michigan, on January 23,1949. There •are 2 children of the marriage, a hoy, John, Jr., 5 years of age, and a daughter, Coral Ann, 3. For a time after their marriage, this young couple lived with her people, but eventually they purchased their own home. One of the reasons for this was that their marriage had had more than its share of trouble .almost from the start, and the purchase of the home was part of the effort to solve their marital problems. “I never did like using other people’s furniture and stuff,” testified Mrs. Harter. The effort was only partially successful. Other troubles ensued. "We have charges and countercharges. Thoughtless or malicious words, once issuing, have not been allowed to rest but have been returned, with ample interest. The lash of ridicule has not been spared. The wife and mother has left the home thrice; twice she has returned. There seems to have been little •of mutual trust, of common effort, of forbearance •or real forgiveness. Finally, on June 28,1954, John Harter filed a bill of complaint for divorce. He charged his wife with bad language, violent rages, abuse of children, occasional association with persons of questionable repute, and lack of desire for the marriage relationship. (There is no charge of •desertion.) All of this she denied, substantially, coupling with her denials her cross bill, in which he is charged with jealousy, name calling, with questioning the paternity of the children, with attempting “to set her children against her” and with arbitrary rule of the household. His denials followed in due course. Each asked for divorce and each asked for custody of the children.
So much for the charges. The hearing was had. John testified at length of his trials, and no doubt they were manifold. His testimony was corroborated in essential parts by that of his mother. Plaintiff thereupon rested. Pauline Harter testified as to her charges, and her defenses to his charges, and lier testimony was corroborated essentially by that of her father. His testimony is in violent disagreement with that of John’s mother. One Elizabeth Dunkelberger also testified in Pauline’s behalf, and,, if she is telling the truth (which John denied) the-language employed by him in addressing her, even in the presence of company, lacked both refinement and grace. Mrs. Harter was somewhat stout for a time and disparaging references by him to this circumstance seem to have taken the place of any mutually-encouraged remedial measures. We see no good to be accomplished by a detailed recital of what was said and what was done. As Justice Wiest observed in a somewhat similar situation (Hatfield v. Hatfield, 213 Mich 368, 369) : “A discussion of the testimony would be of benefit to no one.” We have, however, considered it all de novo and we are constrained to the conclusion reached by the trial chancellor, whose opinion we adopt in substantial part:
“Both parties testified as to acts claimed to have been committed by the one against the other. The testimony revealed that both used improper language toward each other, some of which was in the presence of their minor children. On at least 3-different occasions a separation has occurred. On 2 occasions a reconciliation was effected, apparently because of the children of the parties.
“The court is of the opinion that each of the parties has been guilty of improper conduct toward the other and not infrequently each has used the children in an effort to gain some advantage over the other party. Neither has demonstrated the proper regard for the children who are the innocent victims of this unfortunate situation.
“On the occasion of 1 of the earlier separations-when the husband asked his wife to return, she stated that if he would buy a home she would be a better wife. A home was acquired in the summer of 1950, and the family apparently lived in it until the wife left approximately 4 years later. Exhibits 1 and 2 are photographs of the exterior of this home, which reveal a small, neatly-kept dwelling.
“While the parties lived together, the wife was somewhat overweight which was 1 of the underlying reasons for quarreling and dissension, it appearing that the wife was sensitive about her weight and the husband ridiculed her concerning it. At the trial it appeared that she had materially reduced her weight, and it is probable that if she had done so sooner, the parties could have lived together more compatibly. The court is satisfied that neither of the parties has •exerted the necessary effort required to meet the individual responsibility of each, one to the other.
“The court is of the opinion that each of the parties provoked the discord in the home, that both are guilty of the same faults, and consequently the statute, CL 1948, § 552.10 (Stat Ann § 25.90), prohibits a decree of divorce to either.”
When the trial court, as here, after observing the parties involved and listening to their troubles is •of the opinion that fault is equally divided and that divorce is not a permitted solution under the statute, we are loath to pick a guilty party and sever the" relationship on a record so evenly balanced as that before us. Nor are we insensitive to the trial court’s observation that “neither of the parties has exerted the necessary effort” required to live harmoniously with the other. In view of the ages of John, Jr., and Coral Ann such exertions would seem demanded by the most rudimentary considerations ■of conscience.
Affirmed. No costs.
Dethmers, C. J., and Sharpe, Beid, Boyles, Kelly, Carr, and Black, JJ., concurred. | [
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Sharpe, J.
Plaintiff, John Swensen, was engaged in the business of designing, building, and selling-monuments and other cemetery memorials. In 1940 he employed defendant as a salesman and agreed to-pay him a commission of 20% on gross sales, based upon list prices furnished by plaintiff. Defendant’s*, right to receive full commission was contingent upon his collecting the purchase price of stones and monuments sold by him. The territory originally assigned to defendant included Mason and Oceana counties. At a later date defendant’s territory was enlarged to include the Muskegon territory. During World War II defendant was a part-time salesman for plaintiff. During the fall of 1946 plaintiff' established a place of business in Muskegon Heights, Michigan, for the purpose of providing a local office and displaying monuments. Defendant was made-branch manager of this branch of plaintiff’s business. In April of 1947, plaintiff, in order to enable defendant to conduct his business in Muskegon county, opened and thereafter maintained a bank account with the Hackley Union National Bank in the city of Muskegon Heights, under the name of “Swensen Monument Works,” into which defendant deposited moneys collected by him for plaintiff. Defendant was authorized to draw, and did draw, checks on the account signed by himself, including cheeks to himself for his weekly drawing account and for other expenditures. Commencing in 1948 or 1949, contracts were made in triplicate instead of in duplicate, 1 copy going to plaintiff, 1 copy going to the customer, and 1 copy retained by defendant.
Cemeteries in Muskegon county made charges for-providing foundations for monuments, depending upon the size of the stone or monument. In such cases defendant, as an accommodation to the purchaser, advanced the foundation charges and charged the purchaser such cost in addition to the list price of the monument. Cemeteries also made charges for future services. Whenever this was done defendant advanced the amount of the service charge, and added the exact sum advanced to the selling price of the monument. On sales made after the opening of the Muskegon Heights office, the purchaser of the stone or monument was required to pay the sales tax. Defendant prepared weekly reports of collections, deposits, and expenses paid hy him, and these were sent to plaintiff each month. On June 3, 1952, defendant drew a check to himself in the amount of $8,250, claiming that unpaid compensation in excess of that amount had accumulated to his credit upon the books of the branch agency. No permission was sought or granted for the withdrawal of the above sum. Plaintiff made several demands upon defendant for a return of the money, and failing to receive said money, plaintiff, on August 27, 1952, discharged defendant from his employment.
On January 8, 1953, plaintiff filed a declaration in the circuit court of Muskegon county against defendant. The declaration contained a single count in trespass on the case for the conversion of money. On January 28, 1953, defendant filed an answer to plaintiff’s declaration in which he admitted the withdrawal of the sum of money from the bank. By his answer he sought to justify the withdrawal and the appropriating of the proceeds to his own use, by claiming that on the date the check was drawn, plaintiff was indebted to defendant in an amount in excess of the check. Upon the trial of the cause, plaintiff offered proof of the payment of the money to defendant and then rested his case. Thereupon defendant moved for a directed verdict upon the theory that an authorized payment could not constitute a conversion. The court denied the motion.
During the course of the trial plaintiff amended his declaration by the addition of a count in assumpsit for conversion, and by the addition of the common counts in assumpsit. Defendant amended his answer and notice of set-off and recoupment by adding to the notice of set-off and recoupment on the theory of an account stated. During the course of the trial, defendant offered in evidence a letter received from plaintiff in August of 1945 in which plaintiff acknowledged that he was indebted to defendant in the amount of $2,412.24, and also introduced in evidence his original books of entry, showing commissions earned, amounts withdrawn by defendant, and other debits and credits.
At the conclusion of defendant’s proofs, plaintiff made a motion for a directed verdict. The court denied the motion. Plaintiff then offered proof attempting to show the amount due defendant was not the amount claimed by defendant. The cause was submitted to a jury, with instructions to give specific answers to the following questions:
“1. Did the defendant, Roy Stiller, by a distinct act of dominion, wrongfully convert to himself specific money, if any, belonging to the plaintiff ?
“That, you will answer ‘yes’ or ‘no.’
“2. Is the amount, if any, found by you, the result of a difference between the parties upon mutual accounts only?
“Yes or no.
“3. Was the defendant, Roy Stiller, entitled to a commission on foundations and handling charges made by the cemeteries?
“Yes or no.
“4. Was the defendant, Roy Stiller, entitled to a commission on sales tax for years other than the years 1951 and 1952?
“5. Do you find plaintiff agreed to pay the defendant a 3% collection fee at any time before April, 1949?
“6. Do you find plaintiff ever became obligated to the defendant in the amount claimed by the defendant in the annual, so-called, master sheets?”
The jury returned a verdict in favor of defendant in the amount of $441.05, and answered questions numbers 1 and 5 “no” and “yes” to questions 2, 3, 4 and 6.
Thereafter, plaintiff filed a motion for a new trial, and among the reasons given are the following:
“Because the court erred in denying plaintiff’s motion for a directed verdict.
“Because the verdict of the jury is contrary to law and the instructions of the court.
“Because the verdict of the jury is contrary to the great weight of the evidence. * * *
“Because the verdict is grossly excessive.”
The trial court denied plaintiff’s motion for a new trial, from which order plaintiff appeals and urges that the trial court was in error in admitting in evidence defendant’s exhibits 2 to 9, inclusive, and in refusing to grant plaintiff’s motion to strike the foregoing exhibits. It appears that exhibits 2 to 9 were week-to-week records of commissions earned by defendant, withdrawals made by him, and showed the balance due from time to time. Defendant testified that the first 5 of these exhibits were copies of the originals, while the latter 3 were originals. Defendant also testified:
“Q. Now, your exhibits 2 to 9. Directing your attention to exhibits 2 to 9, which do you claim were copies and which do you claim were originals of those exhibits? Give your answer by numbers, please.
“A. Exhibits number 2, being the year 1945, going upwards to 1950, would be copies. The last 3 exhibits, 6 to 9, would be originals.
“Q. 9 would be the only original?
“A. No, 6 to 9, ’51, and ’52.
“Q. 1950, ’51, and ’52 are originals?
“A. Yes.
“Q. And exhibits 2 to 6, for the prior years, are copies?
“A. I would say that.
“Q. When did you prepare 7,8 and 9?
“A. As I always did, in the month of December, at the year ending.
“Q. And you prepared them, as you say, by each week placing those identical sheets in the typewriter ?
“A. Yes.
“Q. And you claim that that procedure caused the sheets to become worn and torn?
“A. From the beginning, yes.
“Q. And you claim that it was for that reason that you destroyed your original copies ?
“A. That would be the reason.”
Defendant also testified that copies of these exhibits had been sent to plaintiff and received by him without protest or objection. The trial court, in admitting the exhibits in evidence, stated:
“The argument as to self-serving declarations can apply with equal force to every record of account— office record, that is, kept in the usual course of business. The statute was intended to make an exception to the hearsay rule. That statute was intended, primarily, to make an exception. Originally, documents of records of accounts were inadmissible, the test is one as to whether or not these were records which were kept in the usual course of business— whether or not they come within what is the definition of shop books, and whether or not they were made in the usual course of business. The exception to the hearsay rule on such proposition is for trustworthiness — that having been made in the usual course of business, they are made while the events are still fresh in the mind of the maker, and not when there is an intention to fabricate, and an intention to record what the events and transactions were. They would be admissible as shop books if they were made in the usual course of business and records of a tradesman or account books, and they don’t have to be in any particular form, nor do they have to be books necessarily required to be kept by a business. If they were — at the present time, that is not a restriction within the contemplation of the law, and they don’t have to be in any particular form, just so long as they appear to be the shop records, the transactions made in the usual course of business. * * * So far, there is testimony that these records were sent, periodically, in some instance^ monthly and in some instances annually— annually and monthly to Mr. Swensen. Mr. Swensen denies, in part, that he received these records and that his attention had been directed to them — then that creates a question of fact for the jury. It seems to the court that if these are the documents kept in the Muskegon office of the records of these transactions, and ties in with the sales, it would be a record of business transactions, and admissible.”
In our opinion these exhibits were admissible in evidence by virtue of CL 1948, § 617.53 (Stat Ann § 27.902).
Plaintiff also urges that the trial court was in error in admitting exhibits 10 through 17, inclusive, and in refusing to grant plaintiff’s motion to strike the foregoing exhibits. Exhibit 10 consists of 5 sheets. Defendant testified:
“A. These sheets were the system that I used of keeping track of my individual commissions. Such sheets like this were not sent to Manistee, since they were the exact copies of the contract itself. I would enter the name of the purchaser, the date of the sale, and the amount of the sale. This was kept out, and at the end of the week it was added onto the master sheet, showing the amount I would deduct for my individual pay. These show individual commissions I made weekly upon sales. * #
“Mr. Balgooyen: Now, Mr. Stiller, I wish to show you defendant’s exhibit 11, or rather, a paper marked defendant’s exhibit 11, consisting of 4 pages; defendant’s exhibit 12, consisting of 4 pages; defendant’s exhibit 13, consisting of 5 pages; defendant’s exhibit 14, consisting of 5 pages; defendant’s exhibit 15, consisting of 5 pages; and defendant’s exhibit 16, consisting of 4 pages; and defendant’s exhibit 17,-consisting of 4 pages. "Will you tell the jury what these papers are?
“A. These sheets are records showing each individual sale entered, since the sale was made. Such sheets started out from the very beginning, the-first of each year, and continued on through. It shows the number of contracts sold, the dates, the amounts, and the computation of the commissions. * * *
“The Court: These are offered as records of the ordinary course of business, they are not offered for the purpose of the contract, but showing the information upon which the master sheets were predicated. These sheets were then based upon the contract, is that right?
“A. Yes. * * *
“The Court: They may all be introduced. You may introduce the original contracts, too, if you want to. That is in the usual course of business.”
It was not error to admit these exhibits in evidence for the reason stated above relative to exhibits 2 to 9.
Plaintiff urges that the evidence affords no basis for finding that there was an account stated between plaintiff and defendant. The trial court instructed the jury as follows on this issue:
“The defendant claims that the amount shown due to him on exhibits 2 through 9, inclusive, are due him on the theory of account stated. An account stated is an agreement between parties who have had previous transactions of a monetary character; that all items of account representing such transactions are true, and that the balance struck is correct, together with the promise, either express or implied, for the payment of such balance. The failure of the debtor to object, within a reasonable time, yon may interpret as an admission of the correctness of the account. It is for you, ladies and gentlemen of the jury, to determine whether objections were made, or whether they were made within a reasonable time, having due regard to all the facts and circumstances in the case.
“Now, the mere rendering of an account is not an account stated. An account stated must be an arrangement consented to either by acts of the parties or otherwise. It must be a contractual relationship existing between the parties. A statement is not at law an account stated unless both parties have agreed, by a contract arrangement or by their own actions, that it is correct. If you find from the evidence that the defendant, Roy Stiller, submitted accounts to the plaintiff, Swensen, showing balances due on his commission account, and if you further find that the plaintiff failed to object to the account showing the balances due to the defendant, Roy Stiller, within a reasonable time, such failure you may consider as an admission of the correctness of the account.”
In Corey v. Jaroch, 229 Mich 313, 315, we said:
“When an account is stated in writing by the creditor and accepted as correct by the debtor, either by payments thereon without demur or by failure within a reasonable time to question the state of the account as presented, it becomes an account stated.”
There is evidence in this case from which a jury could determine that defendant submitted an account to plaintiff showing a balance due on his commissions account, and that plaintiff failed to object to such statement. We conclude that it was not error to give the above instructions to the jury.
Plaintiff also urges that an action of trespass on the case was the proper form of action to recover from defendant the proceeds of the check unlawfully retained by defendant, and that the trial court was in error in holding that plaintiff could not recover under the conversion count of his declaration*
In Garras v. Bekiares, 315 Mich 141, 147, we said:
“It should be noted that defendant was not required to deliver to plaintiff the specific or identical moneys which he collected for merchandise sold or on accounts receivable, but was only required to pay plaintiff the invoiced price for merchandise delivered to him. Therefore, as plaintiff was not entitled to the specific or identical moneys collected by defendant from his customers, he was not entitled to a judgment in tort for conversion.”
Under the above authority, plaintiff was not entitled to recover under the conversion count of his declaration. It was not error for the trial court to so hold.
Plaintiff urges that the trial court was in error in refusing to charge the jury that defendant was not entitled to compute commissions on sales taxes, charges by cemeteries for foundations, and for handling charges. The trial court instructed the' jury as follows:
“The plaintiff denies that he ever agreed that the defendant would be entitled to compute his commissions on the selling price of the monuments, plus sales tax thereon, and that the plaintiff ever said anything to the defendant that would warrant defendant’s assuming that he had a right to include sales tax in computing his commission, and he says that the dealings between the parties negative any such right. The plaintiff further says that the customs, dealings and acts between the defendant and himself negative any right on the defendant’s part to add the sales tax to the selling price of the monument in fixing the amount upon which the defendant’s commission should be computed.
“The plaintiff further says that he never agreed that the defendant was entitled to charge his commission on the amount charged to the purchaser of the monument for the expense charged for installing the foundation, and that the defendant, himself, in computing the commissions earned by other salesmen employed by the defendant, excluded the cost of the foundations in computing the commissions of such salesmen. * * *
“It is the defendant’s claim that he was entitled to a commission of 23% of the total sales made by him, and an additional 3% on sales made by other salesmen, as a collection charge. There is also a dispute in this case over how the rate of commission was to be computed. The defendant says that he was entitled to a commission on the total contract price, which the defendant claims includes the stone, sales tax, and foundation charge.”
The record in this case clearly shows that there was an issue of fact as to the amount of commissions defendant was entitled to. The trial court correctly instructed the jury on this issue.
Plaintiff also urges that he was prejudiced by the court having misdirected the jury in his charge, in that it was confusing, misleading, repetitious, and gave undue prominence to defendant’s theory of the case. The record shows that there were many issues of fact involved in this case upon which the jury were entitled to instructions. We have examined the instructions carefully, and conclude that the theories of both plaintiff and defendant were properly presented to the jury, without undue prominence as to either party.
It is also urged by plaintiff that the findings of the jury in their answers to the special questions are against the great weight of the evidence, and that such findings of fact are the result of sympathy, partiality, prejudice, passion, and other improper considerations. In our examination of the record we fail to find substantive proof to support plaintiff’s charges; moreover, the answers to the special questions by the jury find support in the record. We note that after the appeal had been perfected, John Swensen died on February 9, 1955. His executors are now proper parties plaintiff by an order of the probate court of Manistee county.
The judgment is affirmed, with costs to defendant.
Carr, C. J., and Btjtzel, Smith, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Per Curiam.
A circuit court jury convicted the defendant of third-degree criminal sexual conduct, but the Court of Appeals reversed on the ground that the defendant had been denied effective assistance of trial counsel. Because the circuit court’s findings of fact were not clearly erroneous and its conclusions of law are correct, we agree with the circuit court that the defendant’s trial attorneys were not ineffective. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.
i
In early 1998, the defendant was charged with one count of third-degree criminal sexual conduct for having sexual intercourse with his wife’s daughter—his stepdaughter. MCL 750.520d(l)(a). The stepdaughter says that a number of sexual assaults occurred, culminating on a Sunday afternoon in May 1997, when sexual relations occurred in the defendant’s truck, as they parked on a rural road.
The defendant has consistently denied the charge. He maintains that the criminal allegation is the complainant’s revenge for parental discipline of an unruly teenager. At trial, he supplemented that defense with alibi testimony, seeking to demonstrate that he was working on the Sunday afternoons when this assault might have occurred.
This matter was tried before a Leelanau Circuit Court jury in the late summer of 1998. The jurors believed the complainant, and thus found the defendant guilty as charged. In October 1998, the court sentenced the defendant to a term of six to fifteen years in prison. Two months later, the court denied the defendant’s motion for a new trial.
After the defendant appealed, the Court of Appeals granted his motion to remand, so that he could file another motion for a new trial. On remand, the circuit court conducted a Ginther hearing to determine whether the defendant had been denied effective assistance by the two attorneys who represented him at trial. After taking testimony from several witnesses, the circuit court denied the motion.
Following the remand, the Court of Appeals reversed the defendant’s conviction, agreeing with his contention that he had been denied effective assistance.
The prosecuting attorney has applied for leave to appeal.
n
In People v Mitchell, 454 Mich 145, 155-156; 560 NW2d 600 (1997), we explained the principles of law that govern an inquiry whether there has been a denial of effective assistance:
The benchmark case describing the standard for claims of actual ineffective assistance of counsel in Michigan is People v Pickens, [446 Mich 298, 318; 521 NW2d 797 (1994)], which held that the right to counsel under the Michigan Constitution does not justify a more restrictive standard than that applied under the United States Constitution and adopted the Supreme Court’s test in Strickland [v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984)]. That test requires the greatest level of factual inquiry into the actual conduct of the defense and its effect on the outcome of the trial. It places the burden on the defendant to show, with regard to counsel’s performance,
“that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. . . [and] that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. [Id. at 687.]”
In applying this test, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .” Id. at 689. [C]ases decided under the Strickland/Pickens test require the defendant to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland at 689.
Accord, People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000).
m
In conducting an appellate review of the manner in which these principles were applied by the circuit court and the Court of Appeals, we begin by locating the proper standard for such review. Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law. A judge first must find the facts, and then must decide whether those facts constitute a violation of the defendant’s constitutional right to effective assistance of counsel.
As we have explained in other contexts, a trial court’s findings of fact are reviewed for clear error. MCR 2.613(C), 6.001(D); cf. MCR 7.211(A)(3)(a). See, generally, Grievance Administrator v Lopatin, 462 Mich 235, 247, n 12; 612 NW2d 120 (2000); In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000); McDougal v McDougal, 451 Mich 80, 87; 545 NW2d 357 (1996); Sparks v Sparks, 440 Mich 141, 151-152; 485 NW2d 893 (1992); Mazur v Blendea, 409 Mich 858; 294 NW2d 827 (1980).
Questions of constitutional law are reviewed by this Court de novo. Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001); People v Dunbar, 463 Mich 606, 615; 625 NW2d 1 (2001); Blank v Dep’t of Corrections, 462 Mich 103, 112; 611 NW2d 530 (2000).
IV
In the present case, the Court of Appeals concluded that a review of the record had persuaded it that “trial counsel’s performance undermines confidence in the reliability of the result. Mitchell, supra.” That conclusion rested on three principal bases—failure to introduce testimony from a defense expert, failure to conduct a proper voir dire of prospective jurors, and failure to object to rebuttal testimony. However, we conclude that in each instance the circuit court, not the Court of Appeals, correctly resolved the issue whether the defendant was denied effective assistance.
A
EXPERT TESTIMONY
The prosecution relied in part on the testimony of an expert in treating teenage sexual abuse victims. The expert testified that young victims often delay reporting the crime because of embarrassment, concern for the family, and other reasons. The import of her testimony was that the behavior of the complainant in this case was consistent with the behavior often exhibited by such victims.
Defense counsel had subpoenaed an expert who was prepared to offer countering testimony. However, defense counsel did not call her to testify at trial.
At trial, the prosecution expert properly refrained from offering an opinion regarding the defendant’s guilt. However, the Court of Appeals found her testimony to have been quite significant, and criticized defense counsels’ failure to call the defense expert. Saying that the record belied the claim that the decision not to call her was strategic, the Court characterized defense counsels’ preparation as “inadequate,” and concluded, “our confidence in the reliability of the result has been undermined, Mitchell, supra, and a new trial based on ineffective assistance is warranted.”
The contrary conclusion of the circuit court was explained in the opinion it issued after the remand proceedings. The circuit court noted several minor matters regarding which the would-be defense expert could have challenged the prosecution expert, but concluded that these were fairly inconsequential. The principal issue, obviously, was whether the defense attorneys had committed a serious mistake in deciding to forgo the testimony of the expert whom they had subpoenaed. Concerning this question, the circuit court stated:
When [one of the defense attorneys] testified [at the remand hearing], he stated that his approach in examining [the prosecution expert] was to attack her credibility by showing that she was part of the police team and that she had a relationship counseling and treating the complainant. Thus she would not be objective in the juries’ eyes. He went on to testify that he did not call [the defense expert] because in his experience a battle of the experts in cases of this type tends to favor of [sic] the prosecution. Merely calling a defense expert on these issues tells the jury that such experts are important and are to be believed and actually tends to increase in the [jurors’] eyes the importance of these expert witnesses in [defense counsel’s] view. So he decided not to call [an expert].
As a tactical decision, even in retrospect, this Court cannot say that [defense counsel’s] plan about expert witnesses was wrong. During trial on August 26, 1998, under cross-examination by [defense counsel], the victim was asked what [the prosecution expert] had told her about the behavior of sexual abuse victims, implying she had been coached by [the expert]. He went on to bring out by questioning the victim that [the expert] was involved with the prosecution team in planning how the trial was conducted. The defense team’s approach to [the prosecution expert] was to show that she was not objective and that therefore her testimony to the jury could not be believed. This is a legitimate and reasonable tactical decision by an attorney as to how to handle the other side’s expert witness.
This is a sound reading of the events that unfolded at trial—certainly there is no clear error in the circuit court’s findings of fact. One can posit theories under which the defense might have been advanced by using the expert testimony of the woman whom the attorneys had subpoenaed. However, as explained in Mitchell, the inquiry is not whether a defendant’s case might conceivably have been advanced by alternate means.
As noted above, our task on appeal is to examine de novo the constitutional issue whether, on facts properly found by the circuit court, the defendant was denied effective assistance. In the phrasing of Mitchell, we determine whether “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the deficient performance prejudiced the defense,” i.e., “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 156, quoting Strickland, 466 US 687. On the present record, the decisions made by defense counsel concerning use of an expert witness were well within the bounds of sound professional representation, and did not come close to depriving the defendant of a fair trial.
Again, the central issue in this case is a mixed question of fact and law. We have found the circuit court’s findings of fact not to be clearly erroneous, and we conclude, on those facts, that the decisions regarding use of an expert witness did not rise to the level of a constitutional violation.
B
VOIR DIRE
The defendant is a Native American, who was employed as a police officer. During voir dire, defense counsel did not ask the prospective jurors whether any of them harbored prejudice against Native Americans or police officers.
The circuit court observed that “[u]nnecessary voir dire about racial matters might have the effect of making race an issue when it was not,” and concluded that, “[i]n this case, defense counsels’ conscious decision not to inquire about race during voir dire was sound trial strategy.” These conclusions were supported with a detailed discussion of the tes timony presented by the defendant at the Ginther hearing.
Here, too, the Court of Appeals disagreed with the conclusion reached by the circuit court. Acknowledging that “[t]he mere fact that a complainant and the victim are of different races does not make race a bona fide issue,” the Court nonetheless held that “inquiry into any potential bias or prejudice against defendant was crucial where a conviction was based, in large part, on the credibility of the witnesses.” Thus, “[w]hile defendant was unable to demonstrate that race was a bona fide issue in the case, we conclude that the failure to inquire into bias or prejudice based on occupation and race undermines the reliability of the verdict.” The Court added that, “[because the jury’s verdict was contingent on the credibility of defendant and the victim, any bias or prejudice by the jury could have served as the basis of the verdict.”
Again, we have been shown no clear error in the circuit court’s findings of fact. In addition, our de novo application of constitutional principles to those facts yields the same result as that reached by the circuit court.
As the circuit court noted, the defendant failed to produce evidence that failure to conduct voir dire on the topic of race, even if a serious mistake, led to any prejudice against the defense. At the Ginther hearing, a defense expert on juries offered the opinion that the populace of northern Michigan is prejudiced against Native Americans, although she presented no corroborative studies. Her “investigation” was limited to conversations with two attorneys (one who had appeared for the defendant in connection with post- conviction proceedings in the present case, and one who had represented the defendant’s tribe in treaty-related matters) and a personal friend. The court aptly observed, “As a study of juror prejudice in northern Michigan, this hardly suffices to support her opinion.”
The expert talked about survey findings in Minnesota, which evidently showed a degree of opposition in the non-Indian community to the treaty-based rights of Indians to engage in certain hunting, fishing, and gaming activities not open to the general populace. In this regard, the circuit court stated:
From her testimony, the court deduced that the [Minnesota survey] questions related to the jurors’ opinions of special rights that were secured to tribes pursuant to treaty, court decision, and otherwise respecting hunting, fishing and casino gambling. This case, however, had no aspect of controversy over hunting, fishing rights, casino gambling, or any other issue related to the rights of tribes and their members. The fact that a substantial number of Minnesota jurors, according to [the expert’s] testimony, disapprove or have reservations about the special rights of tribes and their members to hunt and fish under historic treaties as interpreted by the federal courts or about the special rights of tribes to conduct gambling operations does not equate with personal prejudice against Indians. To conclude that those answers make the jurors racially prejudiced would be as foolish as concluding that former Michigan Supreme Court Justice and now [United States Court of Appeals for the Sixth Circuit] Judge James Ryan is racist because he dissented in a recent case in which the Sixth Circuit Court of Appeals held that commercial fishing boats operated by tribal members had the right to use municipal marinas in Leelanau County. See [Grand Traverse Band v Dep’t of Natural Resources], 141 F3d 635 (CA 6, 1998). That a juror might express reservations about the propriety of the rights in ■ question would not indicate that juror is racially prejudiced and would be of little relevance unless the case grew out of a situation involving those treaty rights.
Next, the court discussed testimony concerning some specific incidents of racial bias against Native Americans in northern Michigan. Here the court said that “it would be ignoring the obvious to suggest that there is no prejudice against Native Americans in northern Michigan or in any part of Michigan for that matter.” However, the count went on to say that, “[e]ven if this court could take judicial notice of that fact, it would also have to take judicial notice of the apparent widespread support in the public for Native Americans.”
The court also discussed testimony concerning (a) the close attention paid by the jury to the complainant’s testimony, (b) the reaction of some jurors to a smudging ceremony at the courthouse, and (c) a question at the preliminary examination concerning whether anyone in the audience resided in Peshawbestown. As the court noted, each of these had a ready and benign explanation.
In its opinion of reversal, the Court of Appeals wrote:
[E]ven when requested, an inquiry into racial prejudice is constitutionally required only where race is a bona fide issue in this matter. Ristaino v Ross, 424 US 589, 594; 96 S Ct 1017; 47 L Ed 2d 258 (1976).
Nothing in the record before us suggests that race was a bona fide issue in the present case, as the Court of Appeals itself acknowledged. While the defendant and the complainant were of different racial backgrounds, that circumstance by itself is not sufficient to conclude that race is a bona fide issue in a case, requiring, as a constitutional matter, particular inquiry at voir dire. Both sides tried this case as a fact-specific dispute involving events that did or did not occur within a particular family. Simply put, this case was not about race.
The circuit court’s findings of fact are not clearly erroneous, and we agree with its conclusions of law. On the record of this case, the defense lawyers did not withhold effective assistance of counsel when they did not inquire during voir dire about bias against Native Americans.
There is also an issue about failure to inquire about prejudice against police officers, but the circuit court properly noted that the record contains no evidence of bias against police officers in Leelanau County or among the persons hearing this particular case. Again, the record does not support the conclusion that the failure to inquire during voir dire constituted ineffective assistance.
c
REBUTTAL TESTIMONY
A third ground on which the Court of Appeals found ineffective assistance was defense counsels’ failure to object to certain rebuttal evidence.
The issue arose in this manner: In support of his alibi, the defendant testified that he was working on the dates when the assault might have occurred. In the course of this direct-examination testimony, he referred to the department logs, which documented his daily activities as an officer. On cross-examination, he was asked whether he had ever falsified his daily logs. He denied doing so. On rebuttal, the prosecutor called a department sergeant who testified, without objection, that the defendant falsified his log one day in July 1996 by recording a ninety-minute lunch break as though it had lasted only sixty minutes.
The Court of Appeals held, in effect, that counsel was obliged to object to this testimony:
MRE 608(b) provides that specific instances of conduct of a witness, for the purpose of attacking credibility, other than conviction of a crime, may not be proved by extrinsic evidence. See also Lagalo v Allied Corp (On Remand), 233 Mich App 514, 518; 592 NW2d 786 (1999). Once defendant denied falsification of any daily log, the prosecutor was “stuck” with that answer. Wischmeyer v Schanz, 449 Mich 469, 477-478; 536 NW2d 760 (1995). Furthermore, there was no dispute, based on the victim’s work schedule, that any alleged sexual abuse would have occurred after, not during, defendant’s work shift. Therefore, our confidence in the reliability of the verdict in light of defense counsel’s failure to object to this specific instance of conduct, coupled with other errors in the trial, require reversal.
The Court of Appeals also found error in failing to object to other portions of the rebuttal testimony, including matters that the Court characterized as “inconsequential” and not proper impeachment.
In its opinion on remand, the circuit court characterized the disputed rebuttal testimony as harmless, saying that “[t]he only possible exception might be the [sergeant’s] testimony . It analyzed that portion of the record in this manner:
When the defendant testified at [trial], he relied on the logs he maintained of his working time as a police officer for the Grand Traverse Band. He relied on those time logs to show that he could not have picked the victim up at her place of employment at [a restaurant] in Leland on the likely day in question. The accuracy of his employment time log was key to corroborating his statement that he did not and could not have driven the victim home from work, and stopped to commit the offense, on that day. He specifically testified that he never falsified his time logs.
It was in rebuttal to that testimony that the prosecution offered [the sergeant] to testify that in fact on a prior occasion he had caught the defendant falsifying his time logs. By relying upon his time logs to corroborate his statement that he could not have committed the crime on the day in question and by specifically testifying that these time logs he never altered, the defendant opened the door to this rebuttal evidence and it was admissible.
In finding that the rebuttal testimony was improperly admitted, and that counsel therefore was ineffective for failing to object, the Court of Appeals relied, as noted above, on MRE 608(b):
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. [Emphasis supplied.]
As the Court of Appeals correctly observed, it has long been the law of this state that a cross-examining attorney must accept the answer given by a witness regarding a collateral matter. People v Hillhouse, 80 Mich 580, 585; 45 NW 484 (1890); Hamilton v People, 46 Mich 186, 188; 9 NW 247 (1881). However, the law in this realm has nuances, including the rule, noted in People v Vasher, 449 Mich 494, 504; 537 NW2d 168 (1995), that impeachment can be proper on matters “closely bearing on defendant’s guilt or innocence.”
The present issue is whether defense counsels’ failure to object constituted ineffective assistance. Our examination of the record persuades us that there was no ineffective assistance in this regard. First, as the circuit court observed, the existence of the logs was an element of the defendant’s own testimony on direct examination. Further, the gist of his testimony was that these were essential police records, accurately maintained. In light of the alibi defense, it is far from clear that the defendant’s inaccurate entry on another occasion was entirely a “collateral matter.”
Further, we must weigh the strategic decisions made by the experienced attorneys who represented the defendant. If counsel had objected to the prosecution’s question about alteration of the logs, the counter-productive effect might have been to communicate to the jury that the defense was seeking to hide significant inaccuracies in the logs maintained by the defendant. By allowing the rebuttal evidence (of a single occasion when the defendant stretched his lunch thirty minutes), counsel let the jury learn that the problem was slight. Counsel went on, during closing argument, to use this testimony to the defendant’s advantage, noting that the sergeant was “keeping an eye” on the defendant’s record keeping. This is the sort of professional judgment and careful advocacy, all done in the heat of trial, that we will not second-guess at this distance.
Again, this subissue reveals no clearly erroneous findings of fact by the circuit court. Our de novo review of the constitutional question leads, for the reasons stated above, to the conclusion that the defendant was not denied the effective assistance of trial counsel.
D
CUMULATIVE ERROR
The Court of Appeals closed its opinion with this:
The cumulative effect of a number of errors may amount to error requiring reversal. People v Cooper, 236 Mich App 643, 659-660; 601 NW2d 409 (1999). After a thorough review of the record on appeal, we conclude that the cumulative effect of counsel’s errors undermines the confidence in the reliability of the verdict and a new trial is warranted. Id.; Mitchell, supra.
It is true that the cumulative effect of several errors can constitute sufficient prejudice to warrant reversal where the prejudice of any one error would not. However, for the reasons stated above, this is not a case involving multiple errors by counsel.
Rather, this is a case in which two experienced attorneys provided a vigorous and effective defense for the accused. After examining the full record of this case, we are mindful of what we said in Mitchell:
In the real world, defending criminal cases is not for the faint of heart. Lawyers must fulfill ethical obligations to the court, zealously advocate the client’s best interests (which includes establishing that they, and not the client, are in charge of making the professional decisions), and protect themselves against grievances and claims of malpractice. Lawyers will inevitably malee errors in the process, but, because both cases and attorneys come in an infinite variety of configurations, those errors can only rarely be defined “with sufficient precision to inform defense attorneys correctly just what conduct to avoid.” Strickland at 693. Thus, the Sixth Amendment guarantees a range of reasonably competent advice and a reliable result. It does not guarantee infallible counsel. [454 Mich 170-171.]
V
For these reasons, we conclude that the defendant was not denied effective assistance of counsel. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. MCR 7.302(F)(1).
Corrigan, C.J., and Weaver, Taylor, Young, and Markman, JJ., concurred.
Unpublished order, entered September 13, 1999 (Docket No. 217281).
People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).
Unpublished opinion per curiam, issued February 20, 2001 (Docket No. 217281).
The defendant has also applied, seeking leave to appeal as cross-appellant. We deny the defendant’s application.
The defendant disputes her expertise.
It appears that both the prosecution expert and the would-be defense expert had counseled the complainant in this matter. However, defense counsel apparently did not seek to review the records of the defense expert.
People v Beckley, 434 Mich 691, 727-729, 734, 744; 456 NW2d 391 (1990); People v Peterson, 450 Mich 349, 369; 537 NW2d 857 (1995).
As indicated, the Court of Appeals implied that defense counsel did not really make a reasoned decision, but contrarily that poor preparation led to the failure to call the defense expert. It is evident that the circuit court credited the testimony of the defense attorneys at the remand hearing, and we see no error in that determination.
Smudging is a Native American custom, in which herbs are burned to create a cleansing smoke, for the purification of persons, places, or objects. See, generally, http://www.bmcc.org/BimaadzwinAIAaditions/ smudging.htm.
Many members of the Grand Traverse Band of Ottawa and Chippewa Indians reside in the Leelanau County community of Peshawbestown.
The defendant retained two attorneys, each of whom had twenty-five years of experience. Each had worked both as a prosecutor and a defense attorney, and had tried hundreds of felonies.
People v Bahoda, 448 Mich 261, 292, n 64; 531 NW2d 659 (1995), clarifies the meaning of the phrase “cumulative error.”
In making this determination, only actual errors are aggregated to determine their cumulative effect. United States v Rivera, 900 F2d 1462, 1471 (CA 10, 1990) (en banc) (“Impact alone, not traceable to error, cannot form the basis for reversal”).
That is, individual claims of error either have merit or they do not. A ruling or action that is almost wrong does not become an error on the ground that, in the same case, other rulings or actions were almost wrong, too. Thus, “cumulative error,” properly understood, actually refers to cumulative unfair prejudice, and is properly considered in connection with issues of harmless error. Only the unfair prejudice of several actual errors can be aggregated to satisfy the standards set forth in People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). | [
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Young, J.
I. INTRODUCTION
In this life insurance dispute, plaintiffs, Jeffrey Lee Oade and Sheilah Chouinard, seek to recover benefits from a Jackson National Life insurance policy issued and delivered to Gary Oade. Plaintiffs, the son and friend of Mr. Oade, respectively, are the named beneficiaries of the insurance policy. Defendant claims that the policy never became effective because Mr. Oade failed, as required by the terms of the insurance application, to provide updated information about his health and medical treatment between the date he signed the application and the day the policy was issued. We granted leave to address the applicability of the statutory requirement under MCL 500.2218(1), that a misrepresentation in an application of insurance be material in order to make the insurance policy avoidable.
Because Mr. Oade had an explicit, contractual continuing duty to ensure that the answers in his insurance application remained true until the effective date of the policy, we hold that Mr. Oade’s failure to supplement his medical history rendered his original answers false, making them “misrepresentations” within the meaning of MCL 500.2218(2). However, contrary to the Court of Appeals decision, we conclude that these misrepresentations were material, and that defendant was therefore entitled to avoid the contract. Accordingly, we reverse the Court of Appeals decision and reinstate summary disposition in favor of defendant.
H. FACTUAL AND PROCEDURAL BACKGROUND
On November 29, 1993, Mr. Oade, a fifty-three year-old store owner, contacted his insurance agent and completed a Jackson National Life Insurance Company of Michigan application for a “preferred” $100,000 life insurance policy. In order to evaluate the insurance risks posed by an applicant and consistent with standard underwriting procedures, the Jackson National application required answers to certain questions about an applicant’s health status. That application further required that the applicant inform defendant in writing if the applicant’s health or any of the answers or statements contained in the application changed between the time the original answers were given and the date the policy was issued and delivered.
The application contained the following questions relevant to the resolution of this case:
2. Have you ever been treated for, or ever had any indication of:
* * *
d. Chest pain, discomfort or tightness; palpitations, high blood pressure, rheumatic fever, heart murmur, heart attack or other disorder of the heart or blood vessels?
3. Have you, in the past five years:
a. Consulted or been treated by a physician or other medical practitioner?
b. Been a patient in a hospital, clinic, or medical facility?
In answering the application questions, Mr. Oade denied, in response to question 2(d), that he had been treated for chest pain, discomfort or tightness, palpitations, rheumatic fever, heart murmur, heart attack or other disorder of the heart or blood vessels. However, he disclosed that he had been treated for high blood pressure. In response to question 3(a) and (b), he denied that he had been hospitalized but disclosed that he had been treated by a physician or other medical practitioner during the preceding five years. Defendant did not contest the accuracy of the initial answers Mr. Oade made in response to the application.
On December 25, 1993, between the submission of Mr. Oade’s application and defendant’s approval and delivery of the policy, Mr. Oade went to a hospital emergency room, complaining of chest pains. He was admitted to the hospital and stayed overnight while tests were performed. As noted, the application for insurance required Mr. Oade to provide updated health information. In particular, Mr. Oade’s initial answers that he had not been a patient in a hospital in the preceding five years, and had never been treated for chest pains thus became inaccurate information concerning his health status. Despite the requirement to provide updated health information, it is undisputed that Mr. Oade did not inform defendant of his December hospitalization for chest pains.
On January 4, 1994, after evaluating Mr. Oade’s application, defendant approved him for a “standard” policy rather than the “preferred” policy he had originally sought. Oade paid the additional premium on January 6, and the policy was delivered that day.
Mr. Oade died suddenly from a heart attack on September 1, 1994. Plaintiffs submitted a claim to defendant for payment of the death benefits provided in the life insurance policy. Defendant investigated, discovered the undisclosed hospitalization, and denied the claim on the ground that, although required to do so under the terms of the insurance application, Mr. Oade failed to report his change in medical history. Defendant declared that, because Mr. Oade had violated conditions precedent to create insurance coverage, the policy never became effective.
Following defendant’s refusal to pay under the policy, plaintiffs brought this action in the circuit court where both parties filed cross-motions for summary disposition. The circuit court granted summary disposition in favor of defendant, holding that Mr. Oade’s failure to communicate in writing the “material changes” to his answers in the application prevented the policy from taking effect.
The plaintiffs appealed, and the Court of Appeals reversed in an unpublished per curiam decision. The Court of Appeals recognized that parties may mutually agree that certain conditions be met before an insurance contract will become effective. However, the Court reasoned that such contract terms must not conflict with applicable statutes. The Court held that the case was governed by MCL 500.2218(1). It rejected defendant’s argument that the insurer was not claiming misrepresentation permitting rescission of an existing policy, but that the policy never became effective in the first instance.
In applying the statute, the Court of Appeals attempted to determine whether the undisclosed health information was material within the meaning of MCL 500.2218(1). In so doing, the Court relied on Zulcosky v Farm Bureau Life Ins Co of Michigan, 206 Mich App 95; 520 NW2d 366 (1994), for the proposition that a misrepresentation is not material if the insurer would have issued “a” policy, albeit a different one issued at a higher rate.
Applying these principles to the facts of the case, the Court of Appeals concluded that, because plaintiffs had presented the deposition and affidavit of one of defendant’s underwriters indicating that there was a possibility that Mr. Oade would have been offered a policy at a higher rate, plaintiffs had established a genuine issue of fact concerning the materiality of Mr. Oade’s failure to disclose.
This Court granted defendant’s application for leave to appeal.
m. STANDARD OF REVIEW
Issues of statutory interpretation are questions of law and are therefore reviewed de novo. Cardinal Mooney High Sch v Michigan High Sch Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
A motion for summary disposition under MCR 2.116 (C)(10), which tests the factual support of a claim, is subject to de novo review. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 8 (1999).
IV. ANALYSIS
The Court of Appeals relied on the materiality requirement found in MCL 500.2218(1):
No misrepresentation shall avoid any contract of insurance or defeat recovery thereunder unless the misrepresentation was material. No misrepresentation shall be deemed material unless knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make the contract.
Although we agree with the Court of Appeals that MCL 500.2218 applies to the facts of the instant case, we disagree with its conclusion that Mr. Oade’s misrepresentations were not material.
A. APPLICABILITY OF MCL 500.2218
The touchstone of the statute’s applicability is a “misrepresentation.” MCL 500.2218(2) defines a “misrepresentation” as a “false representation.” A “representation,” in turn, is statutorily defined as a “statement as to past or present fact, made to the insurer by or by the authority of the applicant for insurance or the prospective insured, at or before the making of the insurance contract as an inducement to the making thereof.” MCL 500.2218(2).
When he submitted his insurance application, Mr. Oade indicated on the application that he had not been a patient in a hospital in the preceding five years and that he had never been treated for chest pains. However, between the submission of Mr. Oade’s application and defendant’s approval and delivery of the policy at issue, Mr. Oade was hospitalized for chest pains. It is undisputed that Mr. Oade did not inform defendant of this event.
The question, then, is whether Mr. Oade engaged in a misrepresentation for purposes of MCL 500.2218(2). We conclude that he did. Under the express language of the insurance application, Mr. Oade had a continuing duty to ensure that the answers in his insurance application remained true as of the date he received the policy. In relevant part, the application variously states:
It is represented that the statements and answers given in this application are true, complete, and correctly recorded to the best of my . . . knowledge and belief.
* * *
I understand that no policy based on this application will be effective unless all of my statements and answers continue to be true as of the date I receive the policy. I understand that if my health or any of my answers or statements change prior to delivery of the policy, I must so inform the company in writing.
* * :|:
I understand that my statements and answers in this application must continue to be true as of the date I receive the policy I understand that if my health or any of my answers or statements change prior to delivery of the policy, I must so inform the Company in writing.
likewise, the interim insurance receipt provides as follows:
[N]o policy will go into force unless all my statements and answers in this application continue to be true as of the date I receive the policy:
If my health or any of my answers or statements given in this or any other supplement to this application change prior to delivery of the policy, I must so inform the Company in writing ....
Despite contractually promising that his answers would “continue to be true” as of the effective date of the policy, Mr. Oade failed to do so. This failure rendered Mr. Oade’s previous answers false, thereby making them misrepresentations under MCL 500.2218(2).
Having determined that the statute applies, we turn to the Court of Appeals decision that Mr. Oade’s misrepresentations were not material and that defendant therefore could not avoid the insurance contract.
B. MATERIALITY REQUIREMENT
MCL 500.2218(1) provides:
No misrepresentation shall avoid any contract of insurance or defeat recovery thereunder unless the misrepresentation was material. No misrepresentation shall be deemed material unless knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make the contract.
The Court of Appeals relied on its prior decision in Zulcosky v Farm Bureau Life Ins Co, supra, for the proposition that a change in facts is “material” only where the correct information would cause the insurer to reject the applicant altogether. Zulcosky would not find materiality where the correct information would merely prompt the insurer to offer a policy at a higher premium. However, this is contrary to the binding precedent of this Court. Our decision in Keys v Pace, 358 Mich 74, 82; 99 NW2d 547 (1959), made clear that a fact or representation in an applica tion is “material” where communication of it would have had the effect of “substantially increasing the chances of loss insured against so as to bring about a rejection of the risk or the charging of an increased premium.” Keys, in turn, is consistent with the plain language of MCL 500.2218(1), which defines materiality in terms of the insurer’s refusal “to make the contract” (emphasis added), not “a” contract.
In this case, the undisputed evidence presented to the trial court made clear that the correct information would have led the insurer to charge an increased premium, hence a different contract. Indeed, defendant’s underwriter stated in her affidavit that defendant “may have been willing to offer a more expensive ‘rated’ insurance contract at approximately double the premium cost that Mr. Oade had paid for the ‘standard’ insurance policy in this instance.” Thus, the Court of Appeals erred in focusing on whether defendant would have issued any contract of insurance to Mr. Oade. The proper materiality question under the statute is whether “the” contract issued, at the specific premium rate agreed upon, would have been issued notwithstanding the misrepresented facts. The Court of Appeals contrary decision in Zulcosky is overruled.
Because there is no genuine issue of material fact on the issue of materiality, defendant is entitled to summary disposition under MCR 2.116(C)(10).
V. RESPONSE TO THE DISSENT
Contrary to the dissent, we conclude that it is altogether irrelevant that plaintiff’s health did not change during the prepolicy period. The dissent, in concluding that the case presents a question of material fact, asserts that plaintiff offered evidence that he had not suffered a heart attack. It further asserts that plaintiff’s personal physician affirmed that decedent’s health “did not change in anyway [sic]” between the date he applied for the insurance policy and when it was delivered. Post at 262. On the basis of this evidence, the dissent concludes that “the fact issue concerning the materiality of decedent’s misrepresentations should be resolved by the trier of fact.” Post at 266.
However, the focus of inquiry under the statutory “materiality” test is whether a reasonable underwriter would have regarded Mr. Oade’s updated answers regarding his hospitalization for chest pains as sufficient grounds for rejecting the risk or charging an increased premium, not whether the status of Mr. Oade’s health had changed. Because there is no dispute that defendant would have, at minimum, issued an insurance policy at a higher premium rate, no reasonable jury could conclude that it would have issued the same contract.
To create an issue of fact on the materiality question, plaintiffs were free to bring forth evidence drawing into question the testimony of defendant’s underwriter. Because plaintiffs did not do so, the trial court properly granted summary disposition to defendant under MCR 2.116(C)(10).
VI. CONCLUSION
While we agree with the Court of Appeals that MCL 500.2218 applies here, we conclude that Mr. Oade’s misrepresentations were material, thereby entitling defendant to avoid the insurance contract. Accordingly, we reverse the Court of Appeals decision and reinstate summary disposition in favor of defendant.
Corrigan, C.J., and Weaver, Taylor, and Markman, JJ., concurred with Young, J.
Mr. Oade applied for a “preferred” life insurance policy. After evaluating Mr. Oade’s medical history, Mr. Oade was finally approved for a “standard” policy which was more expensive than the “preferred” policy. Though both parties neglect to provide an explanation of the difference between the two policies, it appears that a “preferred” policy is issued to applicants who are in “better” health.
The interim insurance receipt is another document that Mr. Oade signed. The language on the interim insurance receipt provided:
I . . . understand and agree that:
1. no policy will go into force unless all my statements and answers in this application continue to be true as of the date I receive the policy:
2. if my health or any of my answers or statements given in this or any other supplement to this application change prior to delivery of the policy, I must so inform the Company in writing ....
Unpublished opinion per curiam, issued February 26, 1999 (Docket No. 202501).
463 Mich 864 (2000). | [
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Journal Entries (1822-36): Journal 3: (1) Time for filing answer extended, continued *p. 297. Journal 4: (2) Motion for hearing MS p. 20; (3) motion to dismiss bill MS p. 65; (4) demurrer and plea set for argument MS p. 72; (5) solicitor’s name stricken MS p. 104; (6) leave given to file cost bond and bill of revivor, etc. MS p. 106; (7) continued MS p. 121; (8) motion for argument MS p. 181; (9) continued MS p. 215; (10) argument on plea and demurrer opened MS p. 280; (11) argument continued MS p. 281; (12) argument closed, case submitted MS p. 282; (13) plea overruled, leave given to amend bill MS p. 315; (14) motion to expunge demurrer MS p. 330; (15) motion to expunge demurrer and plea MS p. 333; (16) motion to expunge argued and submitted MS p. 365; (17) motion to expunge overruled, leave given to plead further MS p. 380; (18) motion for reference to master MS p. 440; (19) referred MS p. 472; (20) referred MS p. 485; (21) rule of reference enlarged MS p. 517. Journal 3: (22) Motion for reference overruled, rule of reference enlarged, rule to produce books and papers, MS p. 9; (23) continued under rule of reference MS p. 30; (24) continued under rule of reference MS p. 48; (25) motion for reference MS p. 72; (26) dismissed as to Robert Abbott MS p. hi.
Papers in File: (i) Amended bill of complaint; (2) answer; (3) exhibits referred to in answer; (4) motion for reference; (5) discontinuance by Robert Abbott.
Chancery Case 28 of 1822. | [
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Journal Entries (1821): Journal3: (1) Rule for special bail or procedendo *p. 202; (2) motion for procedendo *p. 217-e; (3) rule for remand by procedendo *p. 217-i.
Papers in File: (i) Precipe for .habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) precipe to tax attorney’s fee.
1821 Calendar, MS p. 67. | [
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Journal Entries (1823): Journal3: (1) Motion to dismiss granted *p. 433.
Papers in File: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return.
1822-23 Calendar, MS p. 23. | [
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John McDonnell vs Henry Hudson
in case
The Defendant in the above Action by his Counsel moves the Court that the writ issued in the above action be quashed^ Because the def4 saith that the said writ of the Pltff. was issued by the Clerk on the 18 January 1817 without any precipie being filed by the Pltff to warrant the issuing thereof
McDougal & Sibley
And because the said writ since the issuing thereof has been altered and made to correspond with a paper said to be filed in sd Cause on the 22d of July 1817.
M°Dougall & Sibley
[In the handwriting of Solomon Sibley] | [
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Journal Entries (1819-22): Journal 2: (1) Continued *p. 676. Journal 3: (2) Continued *p- 157; (3) discontinued *p. 274.
Papers in File: (i) Precipe for capias; (2) capias and return; (3) sworn account; (4) declaration; (5) plea in abatement; (6) precipe for execution fi. fa.; (7) writ of fi. fa. for costs.
Office Docket, MS p. 53, c. 4. Recorded in Book A, MS pp. 335-441. | [
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Journal Entries (1823-25): Journal3: (1) Rule to assign errors *p. 398. Journal 4: (2) Judgment affirmed MS p. 33.
Papers in File: (i) Affidavit for certiorari, allowance; (2) copy of affidavit for certiorari; (3) precipe for certiorari; (4) writ of certiorari and return; (5) assignment of errors and joinder; (6) precipe for execution.
1822-23 Calendar, MS p. 141. Recorded in Book B, MS pp. 511-13. | [
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Journal Entries (1821-26): Journal3: (1) Appearance *p. 198; (2) motion to quash habeas corpus *p. 245; (3) continued *p. 259; (4) motion to quash habeas corpus withdrawn *p. 280; (5) referred *p. 328; (6) reference rescinded, referred *p. 353; (7) judgment on award *p. 366; (8) witness fees ordered paid *p. 367; (9) witness fees ordered paid *p. 367; (10) motion to set aside judgment and award *p. 411; (11) supersedeas set aside *p. 505. Journal4: (12) Motion for rule on sheriff to return alias fi.fa. MS p. 45; (13) sheriff ruled to show cause MS p. 96.
Papers in File: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4-5) pleas of non assumpsit; (6) demand for bill of particulars; (7) bill of particulars; (8) precipe for subpoena; (9) subpoena; (10) award of referees; (11) sheriff’s bill of fees; (12) precipe for execution fi. fa.; (13) writ of supersedeas; (14) precipe for execution fi. fa.; (15) motion for rule on sheriff to return execution.
1821 Calendar, MS p. 17. Recorded in Book B, MS pp. 55-60. | [
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Journal Entries (1821-22): Journal3: (1) Continued *p. 257; (2) rule to assign errors *p. 305; (3) rule to assign errors extended *p. 305; (4) motion for rule to amend return *p. 305; (5) motion for affirmance *p. 337; (6) death suggested *p. 337; (7) judgment of reversal *p. 367.
Papers in File: (i) Petition for certiorari and allowance; (2) affidavit for certiorari; (3) writ of certiorari; (4) transcript of J. P. record; (5) copies of advertisements concerning a lottery; (6) precipe for ca. sa. for costs; (7) writ of ca. sa. and return.
1821 Calendar, MS p. 44. Recorded in Book B, MS pp. 92-96. | [
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Journal Entries (1816-19): Journal 2: (1) Rule to declare *p. 510; (2) death suggested, proceedings stayed *p. 663.
Papers in File: (i) Precipe for capias; (2) capias and return. | [
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Papers in File (1824): (1) Precipe for habeas corpus; (2) letter from attorney to clerk.
1824-36 Calendar, MS p. 62. | [
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Journal Entries (1814-15): Journal 2: (1) Continued *p. 425; (2) continued *p. 440; (3) continuance rescinded, appearance, declaration filed, rule to plead *p. 444; (4) plea filed, issue *p. 458.
Papers in File: (i) Capias and return; (2) declaration, plea of nil debet. Office Docket, MS p. 1, c. 2. | [
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Journal Entries (1823): Journals (1) Appeal dismissed *p. 458.
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Papers in File (1817): (1) Capias and return. | [
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Journal Entries (1822): Journal y: (1) Rule for special bail or procedendo *p. 299; (2) time for filing declaration extended *p. 356.
Papers in File: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration; (5) precipe for discontinuance.
1822-23 Calendar, MS p. 17. Recorded in Book B, MS pp. 252-54. | [
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Territory of Michigan ss:
The Grand Jurors of the United States within and for the body of the Territory of Michigan upon their oaths present that Henry Hudson late of Detroit Inkeeper on the twenty third day of February in the year one thou sand eight hundred and fifteen, with force and arms, towit, at Detroit aforesaid, thirty pounds of iron of the value of forty shillings of the goods and chattels of one Richard Smith, by a certain ill-disposed person (to the said Jurors yet unknown) then lately before feloniously stolen by the same ill-disposed person, unlawfully and unjustly, and for the sake of wicked gain, did receive and have (he the said Henry Hudson then & there well knowing the said goods and chattels to have been feloniously stolen) to the great damage of the said Richard Smith and against the peace and dignity of the United States and of this Territory.
Chas Larned.
Atty for U States.
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Territory of Michigan IN SUPREME COURT
Andrew Westbrook vs William Austin & Rufus Hatch
Nar.
Andrew Westbrook complains of William Austin Sz Rufus Hatch, in Custody &c In a plea of Debt, for that the said Defts on the twenty eighth day of November in the year of our Lord one thousand eight hundred Sz eighteen, at the County of macomb Sz within the jurisdiction of this Court, Before one John K. Smith, a Justice of the Peace, within Sz for the County of Macomb, Sz Territory aforesaid, duly appointed Sz qualified, to do and perform all judicial Sz other acts, appertaining to said appointment Sz office, they the said Defts did then Sz there, towit, at the County of Macomb, aforesaid, enter into a recognizance before said Justice, wherein Sz whereby, they jointly Sz severally acknowledged themselves indebted to the Plaintiff in the sum of two hundred Sz four dollars Sz sixty cents, to the payment of which sum, they the said Defendants bound themselves, their heirs 8z assigns jointly Sz severally with the condition under written to said recognizance, a true Sz perfect record of which recognizance, duly Sz properly attested, by said Justice, is here in court to be produced — Which condition of the recognizance aforesaid, was, that if the said William Austin should well Sz truly prosecute, a certain suit or action, on which judgment had been duly Sz legally entered against the said William, before the Said John K. Smith, the day and year last aforesaid, at the County of Macomb aforesaid, wherein the said Westbrook was Plaintiff and the said William was defendant, for the sum of one hundred Sz two dollars Sz thirty cents for debt Sz costs, at the County Court for the County of Macomb, to be holden at mount Clemens on the first monday of February, next after the rendition of said Judgment to effect Sz abide the orders of said County Court therein, then the said recognizance was to be of no effect, otherwise to be Sz remain in full force effect Sz virtue — And the said Plaintiff avers that the said Wm nor the said Rufus, have in no wise complied with or kept the condition of the recognizance, so entered into as aforesaid by them, but the said Judgment of the said Justice, upon the entry of the same in the County Court of the County of Macomb aforesaid, upon a trial of said case, was then Sz there rendered Sz adjudged against the said William, the record whereof remains in said County Court, a transcript whereof is here in court to be produced for the sum of one hundred dollars Damages, and the costs of said suit taxed Sz adjudged to the said Plaintiff for the sum of thirty eight dollars Sz seventy eight cents. Whereupon the said Plaintiff on the twentieth day of October, in the year of our Lord one thousand eight hundred & nineteen, at the county of Macomb, sued out of the clerks office of the County Court of said County, his writ of Execution for the amount of his damages & costs aforesaid directed to the Sheriff of Said County, in favor of said Plf. ag* the said Def1 directing & commanding him, if the said William should be found in his county, to have him before the Judges of the County Court of said County, at this Term of said Court on the seventh day of February in the year of our Lord one thousand eight hundred & twenty which Execution, so sued out of the County Court of the County of Macomb aforesaid, was afterwards, on the said twentieth day of October, at said County, delivered by the Plaintiff into the hands of the Sheriff of said County, to be by him obeyed according to the tener therein expressed, which said Execution, afterwards, on the said seventh day of February, in the year of our Lord one thousand eight hundred & Twenty, at the county aforesaid, the same being the return day of said Execution to the County court of the County aforesaid as therein expressed the Said Sheriff of said County made due return of the Same, that he had made diligent search & could not find the body of the said William Austin, within his precinct whereon to levy said Execution, & therefore returned the Same wholly unsatisfied — whereby the condition of said recognizance is wholly broken & become forfeit, and the said Plaintiff thereby entitled to have & recover of the said William & Rufus the before mentioned Sum of two hundred & four dollars & sixty cents — And for their detention of the Same to his damage, five hundred dollars, & for the recovery of the Same he brings Suit
Andrew WestBrook puts in his place Hunt & Larned as his Attorneys to prosecute this Suit Hunt & Larned, Attys to Plf. | [
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Journal Entries (1815-19): Journal2: (1) Special bail *p. 451; (2) declaration filed, rule to plead, continued *p. 456; (3) settled out of court *p. 662.
Papers in File: (i) Precipe for capias; (2) capias and return; (3) declaration.
Office Docket, MS p. 11, c. 14; p. 36, c. 11. | [
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Journal Entries (1815-16): Journal 2: (1) Rule to bring body *p. 445; (a) special bail *p. 45 a; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 49a; (6) debt remitted, judgment for costs *p. 5ao.
Papers in File: (i) Capias and return; (a) declaration.
Office Docket, MS p. 17, c. 31. | [
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Journal Entries (1822-26): Journal j: (1) Motion to quash subpoena *p. 298. Chancery Journal: (2) Leave given to file amended bill *p. 55. Journal j: (3) Motion to quash subpoena *p. 438; (4) rule to file supplemental bill and answers *p. 462; (5) leave to refile bill *p. 497; (6) motion for rule to answer *p. 509; (7) time given to answer or demur *p. 514. Journal4: (8) Continued MS p. 72; (9) dismissed MS p. 105.
Papers in File: (i) Writ of subpoena; (2) motion to quash subpoena; (3) bill of costs.
Chancery Case 33 of 1822. | [
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Journal Entries (1823-30): Journal 3: (1) Bail waived, appearance *p. 397. Journal 4: (2) Motion for judgment MS p. 21; (3) continued MS p. 93; (4) continued MS p. 228; (5) continued MS p. 278; (6) continued MS p. 321; (7) discontinued MS p. 359; (8) motion for judgment for costs MS p. 362; (9) judgment for costs MS p. 364.
Papers in File: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit, notice of demand for bill of particulars; (5) motion for judgment for costs; (6) precipe for execution fi. fa.; (7) writ of fi. fa. and return.
1822-23 Calendar, MS p. 128. | [
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[OPINION]
This is a case of Hab. Corpus; in which James Fulton petitions to be discharged from imprisonment on a Capias ad satisfaciendum Issued from Wayne County Court —
It appears that on the 13th day of Jany 1823, Joseph Campau recovered a Judgment on Contract in said County Court against James Fulton for the Sum of $410.57. Damages, and $16.25. Cost ■— That on the 14th day of June following, being within one year and one day, after the rendition of said Judgment, a Capias ad Satisfaciendum was Issued thereon against said Fulton — which was, on the 16th day of the same Month, returned with non est inventus —
That on the 13th day of August 1824 an Alias Capias was Issued on said Judgment, on which the said Fulton was commited, and still stands com-mited, from which commitment he petitions to be discharged, alledging for cause, that by the Common Law, Execution cannot Issue after one year and one day after the rendition of the Judgment on which it is founded without the intervention of a Scirefacias — for which reason, in as much as the said Alias Execution did not Issue untill more than one year and one day after . the return of the first Execution, the commitment is contrary to the provision of the Common Law — and there being no statutory Authority on the Subject, the commitment is illegal, therefore the said Fulton ought to be discharged from it —
In resisting the Application, Mr Larned, for the Creditor on the ground of the alias Execution having been Issued more than a year & a day after the return of the first Execution, admits the fact, but denies its legal application —
And offers the Authority of Sir William Blackston Vol. 3d page 420 to shew, that by the Ancient common Law of England, no Ca. Sa. could Issue on Judgments in Civil Cases —
Unquestionably this was once the Law of England on that Subject — but when the feudal reason which introduced it yealded to a more enlightened, and rational policy, those exemptions were restricted by the Statute of Edward the 3d although those exemptions were wholly in favor of the Crown, and not of the Subject — and the body of the Subject was made liable as well as his property to Execution for his debts — as the reason for such exemption there has long since ceased; and at no period ever existed in this Country, it cannot in this case be regarded as law —
This part of the Question being thus disposed of I proceed to the consideration of the Second part of it — that is the right of the Creditor to an Alias Execution, after a year and a day has elapsed after a non est in-ventus return on the first Execution, without the intervention of of a Scirefacias ■—•
The Authorities cited on the hearing of the case fall very far short in their application to the present question — they are adapted to a System of Jurisprudence so totally dissimilar to those of the United States, that it is impossible that they should apply —
But if any doubt could rest on the mind as to the exemption of the body from Execution in Civil Suits under the old common law, that doubt must be dissipated as it respects its application in this Territory by a reference to our own Territorial Statutes on the Subject of Executions on Judgments in Civil cases — for the practice is abundantly recognized in an Act concerning poor Debtors — page 133 — and by an Act to regulate and define the duties and powers of Justices of the peace, and Constables in civil cases, page 226.
It only remains to enquire whether the law is imperative on the Creditor after a Non est inventus return on a first Execution taken out within a year and a day after the rendition of a Judgment, to continue taking out Subsequent Executions within a year and a day to save his lien on the Judgment, without resorting to a Scirefacias —
In examining which, the mind perhaps is left too much without a legal guide, applicable to our own institutions ■— in the absence of which, the general texture of our Judicial Systems, growing out of, and founded on, the customary intercourse, and habitual views under which our Citizens carry on their commercial concerns in ordinary dealings must be the best guide — We have hence to conclude, that prudent men will shape their contracts to their abilities, under the provision of laws extant at the time of their formation — he, who by entering into an engagement becomes the Debtor, can calculate on all the consequences which can await the want of punctuality in the discharge of his debt — well aware that in the last resort it Subjects his body to incarceration.
The Creditor on the other hand incurs the hazard of his Debtors insolvency, on indisposition to discharge the demand without legal coercion — and as the Creditor has in the outset the sole right to give, or refuse the Credit, when he has given it, he rarely needs any other Stimulous than that of his own Interest, in the pursuit of payment — as he certainly possesses the moral and legal right to forgive the whole debt, does he not equally possess a moral right to pursue the most lenient and humane course that the law allows towards his debtor? one of which, is an extension of time, beyond that in which, by the most rigorous pursuit, he might have inforced payment, without being thereby Subjected to an inconvenience, which is of no sort of use to the Debtor, but an unnecessary expense to both? I here allude to a Scirefacias in obtaining a Second Execution.
perha[p]s there is not a more equitable maxim in law, than that the indulgence of a Plaintiff shall not turn to his prejudice, nor the Defendant be allowed any advantage of it —
As it is the duty of the Debtor to discharge the demand, it is within his legal power to avoid either Execution, or Scirefacias — I can find but one Solitary reason assigned for a Scirefacias on a Judgmint of Debt; which is, that if Execution be not taken out within a year and day after Judgment rendered, the Court concludes, prima facie, that the Judgment is satisfied —- Thus it appears that this rule of law, if law it be, has no other reason, or foundation, than the conjecture of the Judges of the Court where the Judgment is rendered — but suppose it to be reasonable law, it does not appear to relate to anything but the first Execution to be taken out on a Judgment — leaving it Optional with the Creditor when he will take out Subsequent Executions till the Judgment be satisfied — and leaving to the Debtor at all times his Audita Qurela to Supersede the operation of any Execution, after the Judgment is satisfied —
Having bestowed such attention to the Subject, as time, & means have afforded me, I have arrived at the conclusion, that the return to the Writ of Hab. Corp is sufficient — that the Creditor has proceeded as by law he had a right to, in taking out the Alias Capias ad Satisfaciendum, and therefore, the Debtor must be remanded —
J. WlTHERELL
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Journal Entries (1814-19) -.Journal 2: (1) Rule to take depositions *p. 424;
(2) continued *p. 440; (3) continued *p. 472; (4) discontinued *p. 660. Papers in File: (i) Indictment; (2) capias sur indictment and return. Office Docket, MS p. 4, c. 11; MS p. 41, c. 55. | [
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Journal Entries (1820): Journal 3: (1) Declaration filed, cognovit, judgment *p. 86.
Papers in File: (i) Warrant of attorney to confess judgment; (2) declaration and cognovit; (3) precipe for execution fi. fa.; (4) writ of fi. fa. and return; (5) precipe for alias fi. fa.; (6) alias fi. fa. and return; (7) writing obligatory.
Case 8 of 1820. | [
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William Morris v. Ezra Baldwin
Territory of Michigan
In Replevin supreme court of the term of sep-tember, in the year of our lord one thousand EIGHT HUNDRED & TWENTY THREE
Ezra Baldwin was summoned to answer to William Morris, of a plea, wherefore he took the goods & chatties of the said William Morris & unjustly detained the Same, against Sureties & pledges until &c And thereupon the Said William Morris, by Hunt & Larned his Attorneys, complain for that the Said Ezra Baldwin on the first day of August in the year of our Lord one thousand eight hundred & nineteen, at the County of Macomb, and within the Jurisdiction of this Court, took the goods & chatties, to wit, six cows & three Steers, & three calves of him the Said William Morris, of great value, towit of the value of two hundred dollars, and unjustly detained the Same — Until &c Wherefore the Said William Morris says he is injured & sustained damage to the value of two hundred & fifty dollars — And therefore he brings Suit &c
William Morris puts in his place Hunt & Larned as his Attorneys against Ezra Baldwin to prosecute this Suit in a plea of replevin
Hunt & Larned, Attys to William Morris | [
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Journal Entries (1822): Journal 3: (1) Dismissed *p. 296. Chancery Journal: (2) Dismissed *p. 55.
Papers in File: [None]
Chancery Case 23 of 1821. | [
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Papers in File (1823-24): (1) Precipe for summons; (2) summons; (3) discontinuance.
1822-23 Calendar, MS p. 144. | [
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Journal Entries (1822-23): Journal3: (1) Motion for bail or procedendo *p. 330; (2) time for filing declaration extended *p. 360; (3) motion to dismiss granted *p. 433.
Papers in File: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return.
1822-23 Calendar, MS p. 66. | [
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Journal Entries (1823): Journal3: (1) Discontinued by consent *p. 451.
Papers in File: (i) Precipe for writ of error and supersedeas; (2) writ of error; (3) transcript of county court record; (4) certificate of bail in error.
1822-23 Calendar, MS p. 155. | [
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Journal Entries (1822-33): Journal3: (1) Continued *p. 296. Chancery Journal: (2) Continued *p. 55. Journal3: (3) Bill taken as confessed, referred to master *p. 510. Journal 4: (4) Leave given to amend bill MS p. 9; (5) motion to quash subpoena MS p. 14; (6) subpoena quashed MS p. 28; (7) master to take evidence and make report MS p. 59; (8) motion for leave to take deposition MS p. 86; (9) leave given to take deposition MS p. 86; (10) rule to answer or demur, continued MS p. 104; (11) motion to take bill pro confesso MS p. 126; (12) motion for leave to file answers MS p. 127; (13) leave given to file answers MS p. 131; (14) referred to master MS p. 144; (15) motion for hearing MS p. 181; (16) motion for further time to take testimony overruled, case set for argument, evidence heard MS p. 213; (17) exception to depositions overruled, argument heard, case submitted MS p. 214; (18) motion to open case for further testimony and argument MS p. 248; (19) motion to open case overruled MS p. 257; (20) opinion pronounced, decree ordered MS p. 305; (21) decree MS p. 308; (22) motion for leave to appeal to U. S. Supreme Court MS p. 313; (23) decree presented and signed MS p. 314; (24) appeal allowed on giving security MS p. 315; (25) transcript of order of U. S. Supreme Court MS p. 521; (26) decree for execution for costs MS p. 528.
Papers in File: (i) Motion for extension of time to plead, answer or demur; (2) transcript of order of U. S. Supreme Court dismissing appeal; (3) writ of fi. fa. for costs; (4) letter from clerk of U. S. Supreme Court re execution for costs; (5) receipt for attorney’s fee; (6) receipt for costs; (7) receipt for witness fees.
Chancery Case 26 of 1822. | [
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Journal Entries (1824-26): Journal 3: (1) Rule to show cause against procedendo *p. 484. Journal 4: (2) Rule for judgment for costs MS p. 95.
Papers in File: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) demurrer; (5) joinder in demurrer; (6) satisfaction piece; (7) memo, re payment of fees; (8) receipt for attorney’s fee; (9) writ of ca. sa. for costs, receipt; (10) memo, re credit for payment of costs.
1824-36 Calendar, MS p. 34. | [
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Journal Entries (1823-28): Journal j: (1) Leave to take deposition *p. 437; (2) bill dismissed *p. 496. Journal 4: (3) Special master appointed, witness sworn MS p. 63; (4) witnesses sworn MS p. 64; (5) motion to dismiss, witness sworn MS p. 65; (6) witnesses sworn MS p. 65; (7) attendance of witness proved MS p. 67; (8) continued under advisement MS p. 72; (9) bill dismissed MS p. 105; (10) motion for rehearing, petition filed MS p. 113; (11) rehearing granted MS p. 123; (12) motion to rescind order for rehearing and to make decree absolute MS p. 133; (13) motion for leave to amend bill denied, order of rehearing rescinded, decree made absolute MS p. 165.
Papers in File: (i) Bill of complaint; (2) precipe for writs of subpoena; (3-4) writs of subpoena; (5) precipe for writ of subpoena; (6) writ of subpoena; (7) sheriff’s bill of fees; (8) petition to examine witness de bene esse; (9) affidavit to examine witness de bene esse; (10) copy of interrogatories to Joseph Baron; (11) answer of William Woodbridge; (12) motion that bill be taken as confessed, etc.; (13) answer of James May; (14) precipe for subpoena; (15) subpoena; (16) precipe for subpoena; (17) subpoena; (18) replication; (19) copy of interrogatories to Jacques Peltier; (20) deposition of Joseph Baron; (21) deposition envelope; (22) deposition of Jacques Peltier; (23) deposition envelope; (24-25) subpoenas; (26) answer of Joseph Beaubien; (27) answer of St. Mark Beaubien; (28) motion to dismiss bill; (29-31) subpoenas; (32-41) depositions of James Abbott, Gabriel Richard, John Hunt, Abraham Edwards, James McCloskey, Peter Audrain, John J. Deming, Gabriel Godfrey, Jr., Antoine Baron and Robert Abbott, respectively; (42) master’s fee bill; (43) deposition of John J. Deming; (44) claim for attendance as witness; (45) draft of decree; (46) petition for rehearing; (47) receipt for sheriff’s fee; (48) receipt for witness fee; (49) motion to amend bill; (50) draft of order denying motion to amend; (51) affidavit of nonperformance of condition in decree; (52) motion that decree be made absolute; (53-54) drafts of decree; (55) fi. fa. for costs; (56) bill of costs; (57) bill of costs and receipts; (58) receipt for costs; (59) bill of costs; (60) power of attorney—Joseph Beaubien to James May; (61) lease—William Wood-bridge to James May; (62) letter from Joseph Beaubien to James May; (63) translation of letter from Joseph Beaubien to James May.
Chancery Case 29 of 1822. Recorded in Chancery Journal (printed in Yol. II), *pp. 85-124. | [
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Papers in File (1816): (1) Precipe for process; (2) precipe for capias; (3) capias and return; (4) precipe for attachment; (5) affidavit for attachment; (6) writ of attachment and return. | [
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SUPREME COURT OF TERRIT Michigan Territory
Geo. M°Dougall and. Charles Poupard dit Lafleuer vs— Hysth Des Gerdin, administrator of John B. Alloire Dit Lapiere
Appeal from Decree of Chs Larned Esqr Register &c entered &c
And the sd Hysth Des Gerdin Admr &c appellant, comes and says, that the Decree above by the Register entered, & appealed from, by the sd Francis, ought not to be confirmed, But that the same ought to be reversed and annulled by the Judgment of this Court
1 Because said Decree, does not follow or conform to the agreement, entered into in writing betwen the said Alloire, deceased and the said Poupard, mentioned in the Petition &c
2d Because other and irrevelent matter, not mentioned in such agreement in writing, is introduced into and made part of the decree
3d Because, George McDougal Esqr is made party in said Judgment and Decree, altho no contract in writing or privity of Contract, was ever made or existed, betwen the said Alloire, deceased & the sd George McDougall, sufP to found a decree of Judgement on.
4. Because, the interest and rights of the minor children, Heirs at Law of said Alloire deceased, are wrongfuly sacrificed by said Decree and Judg1
5. Because the decree is founded on an ex parte Survey of the Land mentioned in sd Judgment, of the making whereof no notice was ever given the sd Francis Admr
Because, in the proceedings before the sd Register and in the passing the decree and judgment there is manifest error.
Wherefore the sd Francis Prays Judgment and that the Judg* and decree above may be reversed annuled and set aside &c.
Sol Sibley Aty
for Appellant.
In nullo est Erratum
Poupard & McDougall
Complainants
[In the handwriting of Solomon Sibley]
[In the handwriting of George McDougall] | [
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Journal Entries (1815-18): Journal2: (1) Judgment *p. 479; (2) declaration on scire facias filed *p. 598; (3) rule to plead *p. 599; (4) judgment *p. 614.
Papers in File: (i) Summons; (2) draft of judgment; (3) precipe for execution fi. fa.; (4) precipe for scire facias; (5) writ of scire facias and return; (6) narr. on scire facias; (7) writ of fi. fa. and return.
Office Docket, MS p. 14, c. 22; p. 37, c. 18; p. 43^, c. 2. | [
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Journal Entries (1817-18): Journal 2: (1) Appearance *p. 536; (2) declaration filed *p. 586; (3) plea filed, issue *p. 594; (4) leave to withdraw plea, oyer of writ and declaration granted *p. 594; (5) plea filed *p. 596; (6) rule to reply or demur *p. 596; (7) plea withdrawn, motion to quash proceedings denied *p. 597; (8) second plea filed, motion to amend declaration granted, plea withdrawn, continued *p. 598; (9) discontinued *p. 603.
Papers in File: (i) Affidavit and precipe for attachment; (2) writ of attachment; (3) capias and return; (4) bail bond; (5) motion to quash writ; (6) declaration; (7) plea in abatement; (8-9) subpoenas.
Office Docket, MS p. 45, c. 3. | [
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Territory of Michigan SUPREME COURT
Benjamin F. Larned vs William G Taylor Wolcott Lawrance & Benjamin Davis Gent
Take Notice, That pursuant to an act of this Territory entitled “an act to abolish imprisonment for debt in certain cases and for other purposes” and the amendments thereof— I will on the Twenty fifth day of December next ten oclock in the fore noon of that day on appraisal — according to the act aforesaid, Sett off to Benjamin F Larned Plaintiff in the above suit the Real Estate herein after mentioned — or so much thereof as will be sufficient to satisfy and discharge the Judgment and costs in favour of said Plaintiff against William G Taylor — Wolcott Lawrance & Benjamin Davis defendants in the suit aforesd
Upon which Judgment an Execution hath issued and I am committed to the Jail in and for the County of Monroe in the Territory aforesd by Virtue thereof — To wit Lots No 91 and 13a and the North halves of Lots No 92 and 131 — situate in the Village of Monroe in the County and Territory aforesaid — being the same on which I now reside — Bounded as follows on the West by McComb Street — on the North by Lots No. 90 — & 133 — on the East by Francis Navarres west line — on the south by the south halves of Lots No — 131 — & 92 —
Monroe Nov 21st 1822
To Messrs Hunt & Larned Representatives & Atty1 for the above Plaintiff
^ ^AYLOR
[In the handwriting of William G. Taylor] | [
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Journal Entries (1821-25): Journal 3: (1) Commission to take deposition allowed, etc. *p. 243; (2) continued *p. 263; (3) motion for judgment for execution granted *p. 350; (4) motion to set aside supersedeas *p. 430; (5) supersedeas set aside, motion to set aside judgment *p. 505. Journal 4: (6) Motion to set aside judgment or for leave to defend MS p. 53; (7) motion to set aside judgment, etc., overruled MS p. 69.
Papers in File: (i) Precipe for scire facias; (2) writ of scire facias and acknowledgment of service; (3) interrogatories to John Barclay and commission to take his deposition; (4) declaration; (5) plea of payment; (6) copy of interrogatories to, and affidavit of John Barclay; (7) motion for judgment; (8) precipe for execution fi. fa.; (9) writ of fi. fa. and return; (10) affidavit for supersedeas, allowance; (11) affidavit of Richard Smyth; (12) affidavit of Samuel T. Sutliff; (13) writ of supersedeas; (14) deposition of John Barclay; (15) receipt for notes and due bills.
1821 Calendar, MS p. 85. Recorded in Book B, MS pp. 175-79. | [
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Territory of Michigan to wit in the supreme court of the territory OF MICHIGAN OF THE TERM OF SEPTEMBER ONE THOUSAND EIGHT HUNDRED SIXTEEN.
[seal] To Robert Richardson Esquire, or any Judge, or Justice of the peace residing in the province of upper Canada authorized by law to administer oaths.
Whereas a rule of the Supreme Court was granted to authorize the taking evidence and depositions de bene esse of Witnesses residing out of the territory, on giving reasonable Notice to the opposite party of the time and place of taking the Same; NOW this is to authorize you, the Said Richardson, or any judge or Justice authorized by law to administer oath, as aforesaid, to take and transmit, under your hand and Seal, to the Supreme Court of the territory of Michigan, to be holden at Detroit, on the third Monday in September next, Such depositions and evidence as Shall be made before you touching the merit of the above Cause; and for your So doing this will be your Sufficient Commission
In testimony whereof I have hereunto Set my hand, and affixed the Seal of the Said Supreme Court this fourth day of August one thousand eight hundred Seventeen. Peter Audrain
Clk. S.C.T.M.
[.Attached to the foregoing]
UPPER CANADA western district towit
Personally appeared before Mr Rob* Richardson Esqr one of his Majestys justices Assigned to Keep the Peace in The Said District, Thomas Elliott of the Town of Amherst-burg, Shoemaker in said District, of lawfull age, who being duly sworn, de-poseth and sayeth, That on or about the 27th day of March 1815: he the deponent was standing in the Street of Amherstburg in Said District, That while Standing there in company with others, he Saw Major Puthoff then commanding the United States troops, at that time in possession of Said Town, at the head of a party of soldiers about Six or Eight, go up to the front door of of the Dwelling house of Dan Ames a Citizen of the United States, at the time living in said Town of Amherstburg with his family and knock at the door of Said house, then steppd back, and with his foot forced the door open The Said Puthoff went into the House with the soldiers and the soldiers rolld out at the Door two Barrels of whisky and a keg of cherry Bounce, and placed a guard over the Said liquor. That after a Cart and Horse arrived, and Said Puthoff caused Two Barrels of the Whisky to be put into it, the heads cut with an ax — The cart was then drove Through the streets untill the whiskey had all run out — The Said Puthoff following the Cart — The cart then returned and two other Barrels were put into it, also the keg of Bounce — The Heads cut the Same as the first and the cart drove about as before untill the whole was run out and destroyed — during this Transaction Mr Ames was absen at the new Settlement some distance from Amherstburg About Two days after the whisky was taken and spill’d The Deponent saw Major Puthoff come down the Street, to the house of Said Ames with a party of soldiers (Said Ames Still absent) and into the Said House, and put out the Wife and family of Said Ames, together with their furniture into the Street, it raining hard at the time Mr Ames called on the Deponent and requested him to take charge of their property, which he declined but Sent his young Man to inform Mr: James Chittenden — That Shortly after a Mr Wm Smith came up with his Waggon and took the furniture Away — That at the time Mrs Ames was turned out into the Street there was in the Town a large Quantity of Corn and wheat. The property of Said Ames — That Said Puthoff, as the Dep1 understood and believes, ordered the Said Ames wife and family to leave the Town of Am-herstburg, and not to appear within Two miles of the Said place under penalty of being put into the guard House — The Said Ames afterwards came into Amhurstburg whilst Said Puthoff commanded, and was actually put into the Guard house by his order — and while there he the dep* visited him — That The Said Barrels of Whisky were of the Common Size — he Supposes would contain about Thirty Three or four gallons That The Keg appeared of The Size of Eight gallons but understood at the time The liquor was spilld That it was not quite full — That The whisky was worth Two dollars a gallon It was selling commonly for That price at the time
Says further That the house which Ames occupied was the property of James Chittenden
Says that when Ames’s wife and family were turned out of the house Major Puthoff took charge of it and loked it up Ames’s goods remaining in it — and further the deponent Sayeth not
Thos Elliott
At the Same time and place personally Appeared John McDonald of Am-herstburg of lawfull age, who being duly Sworn deposeth and Sayeth, That he was present standing in the Street of Amherstburg, when Major Puthoff with a party of Soldiers (as Stated in Ths Elliotts Deposition) came to the house of Dan Ames and rolld out four Barrels and a Keg of Liquor, and which was distroyed and spilld in the Street of Said Town — in manner fully stated by Said Elliott in his deposition — Says further That a short time afterwards he saw the furniture of the said Ames in the public street which he understood had been turned out by Major Puthoff on his order — further the Deponent Sayeth not John McDonald
Also appeared Daniel Botsford who being duly Sworn deposeth and Say-eth, That he was employd by Dan Ames to remove his property to Mr Chit-tendens house, some time about the middle of March 1815 — among this property there was a quantity of grain — both wheat and Corn — does not know positivly, but thinks There was upwards of one hundred Bushels of Each he was employd, with a horse and Cart The best part of Two days in removing it from one house to another — Says further That he Saw Ames furniture in the Street, which he undrood had been turned out by Major Puthoffs orders ■—■ That he went down by Direction of the first Deponent Elliott, to Mr James Chittenden who Sent up Mr Mirkle with a horse to take them away ■— Says that he afterwards Saw Some of the American officers living in the house — Says that he heard that a number of Barrels of Liquor were taken out of Ames house and destroyd, by Major Puthoff — but he Saw nothing of the Transaction being out of Town at the time — and further this Deponent Sayeth not
Daniel Botsford
Question by Mr. Sibly to Ths Elliott — what was the Value of Corn and Wheat pr Bushel at the time this transaction took place — ? Answer — in the fall of 1814 corn was selling for nine shillings — and wheat from 14 to fifteen shillings per Bushel in hard Money — in the spring of 1815 — grain was very Scarce and was of course worth more on being ques-tind whither he has any Knoledge That Ames Sold liquor to Soldiers, he Says he has not — but That he was in the habit of Selling them Butter, Cheese — Cake &c
Thos Elliott
The Above three depositions made Subscribed and sworn to before me the Subscriber the Eleventh day of September one thousand Eight hundred and Seventeen at the house of William Searl in Amherstburg between the hour of one and Two oClock in the Afternoon of The said day under the authority of the Annexd rule of the Supreme Court of the United States, Territory of Michigan, and to be read on Trial of an Action pending in Said Court wherein Dan Ames is Plaintiff and Wm H. Puthoff is Defendant — Taken at the Instance of Said Dan Ames Sol. Sibly Esqr appeared and was present at the taking of the Said depositions — The Said Puthoff did not appear or any attorney on his behalf
R. Richardson
J.P.Wn District Upper Ca
[Indorsement]
N° 9 N° 9
Ames v. Puthuff
opened in Court
15 Septber - 1817.
N° 1.
[In the handwriting of Peter Audrain] | [
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Journal Entries (1822): Journal3: (1) Default judgment *p. 303.
Papers in File: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3-4) agreements of parties; (5) precipe for execution ca. sa.; (6) satisfaction piece; (7) promissory note.
1822-23 Calendar, MS p. 52. Recorded in Book B, MS pp. 180-81. | [
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Journal Entries (1823): fournal3: (1) Continued *p. 442.
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Journal Entries (1819): Journal 2: (1) Leave to amend notice denied, tenants in possession ruled to show cause, etc. *p. 670; (2) motion that rule be made absolute overruled *p. 689; (3) motion that notice be deemed sufficient overruled *p. 725; (4) declaration filed, motion for rule on tenants to appear and to enter into consent rule *p. 747. Journal 3: (5) Motion overruled *p. 42.
Papers in File: [None]
Office Docket, MS p. 82, c. 19. | [
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Journal Entries (1818-22): Journal 2: (1) Continued *p. 586; (2) continued *p. 675; (3) motion made to set aside continuances *p. 719; (4) reasons for motion, motion overruled *p. 719. Journal j: (5) Case as signed *p. 82; (6) motion to quash certiorari *p. 233; (7) motion to quash certiorari overruled *p. 236; (8) motion to quash indictment “A” *p. 236; (9) argument postponed, continued *p. 250; (10) indictments quashed *P-375-
Papers in File: (i) Precipe for habeas corpus and certiorari; (2) writ of certiorari; (3) writ of habeas corpus; (4) precipe for subpoena; (5) subpoena; (6) rule on attorney general; (7-8) subpoenas; (9) letter from John Hunt to Charles Larned; (10) precipe for subpoena; (11) subpoena; (12) notice of motion to quash indictments; (13) transcript of recognizance; (14) indictment “A”—C. C. file 78; (15) indictment—C. C. file 78; (16) indictment—C. C. file 81; (17) indictment—C. C. file 81; (18) indictment —C. C. file 82; (19) indictment—C. C. file 82; (20) indictment—C. C. file 83; (21) indictment—C. C. file 83.
Office Docket, MS p. 62, cases 1 and 2; p. 66, c. 3. | [
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Supreme Court.
George Johnston ads. Louis Grignon
Appeal from the Court of the county of Michili-mackinac
Motion by Defts. Atty. that the judgment of the Court below be reversed.
,St 1“ The Court below had not jurisdiction of the case.
It is an action of trespass quare clausum fregit, alledged and charged in and by the declaration to have been committed at Green Bay in the County of Brown; and hence the said court could in no manner take cognisance of, try and render judgment in, said action, being Statute limited in their jurisdiction to the County of Michilimackinac.
“Wherever the cause of action must necessarily have arisen in any particular county, or wherever the parties to the suit become such by mere privity of estate, as it is called, such action is local, and must be brought in that county where the cause of action arose.” “With respect to the first part of this definition, it may be easily understood; and it is obvious, that it must comprehend all actions where the possession of the land is to be recovered, as ejectment and the like; and also where any actual trespass or waste has been committed on any premises; &c”
“The action of trespass quare clausam fregit, is a local action, and consequently the venue must be laid in the county where the land lies.”
Trespass committed in Canada, action brought in England — held not maintainable.
This error of instituting the action in a wrong County, may be taken advantage of after the general issue plead, in any manner to arrest the judgment. It is a good ground for non-suit.
“If the action be really local, and the venue be not of the proper county, should it appear on the face of the declaration, it would be demurrable to; or if it is proved on the trial, the plaintiff will be nonsuited.”
2nd It is not stated positively in the declaration that the plff. owned, or was in possession of the premises at the time of the alledged trespass.
He could not have been the owner, because the Lands at Green Bay have never been confirmed to the persons in possession, and the title still rests in the Government of the United States.
“Being founded on an injury to the possession, it is essential that the defendant should be in possession of the close at the time when the injury is committed.”
This court cannot presume the possession proved in the court below, because it was not stated in the declaration — unless averred it could not be proved.
3d The Seal of the court below was not affixed to the writ in this case, and hence the arrest was illegal. J. D. Doty
Octr 17. 1820. Atty. for Deft.
[In the handwriting of James Duane Doty] | [
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Territory of Michigan to wit
The Grand Jurors of the United States within & for the body of the Territory of Michigan upon their oaths present, That Alexander T. E. Vidall Lieu* in the Naval service of his Brittannic Majesty, on the fifth day of September, One thousand eight hundred and fifteen, with force and arms in the District of Detroit and Territory of Michigan in and upon One Thomas Ramer in the peace of God and the United States then and there being did make an assault; and him the said Thomas Ramer then & there did beat wound & ill treat, so that his life was greatly despaired of, and him the said Thomas Ramer then & there unlawfully and injuriously against the will and without the consent of the said Thomas Ramer without any legal warrant authority or justifiable cause whatsoever did detain and unlawfully deprive of his personal liberty, and other wrongs to the said Thomas Ramer then and there did to the great damage of the said Thomas Ramer & against the peace and dignity of the United States and this Territory. And the Jurors aforesaid upon their oaths aforesaid do further present. That the said Lieutenant Alexander T. E. Vidall on the fifth day of September, One thousand Eight hundred & fifteen with force and arms in the District of Detroit in the Territory of Michigan in & upon the said Thomas Ramer in the peace of God and the United States then & there being did make an assault and other wrongs to the said Thomas Ramer then and there did to the great damage of the said Thomas Ramer and against the Peace and dignity of the United States and of this Territory.
Chas Larned
Atty for U S. T. M.
[In the handwriting of Charles Larned] | [
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Journal Entries (1822): Journal3: (1) Plea of guilty, submitted *p. 317; (2) witness sworn *p. 326; (3) sentence *p. 377.
Papers in File: (i) Indictment; (2) capias sur indictment and return. | [
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Journal Entries (1821-27): Journal3: (1) Leave to withdraw declaration *p. 199; (2) continued *p. 260; (3) referred *p. 280; (4) rule of reference extended *p. 343; (5) continued *p. 426; (6) referred *p. 492. Journal 4: (7) Rule of reference extended MS p. 93; (8) dismissed MS p. 140.
Papers in File: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit, notice of set off, demand for bill of particulars; (5) precipe for subpoena; (6) subpoena; (7) agreement for reference; (8) memo, re settlement; (9) statement of accounts.
1821 Calendar, MS p. 29. | [
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Journal Entries (1815): Journal 2: (1) Plea, jury trial, verdict *p. 459; (2) sentence *p. 478.
Papers in File: (i) Warrant for arrest; (2) recognizance to appear; (3) indictment; (4) capias and return; (5) subpoena. | [
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Journal Entries (1819-22): Journal 2: (1) Appearances *p. 687; (2) continued *p. 718. Journal 3: (3) Continued *p. 64; (4) motion for commission to take depositions *p. 166; (5) motion for continuance granted *p. 171; (6) witness fees ordered paid *p. 174; (7) rule for judgment *p. 302.
Papers in File: (i) Writ of certiorari; (2) writ of habeas corpus cum causa; (3) bond to appear, etc.; (4) transcript of county court record; (5) county court deposition of Thomas Cory; (6) county court deposition of Thomas Miller; (7) precipe for commission to take depositions; (8) depositions of Henry Atkinson, James Fergus, William Tullís, Samuel Smith, John H. Crawford and Joseph H. Crane; (9) deposition of John Johnston; (10) precipe for subpoena; (11) subpoena; (12) certificate as to Mrs. Desire West’s health; (13) precipe for subpoena; (14) subpoena; (15) certificate as to Mrs. West’s health; (16) affidavit for continuance; (17) deposition of Thomas Cory; (18) deposition of Thomas Miller; (19) deposition of Oliver Williams; (20) deposition envelope; (21) plea and notice; (22-23) precipes for subpoenas; (24) affidavit of Thomas Miller.
Office Docket, MS p. 92, c. 39. Recorded in Book A, MS pp. 362-86. | [
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Journal Entries (1818): Journal 2: (1) Discontinued *p. 599.
Papers in File: (i) Declaration.
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Territory of Michigan in SUP. COURT
Oliver Miller Conrad Ten Eyck & Robert Smart v. Austin E. Wing Debt on Bond
And the Said Austin E. Wing by, Woodbridge & Lanman, and Hunt & Larned his attornies, comes into court, & gives notice to the Plaintiffs that he prays oyer of the Bond declared upon by the Plaintiffs
Detroit Octr 7. 1821
[.Attached to the foregoing\
Know all men by these presents that I Austin E. Wing am holden and firmly bound unto Henry Hudson in the sum of five thousand dollars to be paid to the said Henry Hudson his certain Attorney Executors and Administrators: for the true payment whereof I bind myself, my heirs Executors and Administrators firmly by these presents. Sealed with my seal and dated the third day of December in the year of our Lord one thousand eight hundred and sixteen.
The Condition of this obligation is such, that whereas I the said Austin E. Wing have this day bought of the said Henry his Mansion house in the City of Detroit, together with all its appertenances & certain other tracts and parcels of ground for which the purchase Money is either paid or secured to be paid except the sum of two thousand five hundred dollars, to be paid as herein after stated: and whereas the wife of said Henry has not yet conveyed to the said Austin her right of dower in the premises, nor the title to one of the lots which is yet in her, but is yet to do it, now therefore, if the said Austin E. Wing, his heirs Executors or administrators do and shall well and truly pay or cause to be paid unto the said Henry his Executors administrators or assigns on or before the first day of January one thousand eight hundred and eighteen, the sum of one thousand dollars, and also, if he do well and truly pay or cause to be paid as aforesaid to the said Henry his Executors Administrators or assigns one other sum of one thousand dollars on or before the first day of January A.D. one thousand & eight hundred and nineteen, — And also if he the said Austin his heirs Executors and Administrators do pay or cause to be paid to the said Henry his Executors, Administrators or assigns the further sum of five hundred dollars on or before the first day of January A.D. one thousand & eight hundred and twenty.—the said Henry first causing to be conveyed to the said Austin his heirs and assigns the said title and right of dower of his said wife in and to said property so as aforesaid sold bargained for or conveyed before the said Austin his heirs or assigns to be holden and required to pay said several sums or any of them, which said sums to be paid (said conveyance by the wife of said Henry being first completed according to law) at Detroit, on demand, after the said several days and terms—Then this obligation to be void and of no Effect—Otherwise to be and remain of full form and virtue.
Signed, sealed and delivered on the day and year above written, in presence of
Sol Sibley
Austin E. Wing (Seal)
Recd on this Bond on the day of Execution ) three hundred & thirty five dolls 30 Cts. /
Detroit Decr 3, 1816. I, the undersigned do hereby obligate myself for & in behalf of the above Named Austin E. Wing, for the full compliance of the said Austin with the provisions and Conditions which are thereby Imposed upon him to perform
(Signed)
Wm Woodbridge (Seal)
Sol Sibley | [
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Journal Entries (1819-24): Journal 2: (1) Rule to declare, continued *p. 677; (2) special bail *p. 727. Journal3: (3) Motion for rule to plead overruled *p. 208; (4) leave to file plea *p. 230; (5) motion for leave to amend plea *p. 272; (6) motion for stay until equity suit heard overruled *p. 404; (7) jury impaneled *p. 411; (8) witnesses sworn *p. 412; (9) motion to produce deeds granted *p. 414; (10) verdict *p. 415; (11) attendance of witness proved *p. 415; (12) leave granted to file motion for new trial, motion withdrawn, rule for judgment nisi *p. 487; (13) rule for judgment, motion to increase damages overruled *p. 511.
Papers in File: (i) Agreement to enter amicable suit; (2) declaration; (3) precipe for office judgment; (4) notice of demand for oyer, copy of bond; (5) plea of nil debet and notice of defenses; (6) copy of assignment of bond; (7-8) precipes for subpoenas; (9) subpoena; (10) verdict; (n) reasons in arrest of judgment; (12) precipe for execution fi. fa.; (13) writ of fi. fa. and return; (14) precipe for alias fi. fa.; (15) alias fi. fa.; (16) precipe for alias fi. fa.; (17) alias fi. fa. and return; (18) receipt for alias fi. fa.; (19) precipe for execution; (20) motion to set aside execution; (21) transcript of judgment record.
Office Docket, MS p. 98, c. 49. (Case 26 of 1820) Recorded in Book B, MS pp. 314-18. | [
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Papers in File (1816): (1) Indictment; (2) capias sur indictment and return. | [
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Papers in File (1824): (1) Petition for habeas corpus; (2) affidavit in support of petition; (3) precipe for writ; (4) writ of habeas corpus, return, decision. | [
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Journal Entries (1819-21): Journal 2: (1) Writs and transcript filed *p. 642; (2) appearance *p. 718; (3) rule to declare, continued *p. 719. Journal3: (4) Continued *p. 87; (5) default judgment *p. 231.
Papers in File: (i) Bill of costs; (2) writ of fi. fa. and return; (3) writ of ca. sa. and receipts.
Office Docket, MS p. 88, c. 27. Recorded in Book A, MS pp. 213-17. | [
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Journal Entries (1821): Journal 3: (1) Appearances, return held sufficient, prisoner remanded *p. 138.
Papers in File: (i) Petition for habeas corpus and allowance of writ; (2) writ of habeas corpus and return; (3) precipe for subpoena; (4) subpoena; (5) sheriff’s bill of fees; (6) crier’s bill of fees; (7) taxed bill of costs. 1821 Calendar, MS p. 55. | [
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Journal Entries (1816): Journal 2: (1) Return filed, held sufficient, appearance *p. 507.
Papers in File : (1) Copy of affidavit for bail filed in county court; (2) petition for habeas corpus, allowance of writ; (3) writ of habeas corpus and return. | [
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Journal Entries (1815-16): Journal 2: (1) Rule to bring bodies *p. 446; (2) special bail *p. 453; (3) continued *p. 474; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt remitted, judgment for costs *p. 521.
Papers in File: (i) Capias and return; (2) declaration.
Office Docket, MS p. 18, c. 35; p. 40, c. 49. | [
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Journal Entries (1821): Journal3: (1) Appearances *p. 155.
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Territory of Michigan to wit supreme court September term in the YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY THREE
John M’Donell vs John Scott
upon Error coram nobis. Assig* of Errors
Afterwards to wit, at the September Term of the said Supreme Court in the year of our Lord one thousand eight hundred and twenty three before the said Judges of the Said Court comes the said John M’Donell & says that in the record and proceedings aforesaid and also in the record of the Judgment aforesaid there is manifest error in this to wit that the judgment in said case was in fact given & rendered in said case in favour of said John M’Donell against said John Scott, affirming with other costs &c the said Judgment of the said Justice, whereas by mistake & accident & clerical error in the recording thereof & the brief minutes of the judgment aforesaid the same was entered as a judment of reversal, & this the said John M’Donell is ready to verify, wherefore he prays that the entry aforesaid may be corrected & the record in the premises amended & that the entry & record aforesaid purporting that a judgment of reversal was rendered may be corrected & amended & the former record thereof revoked & altogether held for nothing and that he may be restored to all things which he hath lost by occasion of the entry & judgment aforesaid
John M’Donell by Woodbridge his Atty
[In the handwriting of William Woodbridge] | [
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John S. Robey vs John L. Leib:
Action the Case for goods wares & Merchandise & Money lent & advanced & laid out & Expended. Before Justice Abbott in the City of Detroit & County of Wayne. — PlfFs demand $>84.46^2
John S. Robey being duly Sworn, deposeth & saith that on the twenty seventh day of February last he commenced An Action by summons against John L Leib Defendant named in the Above entitled Suit — to which the DeP appeared — & which was adjourned & continued by Justice Abbott & by Consent, several times, till the second day of April last, when both this deponent and the Sd DeP appeared before the Sd Justice aforesaid, and this deponent exhibited An AcP for Sundry goods — wares & Merchandise sold sd DeP & also for Money lent — amounting to Eighty four Dollars forty six & yí Cents which Am1 he claimed to recover of the said DeP — that the sd DeP to this demand plead the Gen1 issue of Non assumpsit — & claimed & filed an offset Amounting to One hundred dollars — & demanded Jud1 of the Court in his favor for the ballance. Whereupon the sd parties went to trial — And on the trial, the whole of this Deponents Account was proved and admitted, except an Error of two Shillings — That the said DeP then stated that his sett-off of One hundred dollars was the Amount of a fee to that Amount, which he said this deponent Contracted & promised to give him On condition he would Engage as a Counsellor & attorney to assist the Atty Gen1 of this Territory in the prosecution of Henry Hudson then expected to be indicted before the County Court of the County of Wayne, that in support of this set off the Defendant produced to the Court a Small Memorandum Book — in which was an Entry of a Memorandum by the Def* of his being on a certain day employed by this Deponent in the case of an indictment against Henry Hudson as aforesaid and the sum of one hundred dollars put opposite the Same as the amount of his fee in sd Case. — Which Book was allowed to be shown & Read in Evidence, by Consent of this Deponent he agreeing that it might go for what it was worth, but at the same time contending that it was not sufficent Evidence to prove a contract made by him. — And further that in Support of the sd Deft’s Sett off, he produced John McDonnell — Rob* Smart — H. P. Brevoort — Richd Smith — and Mary Hudson as witnesses who were all sworn on his behalf. — And this deponent further saith that to the best of his Reccollection & belief — the Amount of the testimony of Mary Hudson went to show that she called on Judge Leib the Def* on the Same day that he told her he had been employed by a certain gentleman to assist in prosecuting Henry Hudson — for the purpose of retaining him to assist in the defence of the Sd Hudson, And that she would have given him a much larger sum than One hundred dollars — but that the sd Leib told her, he had been employed by some gentleman to assist in the prosecution & therefore could not be retained by her on behalf of her husband. — And further that the Amount of the testimony of all the other witnesses above named went generally to show, by certain Conversations had by this Deponent — in their presence principally in the grand jury Room —• (when they were members of the Grand jury that found indictments against the Sd Henry Hudson) and Els-where, that they had understood from such conversations that this deponent was — to give —- (as some of the sd witnesses thought) or to procure (as others understood) the Sum of fifty dollars to the Sd Leib, as a fee for assisting in drawing the indictments against the Sd Hudson & assisting in the prosecution thereof before the sd County Court — and that some of the sd witnesses also had understood in said Conversations that the sd Deponent was also to procure by subscribtion other fifty dollars for the Sd Leib — on the Condition aforesaid ■—■ but that not one of the sd witnesses stated on Sd trial that —• this deponent was to give, himself, more than fifty dollars. And further that this deponent, not Knowing the Nature and extent of the Sd Sett off Nor the testimony that was to be produced in support of it — was not prepared to Rebut the same — But being Confident from the testimony given on the trial, that No more than fifty dollars of the sd Sett off would be allowed by the sd Justice, he intended to appeal the case to the county Court where he believed he should be able to produce such testimony as would entirely set asside the Sett off claimed by Sd Defendant.
But further this Deponent States that the sd Justice Abbott after the Examination of the Said witnesses, informed the parties that he should hold the case under advisement for two days untill the fourth day of April present — when he would give judgment — And that before the Sd time for giving Jud1 at the request of the Sd Defendant, the said Justice did send for One of the Sd witnesses, Ricd Smith, — and examined him again without the Knowledge or consent of this Deponant and without his or his counsel’s being present on such examination. —And that on the evidence given on Sd Second examination — the sd Justice, (as this deponent has been informed by the sd Justice himself & verily believes) was induced to change his opinion, as before made up from the Evidence given on the trial, — And to Allow the Defts offset at One hundred dollars instead of fifty dollars — And that the sd Justice did accordingly give judg* against this Deponent And in favor of the Sd Defendant for the sum of fifteen dollars and fifty three & one half cents
And this Deponant further States that on the sd trial he did contend that the Sd Defendant had never given any assistance in drawing the Sd Indictments against the Sd Henry Hudson or in prosecuting the said Henry Hudson on the sd indictments when drawn — All which was admitted by the Sd Defendant on the Sd trial.
And this deponent further States that after the Rendition of Sd Jud1 and within the time limited by the Statute, he did claim an appeal to the county court from Sd Jud1 which at that time was granted and allowed by Sd Justice and Security for the appeal was produced and entered on the Docket of the sd Justice but on the next day after, the sd Justice, considering that the appeal was not Allowable by law — inasmuch as the sd Jud1 was rendered for a less sum than twenty dollars — altho’ the amount in contest between the parties was One hundred dollars. — And further that this deponent did contend before the sd Justice that he was entitled to an appeal from the Sd Justice — and that the question whether the Law would sanction the appeal ought to be left by the sd Justice to be decided by the County Court on the sd appeal’s being brought before them — that the sd Justice, nevertheless did peremptorily refuse to grant the Appeal — thinking himself bound so to do by the Statute. — And further this Deponent saith not Sworn and subscribed John S Roby
before me this 25th April 1822.
Thomas Rowland
Justice of the peace
[.Attached to the foregoing(]
John S. Robey, being duly sworn, deposeth and saith, that, in the Affidavit made by this deponent in a case between this Deponent and John L. Leib — & to which Affidavit this is supplementary and attached, the word “last” — as written after the word “April,” — on the first page of Sd Affidavit was an error in writing — that the Sd month of April mentioned in Sd Affidavit, and the time intended to be Reffered to thereby, was the Month of April of this present year, to wit, the year of our Lord One thousand Eight hundred and twenty two. And was the same month as is mentioned in the second page of Sd affidavit by the words “April present.” — And further this deponent Saith that the time at which the claim for an appeal was made, as mentioned on the third page of said affidavit was on the fourth of the Sd Month of April then present & now past, and that the time when the security was presented & entered on the docket of the Sd Justice was the fifth day of the Sd month of April — And that the time mentioned in Sd affidavit as being the “next day after” — the Entering of the Sd Security on the Docket of the Sd Justice for the appeal he had granted was on the sixth day of the month of April — on which sd sixth day of April it was that the said Justice decided that he could not allow the Appeal — And further that it was on the same sixth day of April immediately after Sd Justice had decided that he could not allow the appeal that this deponent gave notice that he should apply for a certiorari
And further this Deponent saith not
John S Roby
Sworn to and subscribed before me this 9th day of May A.D. 1822.
Thomas Rowland Justice of the peace
Michigan, to wit;
The supplemental affidavit, which I deem perfectly admissible, having identified the day, on which the appeal was claimed, granted, and allowed, to have been the fourth day of April, one thousand eight hundred twenty two, and the security having been taken on the fifth day of the same month, the judgment, thereby, became, for the time being, vacated; and if reinstated on the sixth, as the original affidavit, perhaps, means to state, or whether on the fifth, or, by relation back, on the fourth, still leaves the appellant virtually and fairly within the twenty days allowed by the law for making the affidavit; and, being satisfied that there is reasonable cause therefor, a certiorari is allowed as prayed for.
Woodward, Judge.
Mon. May 13. 1822.
[The allocatur is in the handwriting of Augustus B. Woodward] | [
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Journal Entries (1814-19): Journal 2: (1) Continued *p. 425; (2) continued *p. 440; (3) discontinued *p. 670.
Papers in File: (i) Capias and return.
Office Docket, MS p. 2, c. 5. | [
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Journal Entries (1822-27): Journal 3: (1) Time for filing declaration extended *p. 361. Journal 4: (2) Continued MS p. 95; (3) death suggested MS p. 130; (4) nonsuit MS p. 136.
Papers in File: (i) Precipe for process; (2) capias and return; (3) declaration; (4) copy of bond.
1822-23 Calendar, MS p. 83. | [
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Journal Entries (1818-20): Journal 2: (1) Rule to bring body, declaration filed de bene esse *p. 586; (2) special bail *p. 587; (3) cognovit, judgment *p. 664. Journal j: (4) Motion for attachment for costs *p. 94; (5) sheriff’s fees allowed, etc. *p. 94.
Papers in File: (i) Precipe for process, account; (2) capias and return;
(3) declaration; (4) precipe for execution ca. sa.; (5) writ of ca. sa. Office Docket, MS p. 58, c. 2. | [
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Journal Entries (1821): Journal3: (1) Discontinued *p. 196.
Papers in File: (i) Precipe for process; (2) capias, precept to take bail, deputation, return.
1821 Calendar, MS p. 1. Recorded in Book A, MS pp. 144-47. | [
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Territory of Michigan county of wayne
to two of the Justices assigned to keep the peace in and for the County aforesaid Abraham Noyes Respectfully sheweth that he is Confined in the Common goal in the County of Wayne on Execution in favour of John Jewell issued out of the County Court of Wayne County and that he is not able to maintain himself in prisión and pay prisión Charges and prays releif according to Law that his creditors may be notified of his intentions of takeing the benafit of the act for the releif of poor prisenors Committe on Execution for Debt Detroit prisión Oct 11th A.D. 1820 Wit W, Howard Abrahm Noyes | [
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Journal Entries (1821-22): Journal 3: (1) Recognizance, continued *p. 168; (2) continued *p. 349; (3) recognizance extended, continued *P- 377-
Papers in File: (i) Precipe for habeas corpus cum causa; (2) writ of habeas corpus; (3) transcript of county court record; (4) precipe for subpoena; (5) subpoena; (6) affidavit for continuance; (7) precipe for subpoena; (8) subpoena.
1821 Calendar, MS p. 70. | [
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Journal Entries (1821-24): Journal j: (1) Transcript filed, judgment *p. 215; (2) motion to re-tax costs *p. 479.
Papers in File: (i) Transcript of county court record; (2) precipe for execution fi. fa.; (3) writ of fi. fa. and return; (4) precipe for alias’fi. fa.; (5) alias fi. fa. and indorsements.
Office Docket, MS p. 154, c. 86. (Case 136 of 1820) Recorded in Book A, MS pp. 164-71. | [
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Journal Entries (1824-31): Journal3: (1) Rule to declare and to plead *p. 481. Journal 4: (2) Continued MS p. 12; (3) continued MS p. 94; (4) continued under rule of reference MS p. 230; (5) rule of reference extended MS p. 278; (6) reference MS p. 322; (7) continued MS p. 413; (8) continued MS p. 449.
Papers in File: (i) Precipe for summons; (2) summons and return; (3) appearance; (4) declaration; (5) plea of non assumpsit and notice of set off; (6) notice of taking deposition; (7) precipe for subpoena; (8) subpoena; (9) deposition of Samuel Abbott; (10) venire facias and return; (11) stipulation for reference; (12) names of referees; (13) stipulation for extension of rule of reference; (14) statement of accounts.
1824-36 Calendar, MS p. 14. | [
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Journal Entries (1815): Journal 2: (1) Return non est, continued *p. 442; (2) attachment proceedings quashed *p. 485.
Papers in File: [None]
Office Docket, MS p. 25, c. 56; p. 25, c. 57. | [
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Journal Entries (1822): Journal j: (1) Indictment presented *p. 284; (2) copy of indictment ordered furnished *p. 305; (3) motion for discharge *p. 321; (4) arraignment, plea, jury impaneled *p. 331; (5) juror summoned *p. 332; (6) witnesses sworn *p. 332; (7) interpreter sworn *p. 332; (8) adjournment, jury admonished *p. 332; (9) absent witness ordered attached, excused *p. 332; (10) witnesses sworn *p. 332; (11) constable sworn to attend jury *p. 333; (12) verdict, jury polled, prisoner discharged *p. 333; (13-16) attendance of witnesses proved *p. 333; (17) attendance of witness proved *p. 338.
Papers in File: (i) Recognizance; (2) indictment; (3) capias sur indictment and return; (4) precipe for subpoena; (5) subpoena; (6) precipe for subpoena; (7-9) subpoenas; (10) attachment for George Dunham; (11) transcript of order for attachment; (13) panel of jurors. | [
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Journal Entries (1821-22): Chancery Journal: (1) Motion for leave to amend bill, etc. *p. 20. Journal3: (2) Leave to amend bill, etc., granted *p. 251; (3) dismissed *p. 295. Chancery Journal: Discontinued *p. 54.
Papers in File: (i) Bill of complaint; (2) precipe for copy of bill of complaint; (3) dismissal.
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YOUNG, J.
We granted leave to appeal in these cases and ordered that they be argued and submitted together to clarify the elements of operating a motor vehicle while under the influence of liquor and causing death (“OUIL causing death”), MCL 257.625(4). In addressing this issue, we revisit our decision in People v Lardie, which held, inter alia, that to convict a defendant of OUIL causing death, the prosecution must prove “that the defendant’s intoxicated driving was a substantial cause of the victim’s death.”
We conclude that the Lardie Court erred in holding that the defendant’s “intoxicated driving” must be a substantial cause of the victim’s death. The plain text of § 625(4) does not require that the prosecution prove the defendant’s intoxicated state affected his or her operation of the motor vehicle. Indeed, § 625(4) requires no causal link at all between the defendant’s intoxication and the victim’s death. The statute requires that the defendant’s operation of the motor vehicle, not the defendant’s intoxicated manner of driving, must cause the victim’s death. The defendant’s status as “intoxicated” is a separate element of the offense of OUIL causing death. It specifies the class of persons subject to liability under § 625(4): intoxicated drivers.
Quite simply, by enacting § 625(4), the Legislature intended to punish “operating while intoxicated,” not “operating in an intoxicated manner.” Therefore, to the extent that Lardie held that the defendant’s intoxicated driving must be a substantial cause of the victim’s death, it is overruled.
Accordingly, in People v Schaefer, we vacate the judgment of the Court of Appeals and remand the case to the Court of Appeals to address defendant’s remaining argument that the trial court erred so as to require reversal in making repeated references to defendant’s stipulation as to his 0.16 blood-alcohol level during the jury instructions. In People v Large, we reverse the judgment of the Court of Appeals and remand the case to the district court for reconsideration of whether to bind defendant over on the charge of OUIL causing death in light of the principles set forth in this opinion.
I. FACTS AND PROCEDURAL HISTORY
A. PEOPLE v SCHAEFER
In January 2002, defendant was driving on Interstate-75 in the city of Lincoln Park with his friend as a passenger in the vehicle. Defendant admitted that he consumed three beers before getting behind the wheel. According to several eyewitnesses, defendant was tailgating various cars and driving erratically.
While on the freeway, defendant’s passenger abruptly told him that they had reached their freeway exit. Defendant swerved to exit the freeway, hit the curb, and lost control of the car. The car rolled over, killing the passenger. Defendant stipulated at trial that he had a 0.16 blood-alcohol level almost three hours after the accident.
Defendant was charged with OUIL causing death and manslaughter with a motor vehicle. At trial, a defense expert witness testified that the exit ramp was safe for speeds up to thirty miles per hour, but dangerous at any greater speed. He stated that he would have expected numerous accidents, including rollovers, during the thirty-six years that the ramp was in existence and that he was surprised to learn that there had been no other rollover accidents in over twenty years.
In instructing the jury, instead of reading the standard instruction for OUIL causing death, CJI2d 15.11, the trial court read the text of the OUIL causing death statute. When the jury asked for additional instructions during deliberations, the trial court said all it could do was tell them what the statute said. Thus, the court again read the statute to the jury. The jury convicted defendant of OUIL causing death and negligent homi tide. Defendant was sentenced to concurrent prison terms of fifty months to fifteen years for OUIL causing death and one to two years for negligent homicide.
On appeal, the Court of Appeals affirmed defendant’s negligent homicide conviction, but reversed his conviction of OUIL causing death. In a two-to-one decision, the Court of Appeals held that the trial court erred in instructing the jury because it did not inform the jury that defendant’s intoxicated driving must be a “substantial cause” of the victim’s death, as required by Lardie. The dissent concluded that the trial court properly instructed the jury on the causation element of OUIL causing death by reading the statute to the jury. We granted the prosecutor’s application for leave to appeal and ordered that this case be argued and submitted with People v Large.
B. PEOPLE V LARGE
In July 2003, while driving on a road in Jackson County, defendant struck and killed an eleven-year-old girl who was riding her bicycle in the late afternoon. The girl emerged onto the road after descending from an elevated driveway, the street view of which was partially obstructed by vegetation. The bicycle that she was riding did not have any brakes. Defendant was driving approximately five miles an hour over the posted speed limit of fifty-five miles per hour. Despite swerving in an attempt to avoid hitting the girl, the two collided. At the time of the accident, defendant had a 0.10 blood-alcohol level.
Defendant was charged with manslaughter with a motor vehicle, OUIL causing death, OUIL (second offense), and violation of license restrictions. At defendant’s preliminary examination, the prosecution called a sheriffs deputy who testified as an expert witness in accident reconstruction. The deputy testified that the accident was unavoidable, opining that the collision still would have occurred had defendant been sober and driving the speed limit. According to the deputy, a sober driver would have required at least IV2 seconds to notice the girl and attempt to avoid hitting her. On the basis of his investigation, the deputy concluded that the girl emerged onto the road, and the impact occurred, all within less than one second.
The district court bound defendant over on all counts except OUIL causing death. On appeal to the circuit court, the court refused to reinstate the charge of OUIL causing death. The prosecution then appealed to the Court of Appeals, which affirmed the circuit court. Relying on Lardie, the Court of Appeals held that “[t]he prosecution failed to present sufficient evidence to justify a finding that defendant’s intoxicated driving was a substantial cause of the victim’s death____” In refusing to entertain the prosecutor’s argument that Lardie was wrongly decided, the Court of Appeals stated that “ ‘[a] decision of the Supreme Court is binding upon this Court until the Supreme Court overrules itself.’ Therefore, we may not revisit the holding of Lardie.” We granted the prosecutor’s application for leave to appeal and ordered that this case be argued and submitted with People v Schaefer
II. STANDARD OF REVIEW
Statutory interpretation is a question of law that is reviewed by this Court de novo. Similarly, jury instructions that involve questions of law are also reviewed de novo. In reviewing a district court’s decision to bind over a defendant, the lower court’s determination regarding the sufficiency of the evidence is reviewed for an abuse of discretion, but the lower court’s rulings based on questions of law are reviewed de novo.
III. ANALYSIS
A. MCL 257.625(4)
Our Legislature first enacted the “OUIL causing death” statute as part of 1991 PA 98 in an attempt to increase the criminal penalties associated with driving while intoxicated. The Legislature evidently believed that sentences resulting from involuntary manslaughter and negligent homicide convictions inadequately deterred intoxicated drivers from getting behind the wheel. Thus, to address this concern, the Legislature enacted the OUIL causing death statute, which provides more severe penalties, with the apparent expectation that these heightened penalties would deter intoxicated individuals from driving.
Our OUIL causing death statute, MCL 257.625(4), provides:
A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1) [under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, or having an unlawful body alcohol content], (3) [visibly impaired by the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance], or (8) [any body content of a schedule 1 controlled substance] and by the operation of that motor vehicle causes the death of another person is guilty of a crime as follows:
(a)... [A] felony punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. [ ]
B. PEOPLE v LARDIE
In People v Lardie, this Court was presented with a due process challenge to the OUIL causing death statute. The defendants in the two consolidated cases in Lardie alleged that § 625(4) imposed criminal liability without requiring a culpable mental state. In rejecting the defendants’ due process arguments, this Court held that OUIL causing death is a general intent crime and that “the culpable act that the Legislature wishes to prevent is the one in which a person becomes intoxicated and then decides to drive.” We further held that “there is no requirement [under § 625(4)] that the people prove gross negligence or negligence” because “the Legislature essentially has presumed that driving while intoxicated is gross negligence as a matter of law.”
This Court then proceeded to examine the causation element of the OUIL causing death offense, stating:
The Legislature passed [§ 625(4)] in order to reduce the number of alcohol-related traffic fatalities. The Legislature sought to deter drivers who are “willing to risk current penalties” from drinking and driving. In seeking to reduce fatalities by deterring drunken driving, the statute must have been designed to punish drivers when their drunken driving caused another’s death. Otherwise, the statute would impose a penalty on a driver even when his wrongful decision to drive while intoxicated had no bearing on the death that resulted. Such an interpretation of the statute would produce an absurd result by divorcing the defendant’s fault from the resulting injury. We seek to avoid such an interpretation.[ ]
Thus, relying on policy justifications and its belief that a contrary construction would lead to an “absurd re- suit,” the Lardie Court held that “in proving causation, the people must establish that the particular defendant’s decision to drive while intoxicated produced a change in that driver’s operation of the vehicle that caused the death of the victim.” According to the Lardie Court, “[i]t is the change that such intoxication produces, and whether it caused the death, which is the focus of [the causation] element of the crime.”
The Lardie Court summarized the three distinct elements the prosecution must prove in securing a conviction for OUIL causing death: .
(1) [That] the defendant was operating his motor vehicle while he was intoxicated, (2) that he voluntarily decided to drive knowing that he had consumed alcohol and might be intoxicated, and (3) that the defendant’s intoxicated driving was a substantial cause of the victim’s death.[ ]
C. PRINCIPLES OF STATUTORY INTERPRETATION
When interpreting a statute, it is the court’s duty to give effect to the intent of the Legislature as expressed in the actual language used in the statute. It is the role of the judiciary to interpret, not write, the law. If the statutory language is clear and unambiguous, the statute is enforced as written. Judicial construction is neither necessary nor permitted because it is presumed that the Legislature intended the clear meaning it expressed.
D. THE CAUSATION ELEMENT OF § 625(4)
The plain text of § 625(4) requires no causal link between the defendant’s intoxication and the victim’s death. Section 625(4) provides, “A person, whether licensed or not, who operates a motor vehicle [while intoxicated] and by the operation of that motor vehicle causes the death of another person is guilty of a crime . . . .” Accordingly, it is the defendant’s operation of the motor vehicle that must cause the victim’s death, not the defendant’s “intoxication.” While a defendant’s status as “intoxicated” is certainly an element of the offense of OUIL causing death, it is not a component of the causation element of the offense. Justice WEAVER succinctly stated this point in her concurrence in Lardie:
The plain language of the statute clearly indicates that the Legislature intended causation to turn on the fact that the defendant operated the vehicle while intoxicated, rather than the changed manner in which, or how, the defendant operated the vehicle while intoxicated.[ ]
The Lardie Court’s reliance on policy considerations in construing § 625(4) was misplaced. It is true that the cardinal rule of statutory interpretation is to give effect to the intent of the Legislature. However, the Legislature’s intent must be ascertained from the actual text of the statute, not from extra-textual judicial divinations of “what the Legislature really meant.” As we stated in Lansing Mayor, supra, “rather than engaging in legislative mind-reading to discern [legislative intent], we believe that the best measure of the Legislature’s intent is simply the words that it has chosen to enact into law.”
The Lardie Court also erred in assuming that judicial adherence to and application of the actual text of § 625(4) “would produce an absurd result.” The result that the Court in Lardie viewed as “absurd”-imposing criminal liability under § 625(4) when a victim’s death is caused by a defendant’s operation of the vehicle rather than the defendant’s intoxicated operation-reflects a policy choice adopted by a majority of the Legislature. A court is not free to cast aside a specific policy choice adopted on behalf of the people of the state by their elected representatives in the Legislature simply because the court would prefer a different policy choice. To do so would be to empower the least politically accountable branch of government with unbridled policymaking power. Such a model of government was not envisioned by the people of Michigan in ratifying our Constitution, and modifying our structure of government by judicial fiat will not be endorsed by this Court.
Instead, we must construe the causation element of § 625(4) according to the actual text of the statute. Section 625(4) plainly requires that the victim’s death be caused by the defendant’s operation of the vehicle, not the defendant’s intoxicated operation. Thus, the manner in which the defendant’s intoxication affected his or her operation of the vehicle is unrelated to the causation element of the crime. The defendant’s status as “intoxicated” is a separate element of the offense used to identify the class of persons subject to liability under § 625(4).
Accordingly, we overrule Lardie only to the extent it held that the prosecution must prove “that the defendant’s intoxicated driving was a substantial cause of the victim’s death.” We hold that the prosecution, in proving OUIL causing death, must establish beyond a reasonable doubt that (1) the defendant was operating his or her motor vehicle in violation of MCL 257.625(1), (3), or (8); (2) the defendant voluntarily decided to drive, knowing that he or she had consumed an intoxicating agent and might be intoxicated; and (3) the defendant’s operation of the motor vehicle caused the victim’s death.
It is ironic that the Lardie Court recognized that the Legislature’s intent in passing § 625(4) was “to deter th[e] gravely dangerous conduct” of driving while intoxicated, yet interpreted § 625(4) in such a way so as to limit substantially the applicability of § 625(4) beyond that which the Legislature envisioned. As Justice WEAVER noted in her Lardie concurrence, the Lardie majority’s “demanding burden of proof-requiring the prosecution to show that the defendant’s intoxication changed his or her manner of operation-“was not intended by the Legislature and is not found in the language of the statute.” Unlike the Lardie Court, we believe that the best way to “deter this gravely dangerous conduct” is to enforce the statute as written and thereby give the statute the teeth that the Legislature intended.
Having determined that § 625(4) requires the victim’s death to be caused by the defendant’s operation ,of the vehicle, rather than the defendant’s intoxicated manner of operation, we turn to the issue of defining the term “cause.” In the criminal law context, the word “cause” has acquired a unique, technical meaning. Accordingly, pursuant to MCL 8.3a, we must construe the term “according to [its] peculiar and appropriate meaning” in the law. .
In criminal jurisprudence, the causation element of an offense is generally comprised of two components: factual cause and proximate cause. The concept of factual causation is relatively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, “but for” the defendant’s conduct, would the result have occurred? If the result would not have occurred absent the defendant’s conduct, then factual causation exists.
The existence of factual causation alone, however, will not support the imposition of criminal liability. Proximate causation must also be established. As we noted in Tims, proximate causation is a “legal colloquialism.” It is a legal construct designed to prevent criminal liability from attaching when the result of the defendant’s conduct is viewed as too remote or unnatural. Thus, a proximate cause is simply a factual cause “of which the law will take cognizance.”
For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a “direct and natural result” of the defendant’s actions. In making this determination, it is necessary to examine whether there was an intervening cause that superseded the defendant’s conduct such that the causal link between the defendant’s conduct and the victim’s injury was broken. If an intervening cause did indeed supersede the defendant’s act as a legally significant causal factor, then the defendant’s conduct will not be deemed a proximate cause of the victim’s injury.
The standard by which to gauge whether an intervening cause supersedes, and thus severs the causal link, is generally one of reasonable foreseeability. For example, suppose that a defendant stabs a victim and the victim is then taken to a nearby hospital for treatment. If the physician is negligent in providing medical care to the victim and the victim later dies, the defendant is still considered to have proximately caused the victim’s death because it is reasonably foreseeable that negligent medical care might be provided. At the same time, gross negligence or intentional misconduct by a treating physician is not reasonably foreseeable, and would thus break the causal chain between the defendant and the victim.
The linchpin in the superseding cause analysis, therefore, is whether the intervening cause was foreseeable based on an objective standard of reasonableness. If it was reasonably foreseeable, then the defendant’s conduct will be considered a proximate cause. If, however, the intervening act by the victim or a third party was not reasonably foreseeable — e.g., gross negli gence or intentional misconduct — then generally the causal link is severed and the defendant’s conduct is not regarded as a proximate cause of the victim’s injury or death.
In criminal law, “gross negligence” is not merely an elevated or enhanced form of ordinary negligence. As we held in Barnes, supra, in criminal jurisprudence, gross negligence “means wantonness and disregard of the consequences which may ensue, and indifference to the rights of others that is equivalent to a criminal intent.”
Accordingly, in examining the causation element of OUIL causing death, it must first be determined whether the defendant’s operation of the vehicle was a factual cause of the victim’s death. If factual causation is established, it must then be determined whether the defendant’s operation of the vehicle was a proximate cause. In doing so, one must inquire whether the victim’s death was a direct and natural result of the defendant’s operation of the vehicle and whether an intervening cause may have superseded and thus severed the causal link. While an act of God or the gross negligence or intentional misconduct by the victim or a third party will generally be considered a superseding cause, ordinary negligence by the victim or a third party will not be regarded as a superseding cause because ordinary negligence is reasonably foreseeable.
E. APPLICATION
i. PEOPLE V SCHAEFER
Defendant argues that the trial court erred in instructing the jury on OUIL causing death in two respects. First, defendant contends that the trial court’s instruction on the causation element of the crime was flawed. Second, defendant argues that the trial court erred when it reminded the jury three times during instructions about defendant’s stipulation as to his 0.16 blood-alcohol level.
In initially instructing the jury on the causation element of OUIL causing death, the trial court read the text of § 625(4) to the jury. Defendant objected to the instruction, arguing that the standard jury instruction for OUIL causing death, CJI2d 15.11, which incorporated this Court’s Lardie holding, should have been read instead. Less than an hour into deliberations, the jury specifically requested clarification from the trial court on the causation element of OUIL causing death:
The Court: Okay. You’re asking to explain under the influence, as is stated in Count I [OUIL causing death]. [I]s that what you want to know?
Juror No. 11: Also causing death.
The Court: I’m sorry; also what?
Juror No. 11: Under the influence causing death.
The Court: Yeah, okay. All I can do is tell you what the statute says. If that was the case, you have to decide that. [Emphasis added.]
Defendant again objected to the instruction, arguing that the trial court did not adequately explain the causation element of OUIL causing death.
We agree that the trial court erred in instructing the jury on causation, but not for the reasons offered by defendant. Defendant argues that the causation instruction was flawed because the trial court did not instruct the jury that defendant’s intoxicated driving must be a “substantial cause” of the victim’s death, as required by Lardie. As discussed above, the Lardie Court erred in requiring that the defendant’s intoxication, rather than the defendant’s operation of the motor vehicle, constitute the substantial cause. Accordingly, the trial court’s causation instruction was not flawed in the manner asserted by defendant. Instead, we conclude that the trial court erred because the word “cause” in § 625(4) is a legal term of art normally not within the common understanding of jurors, and thus, simply reading the statute to the jury was insufficient. The jury could not be expected to understand that the statute required the prosecutor to prove both factual causation and proximate causation.
Having determined that the causation instruction was flawed, we turn to whether the error was harmless. Mere error alone in instructing the jury is insufficient to set aside a criminal conviction. Instead, a defendant must establish that the erroneous instruction resulted in “a miscarriage of justice.” Specifically, by enacting MCL 769.26, our Legislature has provided:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.[ ]
As we noted in People v Cornell, in giving effect to the “miscarriage of justice” standard of MCL 769.26, a reviewing court is required to classify the type of alleged instructional error as either constitutional or nonconstitutional, and as either preserved or unpreserved. In Cornell, we held that instructional error based on the misapplication of a statute is generally considered non-constitutional error. As such, any error that the trial court committed in the present case in failing to explain the causation element of § 625(4) was nonconstitutional. Moreover, because defendant promptly objected to the instruction and adequately articulated the basis for the objection, the alleged error was properly preserved.
Accordingly, the alleged instructional error in this case is appropriately classified as preserved, nonconsti tutional error, as noted by the Court of Appeals. In People v Lukity, we held that MCL 769.26 creates a presumption that preserved nonconstitutional error, is harmless unless the defendant demonstrates that the error was outcome determinative. Specifically, in Lukity we stated that MCL 769.26 “presumes that a preserved, nonconstitutional error is not a ground for reversal unless ‘after an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was outcome determinative.” An error is not “outcome determinative” unless it “ ‘undermined the reliability of the verdict.’ ”
Applying the Lukity standard to the alleged instructional error in the present case, we conclude that any error on the part of the trial court in merely reading the statute and failing to explain the causation element of OUIL causing death was harmless. There is no evidence that the trial court’s failure to explain fully both the factual cause and proximate cause components of the causation element of the offense was “outcome determinative” or that the “reliability of the verdict was undermined.”
Assuming, arguendo, that the jury gave full credit to the testimony of defendant’s expert witness on highway design, the most that the witness’s testimony established was that the freeway exit was negligently designed. The witness presented no evidence that there was any gross negligence in the design of the freeway exit. As such, the design of the freeway exit could not be considered a superseding cause that would prevent defendant from being legally regarded as a proximate cause of the victim’s death. We conclude, therefore, that defendant has failed to rebut the presumption that the alleged instructional error was harmless because he has not demonstrated that the alleged error was outcome determinative in that it undermined the reliability of the verdict, as required by MCL 769.26 and Lukity
Defendant also argues that the trial court committed error requiring reversal when it reminded the jury three times during instructions about defendant’s stipulation as to his 0.16 blood-alcohol level. However, the Court of Appeals declined to address this argument in light of its resolution of this case. Accordingly, we remand this case to the Court of Appeals limited solely to the issue of whether the trial court committed error requiring reversal in making repeated references to the stipulation regarding defendant’s blood-alcohol level. We do not retain jurisdiction.
ii. PEOPLE v LARGE
The first two elements of OUIL causing death are not in dispute. Defendant’s blood-alcohol level was 0.10 grams and he voluntarily chose to drive knowing that he had consumed alcohol. The uncertainty lies in the causation element of the offense.
Defendant’s operation of the vehicle was undeniably a factual cause of the young girl’s death. Absent defendant’s operation of the vehicle, the collision would not have occurred. The issue of proximate causation, however, is less certain. There is evidence that the victim’s death was the direct and natural result of defendant’s operation of the vehicle. At the same time, the victim rode a bicycle without brakes down a partially obstructed hill onto a busy road and, thus, according to the prosecution’s own expert witness, made the collision unavoidable. Given the fact that during the preliminary examination the parties did not directly address the proximate cause issue, including whether the victim’s own behavior was a superseding cause, the proper course is to remand this case to the district court for reconsideration of whether to bind over defendant in light of the principles discussed in this opinion. We do not retain jurisdiction.
IV CONCLUSION
The Lardie Court erred in holding that the defendant’s “intoxicated driving” must be a substantial cause of the victim’s death. There is no textual basis for the Lardie Court’s holding. Indeed, the plain text of the OUIL causing death statute requires no causal link at all between the defendant’s intoxication and the victim’s death. The defendant’s status as “intoxicated” is a separate element of the offense and entirely irrelevant to the causation element of the crime. It is the defendant’s operation of the motor vehicle that must cause the victim’s death under § 625(4), not the manner by which the defendant’s intoxication may or may not have affected the defendant’s operating ability. Therefore, to the extent that Lardie held that § 625(4) requires the defendant’s intoxicated driving to be a substantial cause of the victim’s death, it is overruled. In proving the causation element of OUIL causing death, the people need only prove that the defendant’s operation of the motor vehicle caused, both factually and proximately, the victim’s death.
Accordingly, in People v Schaefer, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals to address defendant’s remaining argument that the trial court erred so as to require reversal in making repeated references to defendant’s stipulation as to his 0.16 blood-alcohol level during the jury instructions. In People v Large, the judgment of the Court of Appeals is reversed and the case is remanded to the district court for reconsideration of whether to bind defendant over on the charge of OUIL causing death in light of the principles set forth in this opinion. We do not retain jurisdiction in either case.
Taylor, C.J., and Weaver, Corrigan, and Markman, JJ., concurred with YOUNG, J.
452 Mich 231; 551 NW2d 656 (1996).
Id. at 259-260 (emphasis added).
Id. at 234 (emphasis in original).
We do not disturb our other holdings in Lardie, including that the prosecution need not prove negligence or gross negligence by the defendant, that the defendant must have “voluntarily” decided to drive “knowing that he had consumed an intoxicating liquor,” and that § 625(4) comports with constitutional due process principles. Id. at 249-251, 265-267.
Defendant denied drinking the beer contained in the empty bottles found in his vehicle. He claimed that the bottles were left over from a party.
At the time defendant was charged, § 625(1) set the statutory intoxication threshold at a blood-alcohol content of 0.10 grams per one hundred milliliters. Pursuant to 2003 PA 61, however, the statutory intoxication threshold has been reduced from 0.10 to 0.08.
MCL 257.625(4).
MCL 750.321.
CJI2d 15.11 provided at the time:
(1) The defendant is charged with the crime of operating a motor vehicle under the influence of intoxicating liquor ... or with an unlawful bodily alcohol level, or while impaired, and in so doing, causing the death of another person. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(4) Third, that the defendant was under the influence of intoxicating liquor . . ., or had an unlawful bodily alcohol level, or was impaired while [he / she] was operating the vehicle.
(5) Fourth, that the defendant voluntarily decided to drive knowing that [he / she] had consumed alcohol. .. and might be intoxicated.
(6) Fifth, that the defendant’s intoxicated [or impaired] driving was a substantial cause of the victim’s death.
Negligent homicide, MCL 750.324, is a lesser-included offense of manslaughter with a motor vehicle. MCL 750.325; People v Weeder, 469 Mich 493, 497-498; 674 NW2d 372 (2004).
Unpublished opinion per curiam, issued March 25, 2004 (Docket No. 245175).
Id., slip op at 5.
471 Mich 923 (2004).
MCL 750.321.
MCL 257.625(4).
MCL 257.625(1).
MCL 257.312.
The circuit court also dismissed the manslaughter charge and remanded the case to the district court on the two remaining misdemeanor counts.
Unpublished opinion per curiam, issued August 10, 2004 (Docket No. 253261).
Id., slip op at 4.
Id. (citation omitted).
471 Mich 923 (2004).
People v Moore, 470 Mich 56, 61; 679 NW2d 41 (2004); People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003).
People v Perez, 469 Mich 415, 418; 670 NW2d 655 (2003); People v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003).
People v Yost, 468 Mich 122, 126-127; 659 NW2d 604 (2003); People v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991).
Lardie, supra at 253 & n 33.
Id. at 246-247, 253.
MCL 257.625(4) (emphasis added). The reference to subsection 8 — intoxication by a schedule 1 controlled substance — in § 625(4) was added as part of 2003 PA 61. At the time that defendants Schaefer and Large were charged, § 625(4) referenced only subsections 1 and 3.
Although § 625(4) has been amended since our decision in Lardie, none of the amendments limits the holding of Lardie or is otherwise material to the resolution of the present cases.
Lardie, supra at 245. We stated, “[t]he Legislature must reasonably have intended that the people prove a mens rea by demonstrating that the defendant purposefully drove while intoxicated or, in other words, that he had the general intent to perform the wrongful act.” Id. at 256.
Id. at 249, 251.
Id. at 256-257 (emphasis in original).
Id. at 258 (emphasis added).
Id. at 258 n 47 (emphasis in original).
Id. at 259-260 (emphasis added).
Halloran v Bhan, 470 Mich 572, 576; 683 NW2d 129 (2004); DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000).
Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002); State Farm Fire & Cos Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002).
People v Laney, 470 Mich 267, 271; 680 NW2d 888 (2004); People v Phillips, 469 Mich 390, 395; 666 NW2d 657 (2003).
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002); People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001).
Defendant Schaefer admits this point, stating that “[a] bare reading of the statute does not require that the defendant’s intoxicated driving be a substantial cause of the victim’s death.” Schaefer brief at 12-13 (emphasis in original). He further states, “[t]he statute does not require a nexus between the drunken driving, and the cause of the accident.” Id. at 15.
MCL 257.625(4) (emphasis added).
Lardie, supra at 273 (emphasis in original).
Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004); Parkwood Ltd Dividend Housing Ass’n v State Housing Dev Auth, 468 Mich 763, 772; 664 NW2d 185 (2003).
See Lansing Mayor v Pub Service Comm, 470 Mich 154, 164; 680 NW2d 840 (2004); Robertson v DaimlerChrysler Corp, 465 Mich 732, 762; 641 NW2d 567 (2002).
Lansing Mayor, supra at 164.
The flaw in the Lardie Court’s analysis is readily apparent when one considers the closely analogous crime of operating a vehicle with a suspended or revoked license and causing death. MCL 257.904(4). The text of § 904(4) parallels the language in § 625(4). Section 904(4) provides:
A person who operates a motor vehicle [under a suspended or revoked license] and who, by operation of that motor vehicle, causes the death of another person is guilty of a felony .... [Emphasis added.]
Under the Lardie Court’s rationale, § 904(4) would require that the defendant’s suspension or revocation somehow affect (i.e., be a “substantial cause” of) the manner by which the defendant operates the vehicle before criminal liability may be imposed. There is obviously no textual basis for such a conclusion, just as there was no such basis in Lardie. As Justice Weaver pointed out in her concurrence in Lardie, the Lardie majority fundamentally misunderstood the nature of a “status crime.” Lardie, supra at 271 n 8. The Lardie majority mistakenly took the status element of the crime — that the defendant was intoxicated — and fused it with the causation element of the offense. Therefore, to the extent that the Lardie Court was simply attempting to articulate a proximate cause requirement by creating its “substantial cause” test, the Lardie Court erred in conflating the “status” and “causation” elements of the crime.
Lardie, supra at 259-260 (emphasis added). As mentioned in note 4 of this opinion, we do not disturb the other holdings in Lardie.
MCL 257.625(4); cf. Lardie, supra at 259.
Lardie, supra at 253.
Id. at 272.
As we noted in Robinson v Detroit, 462 Mich 439, 463-468; 613 NW2d 307 (2000), we do not lightly overrule precedent. However, we do not believe that any of the considerations discussed in Robinson counsel against overruling Lardie in the present cases. Notably, we find it difficult to conceive any possible situation in which a “reliance interest” would ever exist in the context of a criminal statute. Additionally, as noted by Justice WEAVER in Lardie, the majority opinion in Lardie defies “practical workability” because the “change” in operating ability due to intoxication that the prosecution must demonstrate creates a nearly impossible burden of proof.
Indeed, for more than a century, this Court has recognized that “cause” is a term of art in criminal law. See People v Cook, 39 Mich 236 (1878); People v Rockwell, 39 Mich 503 (1878); People v Townsend, 214 Mich 267, 277-280; 183 NW 177 (1921).
MCL 8.3a provides:
All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. [Emphasis added.]
See also Babcock, supra at 257-258; People v Jones, 467 Mich 301, 304-305; 651 NW2d 906 (2002).
People v Tims, 449 Mich 83, 95; 534 NW2d 675 (1995); see also 1 Torcia, Wharton’s Criminal Law (15th ed), § 26; LaFave & Scott, Handbook on Criminal Law, § 35, p 246.
Tims, supra at 95; People v Barnes, 182 Mich 179, 194; 148 NW 400 (1914); see also 1 Torcía, Wharton’s Criminal Law (15th ed), § 26; Perkins, Criminal Law (2d ed), pp 687-688; LaFave & Scott, Handbook on Criminal Law, § 35, p 249 (1972) (“In order that conduct be the [factual] cause of a particular result it is almost always sufficient that the result would not have happened in the absence of the conduct; or, putting it another way, that “but for” the antecedent conduct the result would not have occurred.”).
Tims, supra at 95.
Tims, supra at 95.
Id. at 96.
See, e.g., Beale, The proximate consequences of an act, 33 Harv L R 633, 640 (1920).
1 Torcía, Wharton’s Criminal Law (15th ed), § 26, pp 147-148; See also Perkins, Criminal Law (2d ed), p 690.
Barnes, supra at 198; see also 1 Torcía, Wharton’s Criminal Law (15th ed), § 26; Perkins, Criminal Law (2d ed), pp 690-695; LaFave & Scott, Handbook on Criminal Law, § 35, pp 251-252 (1972); McLaughlin, Proximate cause, 39 Harv L R 149, 183 (1925).
Cook, supra at 239-240; Townsend, supra at 277-279; People v Vanderford, 77 Mich App 370, 372-373; 258 NW2d 502 (1977).
Cook, supra at 240. See also Perkins, Criminal Law (2d ed), p 716 (“And negligence, unfortunately, is entirely too frequent in human conduct to be considered ‘abnormal.’ ”); LaFave & Scott, Handbook on Criminal Law, § 35, p 259 (“In short, mere negligence in medical treatment is not so abnormal that the defendant should be freed of liability.”).
Cook, supra at 240. See also Perkins, Criminal Law (2d ed), p 719; LaFave & Scott, Handbook on Criminal Law, § 35, p 259.
Barnes, supra at 198.
Justice Cavanagh suggests in his partial dissent that both the Lardie Court and the majority in the present cases require a “more demanding standard” of proximate cause in the criminal context than that found in tort law. Post at 451. Justice Cavanagh mischaraeterizes both Lardie and the present cases. First, we do not read Lardie to impose the heightened form of proximate cause in criminal law that Justice Cavanagh advocates. In fact, in Tims, which was decided just one year before Lardie, we explicitly rejected that same argument. Second, contrary to Justice Cavanagh’s assertion, we do not adopt a heightened form of proximate cause in the present cases. Instead, we are simply applying the standard of proximate cause that this Court articulated in Tims and that has existed in our criminal jurisprudence for well over a century.
Had the Legislature intended to require only factual causation and not proximate causation as well, the Legislature would have instead used the words “results in death” rather than “causes the death.”
Indeed, MCL 257.617, which requires motorists involved in accidents to remain at the scene of the accident, specifically uses the phrase “results in ... death.” Section 617(2) provides:
[I]f the individual [flees the scene of an accident] and the accident results in serious impairment of a body function or death, the individual is guilty of a felony punishable by imprisonment for not more than 5 years or by a fine of not more than $5,000.00, or both. [Emphasis added.]
Accordingly, the Legislature is well aware of how to draft a statute that requires only factual causation and not proximate causation.
The United States Court of Appeals reached the same conclusion in construing an analogous federal criminal statute: distribution of a controlled substance resulting in death, 21 USC 841. Specifically § 841(a)(1) makes it illegal to “knowingly or intentionally . . . distribute ... a controlled substance” and § 841(b)(1)(C) provides an enhanced sentence “if death or serious bodily injury results from the use of such substance ....” (Emphasis added.) In recently addressing the proximate cause issue, the United States Court of Appeals for the Ninth Circuit held:
[P]roximate cause is not a required element for conviction and sentencing under § 841(b)(1)(C). All that is necessary under the statutory language is that “death... results” from the offense described in § 841(a)(1).... Cause-in-fact is required by the “results” language, but proximate cause ... is not a required element. [United States v Houston, 406 F3d 1121, 1124-1125 (CA 9, 2005).]
In so holding, the Ninth Circuit joined numerous other circuits that reached the same conclusion. See United States v Soler, 275 F3d 146, 152 (CA 1, 2002); United States v McIntosh, 236 F3d 968, 972-973 (CA 8, 2001); United States v Robinson, 167 F3d 824, 830-832 (CA 3, 1999); United States v Patterson, 38 F3d 139, 145-146 (CA 4, 1994).
Therefore, if the Legislature had intended to eliminate proximate causation as an element of OUIL causing death, it would have used the phrase “and by the operation of that motor vehicle the death of another person results." The Legislature, however, deliberately chose to use the word “cause” in § 625(4) and thereby incorporated the technical, legal meaning of the term.
While the trial court was not required to read the jury the standard criminal jury instruction because they are not binding authority, People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985), the court was nevertheless obligated to “instruct the jury as to the law applicable to the case.” MCL 768.29. While reading the applicable statute to the jury may well be instructing the jury as to the law applicable to the case in most circumstances, it was not here because the statute contained a term of art jurors are not presumed to understand, i.e., a jury would not understand from a reading of the statute that the existence of factual causation alone would be insufficient to support a guilty verdict.
MCL 769.26; People v Young, 472 Mich 130, 141-142; 693 NW2d 801 (2005).
MCL 769.26 (emphasis added).
466 Mich 335; 646 NW2d 127 (2002).
Id. at 362-363, citing People v Carines, 460 Mich 750; 597 NW2d 130 (1999). Constitutional errors must further be classified as either structural or nonstructural. Cornell, supra at 363.
Id. at 364-365; see also People v Rodriguez, 463 Mich 466, 473-474; 620 NW2d 13 (2000).
460 Mich 484; 596 NW2d 607 (1999).
Id. at 495-496.
Id. (citation omitted).
People v Whittaker, 465 Mich 422, 427; 635 NW2d 687 (2001), quoting People v Elston, 462 Mich 751, 766; 614 NW2d 595 (2000). Recent cases where we found that instructional error required reversal include People v Mass, 464 Mich 615; 628 NW2d 540 (2001), People v Duncan, 462 Mich 47; 610 NW2d 551 (2000), and People v Rodriguez, supra.
As noted earlier, defendant’s expert witness admitted at trial that his defective design theory was inconsistent with the actual history of accidents associated with the exit ramp.
Schaefer brief at 26 (“the judge reminded the jurors that the parties stipulated that the Defendant’s blood alcohol level was 0.16. The reminder of the stipulation is used three times in this instruction ... .”).
Justice Cavanagh’s ex post facto and due process concerns are misplaced. As the United States Supreme Court has held, “The Ex Post Facto Clause, by its own terms, does not apply to courts. Extending the Clause to courts through the rubric of due process thus would circumvent the clear constitutional text.” Rogers v Tennessee, 532 US 451, 460; 121 S Ct 1693; 149 L Ed 2d 697 (2001). Although it is true, as Justice Cavanagh indicates, that prior precedent from the United States Supreme Court and this Court has held that there are due process limitations on the retroactive application of judicial interpretations of criminal statutes that are “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” post at 453-454, we believe that it is not “indefensible or unexpected” that a court would, as we do today, overrule a case that failed to abide by the express terms of a statute.
Because we conclude that the trial court’s other instructional errors were harmless, the Court of Appeals is to consider on remand only whether the trial court’s multiple references to the stipulation constituted error requiring reversal — i.e., that a “miscarriage of justice” occurred, as required by MCL 769.26 and Lukity. If the Court of Appeals determines that no “miscarriage of justice” occurred, defendant’s conviction of OUIL causing death is to be affirmed. | [
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MARKMAN, J.
We granted leave to appeal in this case to resolve two questions: (1) whether a common-law claim of negligent retention can be premised on sexual harassment in light of the remedies provided by the Civil Rights Act (CRA), MCL 37.2101 et seq.; and (2) whether an employer can be held liable under the CRA for sexual harassment against a nonemployee. The trial court granted summary disposition to defendant on both issues, ruling that there was insufficient notice to Ford to support the negligent retention theory, and that plaintiff could not pursue a claim under the CRA without demonstrating at least a “quasi-employment” relationship. The Court of Appeals affirmed with respect to the CRA claim, but reversed with respect to plaintiffs negligent retention claim. We hold that: (1) a common-law claim for negligent retention cannot be premised upon workplace sexual harassment; and (2) because plaintiff has failed to establish a genuine issue of material fact that defendant affected or controlled a term, condition, or privilege of her employment, she cannot bring a claim against defendant under the CRA. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals, and reinstate the. trial court’s order of summary disposition in favor of defendant.
I. FACTS AND PROCEDURAL HISTORY
Defendant Ford Motor Company hired AVI Food Systems to operate three cafeterias at its Wixom assembly plant. Plaintiff Milissa McClements was hired by AVI as a cashier at the Wixom plant in March 1998. Plaintiff testified that Daniel Bennett, then a superintendent in the predelivery department of the plant, had in November 1998 invited her on “three or four” occasions to meet him at a local fast food restaurant. On each occasion, plaintiff rebuffed his invitation. Accord ing to plaintiff, Bennett “seemed very persistent, like he didn’t understand that I wasn’t interested.” Plaintiff acknowledged that, at this point, Bennett was polite, and there was no testimony that he used sexual or foul language. Bennett denies making any such invitations.
Plaintiff described two additional encounters with Bennett that occurred during this same time period. During the first of these encounters, Bennett allegedly entered the cafeteria while it was closed, and approached plaintiff from behind. Plaintiff testified that “I was facing the opposite way. He came up and just grabbed me and turned me around and stuck his tongue in my mouth.” After “a few days,” plaintiff allegedly had a second encounter with Bennett in the closed cafeteria. According to plaintiff, Bennett again grabbed her from behind, attempted to stick his tongue in her mouth, and stated, “Come on, I know you want it. Isn’t there somewhere we can go and have sex?” Plaintiff refused this advance, and Bennett left the cafeteria. Plaintiff allegedly reported the incidents to her union steward, but claims that she was advised that if she reported the incident to defendant, it would “turn around and stab you in the back and you [would] end up losing your job.” Plaintiff did not report the incident to either defendant or AVI until the instant lawsuit was filed.
In 2000, plaintiff was approached by another Ford employee, Justine Maldonado, who claimed that she had also been sexually harassed by Bennett. Specifically, Maldonado claimed that in January or February 1998, Bennett exposed himself to her and demanded oral sex in the parking lot of the Wixom plant. Bennett also allegedly followed Maldonado in his car, got out after she had stopped at a floral shop, and reached into her car and tugged on her blouse. In late-October 1998, Maldonado told Joe Howard, her uncle and a production manager at Wixom, about the incidents. During “the last couple days” in October, Maldonado told David Ferris, a former Ford superintendent who was on temporary assignment to her union, about the incidents. Maldonado testified that she spoke with Ferris just before undergoing knee surgery on November 2, 1998. Ferris testified that “two or three days” later, he confronted Bennett about Maldonado’s accusations. The next day, Ferris informed Jerome Rush, Wixom’s director of labor relations, about the alleged incidents of sexual harassment. Ferris testified that the conversation lasted a minute “at the most.” Rush allegedly told Ferris that he “need not be involved in these types of issues” and took no further action.
Even after learning of the Maldonado incidents, plaintiff did not come forward with her allegations. However, plaintiffs attitude changed after Maldonado informed her in August 2001 that Bennett had exposed himself to three teenage girls. In 1995, Bennett was convicted of misdemeanor indecent exposure, for exposing himself to three teenage girls on 1-275 while he was driving a company car. Defendant was aware of the incident, because the police determined Bennett’s identity by tracing the car through Ford.
After learning about the indecent exposure arrest and conviction, plaintiff filed the instant lawsuit in September 2001. Plaintiff claimed that defendant: (1) negligently retained Bennett, whom it knew had a propensity to sexually harass women; and (2) breached its obligation under the CRA to prevent Bennett from sexually harassing her.
The trial court granted defendant’s motion for summary disposition. First, the trial court found that there was no evidence that defendant knew of Bennett’s propensity to sexually harass women in the workplace. Maldonado’s complaints to her uncle and friend were not sufficient to give defendant notice of Bennett’s sexually harassing behavior and the 1995 conviction alone is insufficient to establish that propensity. Thus, defendant could not be held liable under the negligent retention theory. Second, the trial court found that plaintiff as a nonemployee could not hold defendant liable under the CRA. However, even if defendant were potentially liable under the CRA, it could not be held liable under these circumstances, because its higher management was never made aware of the allegedly sexually harassing behavior. In an unpublished opinion, the Court of Appeals affirmed in part and reversed in part the judgment of the trial court. Unpublished opinion per curiam of the Court of Appeals, issued April 22, 2004 (Docket No. 243764). The Court of Appeals held that defendant’s knowledge of the indecent exposure arrest and Maldonado’s allegations created a genuine issue of material fact whether defendant “knew or should have known of Bennett’s sexually derogatory behavior toward female employees.” However, the Court of Appeals also applied the “economic reality test,” Ashker v Ford Motor Co, 245 Mich App 9, 14; 627 NW2d 1 (2001), and held that defendant was not plaintiffs employer. As a result, the Court of Appeals concluded that plaintiff could not maintain a CRA complaint against an entity that is not her employer. This Court granted defendant’s application for leave to appeal, as well as plaintiffs application for leave to file a cross-appeal. 471 Mich 937 (2004).
II. STANDARD OF REVIEW
We review de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). A motion under MCR 2.116(C)(10) tests the factual support of a plaintiffs claim. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is only permitted if the evidence, while viewed in a light most favorable to the plaintiff, fails to establish a claim as a matter of law. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). We review de novo the questions whether the CRA displaces a common-law claim for negligent retention based upon sexual harassment in the workplace and whether an employer can be held liable under the CRA for sexual harassment against a nonemployee because they are questions of law. Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003).
III. ANALYSIS
The issue in this case is not whether Bennett has engaged in reprehensible conduct either inside or outside the workplace. Rather, the issues are: (1) whether defendant negligently retained Bennett as a supervisor as of the time Bennett allegedly sexually harassed plaintiff, despite the fact that it knew or should have known of his propensity to sexually harass women; and (2) whether defendant is responsible under the CRA for failing to prevent sexual harassment of plaintiff even though plaintiff was not a direct employee of defendant.
A. NEGLIGENT RETENTION CLAIM
Plaintiffs first theory is that defendant negligently retained Bennett as a supervisor aftef learning of his propensity to sexually harass women. In general, an employer is not responsible for an intentional tort in the workplace committed by its employee acting outside the scope of employment. Martin v Jones, 302 Mich 355, 358; 4 NW2d 686 (1942). However, this Court has previously recognized an exception to this general rule of liability when the employer “ ‘knew or should have known of his employee’s propensities and criminal record before commission of an intentional tort by [that] employee ....’” Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189 NW2d 286 (1971) (citation omitted). Plaintiff argues that defendant knew of Bennett’s “propensity” to engage in sexually harassing behavior because of: (1) Bennett’s 1995 indecent exposure conviction; and (2) Maldonado’s complaints to defendant’s supervisor (Howard) and labor relations representative (Rush) concerning Bennett’s harassment. Plaintiff concludes that defendant breached its duty of reasonable care by retaining Bennett despite its knowledge of his previous actions. The Court of Appeals held that whether defendant “knew or should have known” of Bennett’s propensities was a question of fact for the jury.
However, in those cases in which we have held that an employer can be held liable on the basis of its knowledge of an employee’s propensities, the underlying conduct comprised the common-law tort of assault. See Hersh, supra at 412; Bradley v Stevens, 329 Mich 556, 563; 46 NW2d 382 (1951). In the instant case, however, the entire premise for plaintiffs negligent retention claim is the statutorily based tort of sexual harassment. Before passage of the CRA, Michigan did not provide a common-law remedy for workplace discrimination. Pompey v Gen Motors Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). Plaintiffs protections against being sexually harassed in the workplace are wholly creatures of statute. “ ‘Where a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.’ ” Monroe Beverage Co, Inc v Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997), quoting Lafayette Transfer & Storage Co v Pub Utilities Comm, 287 Mich 488, 491; 283 NW 659 (1939). Here, the CRA provides the right to be free from sexual harassment, MCL 37.2103(i), and accords an aggrieved worker the remedy of “a civil action for appropriate injunctive relief or damages, or both.” MCL 37.2801(1). Plaintiffs remedy, then, for any act of sexual harassment is limited to those provided by the CRA. Accord ingly, there is no common-law claim for negligent retention in the context of workplace sexual harassment.
Plaintiff invokes MCL 37.2803, which states that the CRA “shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state.” However, contrary to the dissent’s theory, post at 397, this statutory language does not allow a worker to bring a CRA claim under the guise of a negligent retention claim. Rather, this provision simply allows a worker to bring suit under any legal theory that existed before the passage of the CRA. Thus, a worker would not be barred by the CRA from bringing a common-law negligent retention claim, as long as the premise for that claim is a tort that existed before passage of civil rights legislation.
Therefore, because the CRA provides the exclusive remedy for a claim based on sexual harassment, plaintiff has failed to establish a claim of negligent retention, and no inquiry into whether defendant possessed sufficient notice that Bennett was engaged in sexual harassment is necessary.
B. CIVIL RIGHTS ACT CLAIM
Plaintiffs second theory is that defendant failed to prevent sexual harassment in the workplace. MCL 37.2202(1) states in pertinent part:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system.
Discrimination based on sex includes sexual harassment. MCL 37.2103(i). The statute defines sexual harassment as follows:
Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions:
(i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.
(ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment, public accommodations or public services, education, or housing.
(iii) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment. [MCL 37.2103(i).]
Plaintiff claims that CRA forbids any entity classified as an employer from discriminating against any individual, including nonemployees. Therefore, because the actions of defendant’s employee allegedly created a sexually hostile work environment, defendant can be held hable under the CRA. Defendant, on the other hand, argues that an employer can only be held liable for discrimination against a nonemployee if some form of employment relationship exists between the parties. Both the trial court and the Court of Appeals held that plaintiff was required to prove at least a “quasi-employment relationship” before a claim under the CRA could be maintained. We conclude that, unless an individual can establish a genuine issue of material fact that an employer affected or controlled a term, condition, or privilege of his or her employment, a nonemployee may not bring a claim under the CRA.
Fundamental canons of statutory interpretation require us to discern and give effect to the Legislature’s intent as expressed by the language of its statutes. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). If the language is unambiguous, as is generally the case, Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663 NW2d 447 (2003), “we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.” DiBenedetto, supra at 402.
MCL 37.2201(a) defines an “employer” for purposes of the CRA as “a person who has 1 or more employees, and includes an agent of that person.” As recognized by plaintiff, the language of the statute does not otherwise narrow the scope of who may be considered an employer. Thus, MCL 37.2202 forbids any employer from engaging in acts of discrimination that are prohibited by the CRA. MCL 37.2202 does not state that an employer is only forbidden from engaging in such acts against its own employees. Indeed, the CRA appears to clearly envision claims by nonemployees for the failure or refusal to hire or recruit, MCL 37.2202(l)(a); the improper classification of applicants by a status prohibited under the CRA, MCL 37.2202(l)(b); and the discrimination against former employees by operation of a benefit plan or system, MCL 37.2202(l)(c). Accordingly, to limit the availability of relief under the CRA to those suits brought by an employee against his or her employer is not consistent with the statute.
However, the language of the statute is also clear in requiring some form of nexus or connection between the employer and the status of the nonemployee. MCL 37.2202 forbids an employer from using a classification protected by the CRA: to “discriminate against an individual with respect to .. . a term, condition, or privilege of employment,” MCL 37.2202(1)(a); to “deprive the ... applicant of an employment opportunity,” MCL 37.2202(l)(b); or to “discriminate against a person . . . with respect to a term, condition, or privilege of employment,” MCL 37.2202(1)(c). In other words, an employer is liable under the CRA when it utilizes a prohibited characteristic in order to adversely affect or control an individual’s employment or potential employment. Thus, the key to liability under the CRA is not simply the status of an individual as an “employee”; rather, liability is contingent upon the employer’s af fecting or controlling that individual’s work status. Accordingly, an employer can be held liable under the CRA for discriminatory acts against a nonemployee if the nonemployee can demonstrate that the employer affected or controlled a term, condition, or privilege of the nonemployee’s employment.
In Chiles v Machine Shop, Inc, 238 Mich App 462; 606 NW2d 398 (1999), the Court of Appeals came to the same conclusion while interpreting similar language in the Persons with Disabilities Civil Rights Act (PWD-CRA), MCL 37.1202. In Chiles, an employee injured his back on the job and filed for worker’s compensation benefits. After he was laid off, the employee brought suit under the PWDCRA. The “employer,” who laid off the plaintiff, argued that it was not liable under the PWDCRA because the employee was technically employed by a separate, though affiliated, company. The Court in Chiles noted that the PWDCRA
addresses the conduct of an “employer” who takes adverse employment action against an “individual” because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job. MCL 37.1202(l)(a); MSA 3.550(202)(l)(a). The act does not limit the definition of “employer” to the plaintiffs employer but, instead, simply defines it as a “person who has 1 or more employees.” MCL 37.1201(b); MSA 3.550(201)(b). [Chiles, supra at 468 (emphasis supplied).][ ]
Thus, liability under the PWDCRA “does not require that an employment relationship exist,” but it does require that the employer defendant “have the authority to affect a plaintiffs employment or potential employment.” Id. at 468-469. However, the authority to affect a worker’s employment alone is not sufficient to impose liability upon an employer defendant. Rather, in order to be liable under the PWDCRA, the employer defendant must also “take[] adverse employment action” against the worker plaintiff. Accordingly, under Chiles, the employer defendant must (1) have “the ability to affect adversely the terms and conditions of an individual’s employment or potential employment,” id. at 468; and (2) “take[] adverse employment action against an ‘individual’ because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job .... e.g., discriminatorily refusing to hire an applicant on account of a disability,” id. at 468, quoting MCL 37.1202(l)(a). In other words, the more precise articulation of the Chiles rule is that the employer defendant must, in fact, use such authority by “tak[ing] adverse employment action against an individual” in violation of the PWDCRA. Thus, to be liable under the PWDCRA, the employer defendant must actually affect or control a term, condition, or privilege of an individual’s employment. The Court of Appeals in Chiles determined that the employer defendant directly supervised the employee, controlled what tasks he worked at, and had the ability to fire or discipline the employee. Further, the employer defendant actually affected the plaintiffs employment by laying him off. As a result, the Court of Appeals determined that the parties’ relationship fell within the scope of the PWDCRA and, therefore, the plaintiff could maintain an action under the PWDCRA.
We hold that a worker is entitled to bring an action against a nonemployer defendant if the worker can establish that the defendant affected or controlled a term, condition, or privilege of the worker’s employment. In the instant case, plaintiff has failed to establish that defendant affected or controlled a term, condition, or privilege of her employment. Plaintiff was hired, paid, and subject to discipline by AVI. AVI placed plaintiff in the Wixom plant and had the sole authority to move her to different cafeterias or even to another plant. Plaintiff has failed to demonstrate that defendant affected or controlled whether she was hired, her benefits of employment, or where she was assigned to work. Further, although the cafeterias were located in the Wixom plant, they were operated solely by AVI, and were off-limits to defendant’s employees except during break-times.
We conclude that plaintiff failed to raise a genuine issue of material fact that defendant affected or controlled a term, condition, or privilege of her employment. Accordingly, plaintiff may not maintain a cause of action under the CRA against this defendant, and, again, no inquiry into whether defendant possessed sufficient notice that Bennett was engaged in sexual harassment is necessary.
IV CONCLUSION
We conclude that plaintiff has failed to establish a genuine issue of material fact that defendant affected or controlled a term, condition, or privilege of her employment and, therefore, she cannot bring a claim against defendant under the CRA. Further, we conclude that a common-law claim for negligent retention cannot be premised upon workplace sexual harassment. Accordingly, we affirm the judgment of the Court of Appeals that plaintiff has failed to establish that she may bring a claim under the CRA against this defendant, we reverse the judgment of the Court of Appeals that plaintiff has an actionable claim for negligent retention, and reinstate the trial court’s order of judgment in favor of defendant.
TAYLOR, C.J., and CORRIGAN and YOUNG, JJ., concurred with MARKMAN, J.
Within a month, plaintiff filed a complaint with AVI alleging that she was sexually harassed by a non-AVI contractor. After an investigation, AVI had the offending nonemployee removed from its premises.
The record is replete with confusion over when the alleged incidents took place. In her complaint, plaintiff alleged that the incidents with Bennett occurred in September 1998. However, in her deposition, plaintiff testified that the incident could have taken place in late November, early December 1998, because she “seem[ed] to remember it being Thanksgiving...
In a separate action by Maldonado, we directed oral argument on whether to grant Maldonado’s application for leave to appeal or take other peremptory action permitted by MCR 7.302(G)(1). Maldonado v Ford Motor Co, 471 Mich 940 (2004).
Howard testified that his conversation with Maldonado about the alleged harassment did not take place until October 1999.
Bennett’s conviction was expunged by the district court in November 2001. Before granting summary disposition to defendant, the trial court granted defendant’s motion to strike all references to the conviction from the complaint.
Defendant argues that the Court of Appeals improperly allowed the jury to resolve the issue of whether defendant had a duty towards plaintiff. We agree that whether a duty exists to a particular plaintiff is a question for the court. Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500-501; 418 NW2d 381 (1988). An employer’s duty is to exercise reasonable care in selecting and retaining its employees. However, it is the province of the jury to determine whether an employer has breached that duty by retaining the employee in question. In order for the jury to determine whether an employer has breached this duty, it must first determine whether the employer “knew or should have known” that its employee had a propensity to engage in the conduct that caused the injury to the plaintiff. The propensity at issue in the instant case is an alleged propensity to sexually harass women. Because plaintiffs exclusive remedy for a claim based on sexual harassment is the CEA, there is no question of fact for the jury and, therefore, summary disposition was appropriate. .
We note defendant’s assertion that the Hersh rule is contrary to public policy concerning the rehabilitation of first-time offenders. According to defendant, Hersh encourages employers to refuse to hire anyone who was ever convicted of even a misdemeanor, for fear that they might later be held hable for any conduct by the employee that somehow could be linked, after the fact, to the circumstances of that crime. Because we hold that plaintiffs neghgent retention claim cannot be maintained, there is no need at this time to reach defendant’s pubhc policy argument.
For example, if an employee had a history of committing simple assault, and the employer knew or should have known of that history, then a third party who was assaulted by the employee might be able to hold the employer hable under a neghgent retention theory premised on simple assault.
Both the dissent and the concurrence/dissent argue that plaintiffs neghgent retention claim “implicates other torts such as assault and battery.” Post at 392. While that may be, plaintiff premised her claim on sexual harassment, not assault or battery.
For example, a secretary who works for a temporary employment agency might not be an “employee” at the office where she is sent to fill in. However, there is little question that the employer at that office would dictate a term, condition, or privilege of her employment with the temporary employment agency, at least during the pendency of her temporary employment.
This provision of the PWDCRA is identical in all relevant respects to the CRA. MCL 37.1202(1) states in relevant part:
Except as otherwise required by federal law, an employer shall not:
(a) Fail or refuse to hire, recruit, or promote an individual because of a disability or genetic information that is unrelated to the individual’s ability to perform the duties of a particular joh or position.
(b) Discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a disability or genetic information that is unrelated to the individual’s ability to perform the duties of a particular job or position.
(c) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive an individual of employment opportunities or otherwise adversely affects the status of an employee because of a disability or genetic information that is unrelated to the individual’s ability to perform the duties of a particular job or position.
The definition of an employer is essentially the same under the CRA. MCL 37.2201(l)(a).
Thus, contrary to the concurrence\dissent’s position, the fact that plaintiff produced some evidence that defendant had the ability to “affect or control a term, condition, or privilege of plaintiffs employment,” post at 391, is not sufficient to present a genuine issue of material fact for the jury.
The dissent argues that, because defendant had the authority to control Bennett and Bennett affected a condition of plaintiffs employment, it follows that defendant itself “affect[ed] a condition of plaintiffs employment.” Post at 396. Based on this reasoning, an employer would apparently always be liable for its agent’s creation of a sexually hostile work environment. However, we have held that such imposition of vicarious liability is proper only in sexual discrimination cases in which the employer’s agent has used his or her authority to affect an individu al’s employment. Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000), citing Champion v Nation Wide Security, Inc, 450 Mich 702, 708-709; 545 NW2d 596 (1996). We have declined to treat sexually hostile work environment cases in the same manner, noting that “strict imposition of vicarious liability on an employer ‘is illogical in a pure hostile environment setting’ because, generally, in such a case, ‘the supervisor acts outside ‘the scope of actual or apparent authority to hire, fire, discipline, or promote.’ ” Chambers, supra at 311, quoting Radtke v Everett, 442 Mich 368, 396 n 46; 501 NW2d 155 (1993). We again decline to strictly impose vicarious liability in sexually hostile work environment cases, absent an awareness by the employer of the offensive conduct. | [
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