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CORRIGAN, J.
The issue presented in this case is whether the public has a right to walk along the shores of the Great Lakes where a private landowner ostensibly holds title to the water’s edge. To resolve this issue we must consider two component questions: (1) how the public trust doctrine affects private littoral title; and (2) whether the public trust encompasses walking among the public rights protected by the public trust doctrine.
Despite the competing legal theory offered by Justice MARKMAN, our Court unanimously agrees that plaintiff does not interfere with defendants’ property rights when she walks within the area of the public trust. Yet we decline to insist, as do Justices MARKMAN and YOUNG, that submersion at a given moment defines the bound ary of the public trust. Similarly, we cannot leave uncorrected the Court of Appeals award to littoral landowners of a “right of exclusive use” down to the water’s edge, which upset the balance between private title and public rights along our Great Lakes and disrupted a previously quiet status quo.
Plaintiff Joan Glass asserts that she has the right to walk along Lake Huron. Littoral landowners defendants Richard and Kathleen Goeckel maintain that plaintiff trespasses on their private land when she walks the shoreline. Plaintiff argues that the public trust doctrine, which is a legal principle as old as the common law itself, and the Great Lakes Submerged Lands Act (GLSLA), MCL 324.32501 et seq., protect her right to walk along the shore of Lake Huron unimpeded by the private title of littoral landowners. Plaintiff contends that the public trust doctrine and the GLSLA preserve public rights in the Great Lakes and their shores that limit any private property rights enjoyed by defendants.
Although we find plaintiffs reliance on the GLSLA misplaced, we conclude that the public trust doctrine does protect her right to walk along the shores of the Great Lakes. American law has long recognized that large bodies of navigable water, such as the oceans, are natural resources and thoroughfares that belong to the public. In our common-law tradition, the state, as sovereign, acts as trustee of public rights in these natural resources. Consequently, the state lacks the power to diminish those rights when conveying littoral property to private parties. This “public trust doctrine,” as the United States Supreme Court stated in Illinois Central RCov Illinois, 146 US 387, 435; 13 S Ct 110; 36 L Ed 1018 (1892) (Illinois Central I), and as recognized by our Court in Nedtweg v Wallace, 237 Mich 14, 16-23; 208 NW 51 (1926), applies not only to the oceans, but also to the Great Lakes.
Pursuant to this longstanding doctrine, when the state (or entities that predated our state’s admission to the Union) conveyed littoral property to private parties, that property remained subject to the public trust. In this case, the property now owned by defendants was originally conveyed subject to specific public trust rights in Lake Huron and its shores up to the ordinary high water mark. The ordinary high water mark lies, as described by Wisconsin, another Great Lakes state, where “ ‘the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic.’ ” State v Trudeau, 139 Wis 2d 91, 102; 408 NW2d 337 (1987) (citation omitted). Consequently, although defendants retain full rights of ownership in their littoral property, they hold these rights subject to the public trust.
We hold, therefore, that defendants cannot prevent plaintiff from enjoying the rights preserved by the public trust doctrine. Because walking along the lake-shore is inherent in the exercise of traditionally protected public rights of fishing, hunting, and navigation, our public trust doctrine permits pedestrian use of our Great Lakes, up to and including the land below the ordinary high water mark. Therefore, plaintiff, like any member of the public, enjoys the right to walk along the shore of Lake Huron on land lakeward of the ordinary high water mark. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Defendants own property on the shore of Lake Huron, and their deed defines one boundary as “the meander line of Lake Huron.” Plaintiff owns property located across the highway from defendants’ lakefront home. This case originally arose as a dispute over an express easement. Plaintiffs deed provides for a fifteen-foot easement across defendants’ property “for ingress and egress to Lake Huron,” and she asserts that she and her family members have used the easement consistently since 1967 to gain access to the lake. The parties have since resolved their dispute about plaintiffs use of that easement.
This present appeal concerns a different issue: plaintiffs right as a member of the public to walk along the shoreline of Lake Huron, irrespective of defendants’ private title. During the proceedings below, plaintiff sought to enjoin defendants from interfering with her walking along the shoreline. Defendants sought summary disposition under MCR 2.116(C)(8) and (9), for failure to state a claim upon which relief may be granted and for failure to state a defense. Defendants argued that, as a matter of law, plaintiff could not walk on defendants’ property between the ordinary high water mark and the lake without defendants’ permission.
The trial court granted plaintiff summary disposition under MCR 2.116(1) (2). Although the court concluded that no clear precedent controls resolution of the issue, it held that plaintiff had the right to walk “lakewards of the natural ordinary high water mark” as defined by the GLSLA.
The Court of Appeals reversed the trial court’s order in a published opinion. 262 Mich App 29; 683 NW2d 719 (2004). It stated “[t]hat the state of Michigan holds in trust the submerged lands beneath the Great Lakes within its borders for the free and uninterrupted navigation of the public . ...” Id. at 42. The Court held that, apart from navigational issues, the state holds title to previously submerged land, subject to the exclusive use of the riparian owner up to the water’s edge. Id. at 43. Thus, under the Court of Appeals analysis, neither plaintiff nor any other member of the public has a right to traverse the land between the statutory ordinary high water mark and the literal water’s edge.
We subsequently granted leave to appeal. 471 Mich 904 (2004).
STANDARD OF REVIEW
We review de novo the grant or denial of a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). In a motion under MCR 2.116(C)(8), “[a]ll well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant.” Maiden, supra at 119. As we stated in Nasser v Auto Club Ins Ass’n, 435 Mich 33, 47; 457 NW2d 637 (1990), “a motion for summary disposition under MCR 2.116(C)(9) is tested solely by reference to the parties’ pleadings.”
ANALYSIS
I. THE HISTORY OF THE PUBLIC TRUST DOCTRINE
Throughout the history of American law as descended from English common law, our courts have recognized that the sovereign must preserve and protect navigable waters for its people. This obligation traces back to the Roman Emperor Justinian, whose Institutes provided, “Now the things which are, by natural law, common to all are these: the air, running water, the sea, and therefore the seashores. Thus, no one is barred access to the seashore....” Justinian, Institutes, book II, title I, § 1, as translated in Thomas, The Institutes of Justinian, Text, Translation and Commentary (Amsterdam: North-Holland Publishing Company, 1975), p 65; see also 9 Powell, Real Property, § 65.03(2), p 65-39 n 2, quoting a different translation. The law of the sea, as developed through English common law, incorporated the understanding that
both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high water mark, within the jurisdiction of the Crown of England, are in the King. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation and improvement; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the King’s subjects. Therefore the title, jus privatum, in such lands . .. belongs to the King as the sovereign; and the dominion thereof, jus publicum, is vested in him as the representative of the nation and for the public benefit. [Shively v Bowlby, 152 US 1, 11; 14 S Ct 548; 38 L Ed 331 (1894).]
This rule — that the sovereign must sedulously guard the public’s interest in the seas for navigation and fishing — passed from English courts to the American colonies, to the Northwest Territory, and, ultimately, to Michigan. See Nedtweg, supra at 17; accord Phillips Petroleum Co v Mississippi, 484 US 469, 473-474; 108 S Ct 791; 98 L Ed 2d 877 (1988), quoting Shively, supra at 57.
Michigan’s courts recognized that the principles that guaranteed public rights in the seas apply with equal force to the Great Lakes. Thus, we have held that the common law of the sea applies to the Great Lakes. See Hilt v Weber, 252 Mich 198, 213, 217; 233 NW 159 (1930); People v Silberwood, 110 Mich 103, 108; 67 NW 1087 (1896). In particular, we have held that the public trust doctrine from the common law of the sea applies to the Great Lakes. See Nedtweg, supra at 16-23; Silberwood, supra at 108; State v Venice of America Land Co, 160 Mich 680, 702; 125 NW 770 (1910); accord Illinois Central I, supra at 437.
Accordingly, under longstanding principles of Michigan’s common law, the state, as sovereign, has an obligation to protect and preserve the waters of the Great Lakes and the lands beneath them for the public. The state serves, in effect, as the trustee of public rights in the Great Lakes for fishing, hunting, and boating for commerce or pleasure. See Nedtweg, supra at 16; Venice of America Land Co, supra at 702; State v Lake St Clair Fishing & Shooting Club, 127 Mich 580, 586; 87 NW 117 (1901); Lincoln v Davis, 53 Mich 375, 388; 19 NW 103 (1884).
The state, as sovereign, cannot relinquish this duty to preserve public rights in the Great Lakes and their natural resources. As we stated in Nedtweg, supra at 17:
The State may not, by grant, surrender such public rights any more than it can abdicate the police power or other essential power of government. But this does not mean that the State must, at all times, remain the proprietor of, as well as the sovereign over, the soil underlying navigable waters.... The State of Michigan has an undoubted right to make use of its proprietary ownership of the land in question, [subject only to the paramount right of] the public [to] enjoy the benefit of the trust.
Therefore, although the state retains the authority to convey lakefront property to private parties, it necessarily conveys such property subject to the public trust.
At common law, our courts articulated a distinction between jus privatum and jus publicum to capture this principle: the alienation of littoral property to private parties leaves intact public rights in the lake and its submerged land. See Nedtweg, supra at 20; McMorran Milling Co v C H Little Co, 201 Mich 301, 313; 167 NW 990 (1918); Sterling v Jackson, 69 Mich 488, 506-507; 37 NW 845 (1888) (CAMPBELL, J., dissenting); see also Collins v Gerhardt, 237 Mich 38, 55; 211 NW 115 (1926) (FELLOWS, J., concurring) (recognizing the “different character” of the rights held by the federal government as proprietor and as trustee in an inland navigable stream); Lorman v Benson, 8 Mich 18, 27-28 (1860) (reciting the common-law distinction between jus publicum and jus privatum in a case involving ownership of a riverbed).
Jus publicum refers to public rights in navigable waters and the land covered by those waters; jus privatum, in contrast, refers to private property rights held subject to the public trust. As the United States Supreme Court explained in Shively, supra at 13:
,. In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below the ordinary high water mark, is in the King, except so far as an individual or a corporation has acquired rights in it by express grant or by prescription or usage; and that this title, jus privatum, whether in the King or in a subject, is held subject to the public right, jus publicum, of navigation and fishing. [Citations omitted.]
Thus, when a private party acquires littoral property from the sovereign, it acquires only the jus privatum. Our courts have continued to recognize this distinction between private title and public rights when they have applied the public trust doctrine. Public rights in certain types of access to the waters and lands beneath them remain under the protection of the state. Under the public trust doctrine, the sovereign never had the power to eliminate those rights, so any subsequent conveyances of littoral property remain subject to those public rights. See Nedtweg, supra at 17; see also People ex rel Director of Conservation v Broedell, 365 Mich 201, 205; 112 NW2d 517 (1961). Consequently, littoral landowners have always taken title subject to the limitation of public rights preserved under the public trust doctrine.
II. THE SCOPE OF THE PUBLIC TRUST DOCTRINE
Having established that the public trust doctrine is alive and well in Michigan, we are required in this appeal to examine the scope of the doctrine in Michigan: whether it extends up to the ordinary high water mark or whether, as defendants argue, it applies only to land that is actually below the waters of the Great Lakes at any particular moment.
A. THE GREAT LAKES SUBMERGED LANDS ACT
Plaintiff argues that the Legislature defined the scope of the public trust doctrine and established the outer limits of the doctrine in the GLSLA, thus supplanting our case law. This act, according to plaintiff, manifests a legislative intent to claim all land lakeward of the ordinary high water mark. Thus, plaintiff claims that the public trust extends to all land below the ordinary high water mark as defined in the act, which states that “the ordinary high-water mark shall be at the following elevations above sea level, international Great Lakes datum of 1955: Lake Superior, 601.5 feet; Lakes Michigan and Huron, 579.8 feet; Lake St. Clair, 574.7 feet; and Lake Erie, 571.6 feet.” MCL 324.32502.
We find plaintiffs reliance on the GLSLA to be misplaced. First, the act does not show a legislative intent to take title to all land lakeward of the ordinary high water mark. MCL 324.32502 provides:
The lands covered and affected by this part are all of the unpatented lake bottomlands and unpatented made lands in the Great Lakes, including the bays and harbors of the Great Lakes, belonging to the state or held in trust by it, including those lands that have been artificially filled in. The waters covered and affected by this part are all of the waters of the Great Lakes within the boundaries of the state. This part shall be construed so as to preserve and protect the interests of the general public in the lands and waters described in this section, to provide for the sale, lease, exchange, or other disposition of unpatented lands and the private or public use of waters over patented and unpatented lands, and to permit the filling in of patented submerged lands whenever it is determined by the department that the private or public use of those lands and waters will not substantially affect the public use of those lands and waters for hunting, fishing, swimming, pleasure boating, or navigation or that the public trust in the state will not be impaired by those agreements for use, sales, lease, or other disposition. The word “land” or “lands” as used in this part refers to the aforesaid described unpatented lake bottomlands and unpatented made lands and patented lands in the Great Lakes and the bays and harbors of the Great Lakes lying below and lakeward of the natural ordinary high-water mark, but this part does not affect property rights secured by virtue of a swamp land grant or rights acquired by accretions occurring through natural means or reliction. For purposes of this part, the ordinary high-water mark shall be at the following elevations above sea level, international Great Lakes datum of 1955: Lake Superior, 601.5 feet; Lakes Michigan and Huron, 579.8 feet; Lake St. Clair, 574.7 feet: and Lake Erie, 571.6 feet.
The first sentence of this section states that the act applies only to “unpatented lake bottomlands” and “unpatented made lands.” The fourth sentence, however, defines “land” or “lands” in the act as including not only the bottomlands and made lands described in the first sentence, but also “patented lands in the Great Lakes and the bays and harbors of the Great Lakes lying below and lakeward of the natural ordinary high-water mark----” Thus, the act covers both publicly owned land (the lake bottomlands and made lands described in the first sentence) and privately owned land that was once owned by the state (patented land below the ordinary high water mark). In other words, the act reiterates the state’s authority as trustee of the inalienable jus publicum, which extends over both publicly and privately owned lands. The act makes no claims to alter the delineation of the jus privatum of individual landowners.
Moreover, the act never purports to establish the boundaries of the public trust. Rather, the GLSLA establishes the scope of the regulatory authority that the Legislature exercises, pursuant to the public trust doctrine. Indeed, most sections of the act merely regulate the use of land below the ordinary high water mark. The only section of the act that purports to deal with property rights is § 32511, MCL 324.32511:
A riparian owner may apply to the department for a certificate suitable for recording indicating the location of his or her lakeward boundary or indicating that the land involved has accreted to his or her property as a result of natural accretions or placement of a lawful, permanent structure. The application shall be accompanied by a fee of $200.00 and proof of upland ownership.
As shown previously, a vital distinction in public trust law exists between private title (jus privatum) and those public rights that limit that title (jus publicum). Section 32511 only establishes a mechanism for landowners to certify the boundary of their private property (jus privatum). The boundary of the public trust (jus publicum) — distinct from a boundary on private littoral title — remains a separate question, a question that the act does not answer.
Finally, plaintiff also relies on the following language in § 32502 to argue that the GLSLA establishes the scope of the public trust doctrine:
This part [the GLSLA] shall be construed so as to preserve and protect the interests of the general public in the lands and waters described in this section, to provide for the sale, lease, exchange, or other disposition of unpatented lands and the private or public use of waters over patented and unpatented lands, and to permit the filling in of patented submerged lands whenever it is determined by the department that the private or public use of those lands and waters will not substantially affect the public use of those lands and waters for hunting, fishing, swimming, pleasure boating, or navigation or that the public trust in the state will not be impaired by those agreements for use, sales, lease, or other disposition.[ ]
Again, plaintiffs reliance on this section is misplaced. This sentence states that the act will be construed to protect the public interest. But that rule of construction begs the question and cannot resolve whether the public has an interest in a littoral property in the first place. It provides no reason to expand the public trust beyond the limits established at common law. Thus, we must look elsewhere to determine the precise scope of the public trust to which § 32502 refers.
B. THE PUBLIC TRUST DOCTRINE AS APPLIED TO THE GREAT LAKES
Because the GLSLA does not define the scope of the public trust doctrine in Michigan, we must turn again to our common law.
In applying the public trust doctrine to the oceans, courts have traditionally held that rights protected by this doctrine extend from the waters themselves and the lands beneath them to a point on the shore called the “ordinary high water mark.” See, e.g., Shively, supra at 13; Hardin v Jordan, 140 US 371, 381; 11 S Ct 808; 35 L Ed 428 (1891); see also Hargrave’s Law Tracts, 11, 12, quoted in Shively, supra at 12 (“ ‘The shore is that ground that is between the ordinary high water and low water mark [and this ground belongs to the sovereign.]’ ”). The United States Supreme Court described this common-law concept of the “high water mark” in Borax Consolidated, Ltd v Los Angeles, 296 US 10, 22-23; 56 S Ct 23; 80 L Ed 9 (1935):
The tideland extends to the high water mark. This does not mean ... a physical mark made upon the ground by the waters; it means the line of high water as determined by the course of the tides. By the civil law, the shore extends as far as the highest waves reach in winter. But by the common law, the shore “is confined to the flux and reflux of the sea at ordinary tides.” It is the land “between ordinary high and low-water mark, the land over which the daily tides ebb and flow. When, therefore, the sea, or a bay, is named as a boundary, the line of ordinary high-water mark . is always intended where the common law prevails.” [Citations omitted.]
An “ordinary high water mark” therefore has an intuitive meaning when applied to tidal waters. Because of lunar influence, ocean waves ebb and flow, thus reaching one point on the shore at low tide and reaching a more landward point at high tide. The latter constitutes the high water mark on a tidal shore. The land between this mark and the low water mark is submerged on a regular basis, and so remains subject to the public trust doctrine as “submerged land.” See, e.g., Illinois Central R Cov Chicago, 176 US 646, 660; 20 S Ct 509; 44 L Ed 622 (1900) (Illinois Central II) (“But it is equally well settled that, in the absence of any local statute or usage, a grant of lands by the State does not pass title to submerged lands below [the] high water mark ....”). (Citations omitted; emphasis added.)
Michigan’s courts have adopted the ordinary high water mark as the landward boundary of the public trust. For example, in an eminent domain case concerning property on a bay of Lake Michigan, we held that public rights end at the ordinary high water mark. Peterman v Dep’t of Natural Resources, 446 Mich 177, 198-199; 521 NW2d 499 (1994). Thus, we awarded damages for destruction of the plaintiffs property above the ordinary high water mark that resulted from construction by the state (which occurred undisputedly in the water and within the public trust). Id. Similarly, in an earlier case where the state asserted its control under the public trust doctrine over a portion of littoral property, the Court also employed the high water mark as the boundary of the public trust. Venice of America Land Co, supra at 701-702.
Our Court has previously suggested that Michigan law leaves some ambiguity regarding whether the high or low water mark serves as the boundary, of the public trust. See Broedell, supra at 205-206. But the established distinction in public trust jurisprudence between public rights (jus publicum) and private title (jus privatum) resolves this apparent ambiguity. Cases that seem to suggest, at first blush, that the public trust ends at the low water mark actually considered the boundary of the littoral owner’s private property (jus privatum) rather than the boundary of the public trust (jus publicum). Because the public trust doctrine preserves public rights separate from a landowner’s fee title, the boundary of the public trust need not equate with the boundary of a landowner’s littoral title. Rather, a landowner’s littoral title might extend past the boundary of the public trust. Our case law no where suggests that private title necessarily ends where public rights begin. To the contrary, the distinction we have drawn between private title and public rights demonstrates that the jus privatum and the jus publicum may overlap.
Nor does this recognition of the potential for overlap represent a novel invention. While not binding on Michigan, other courts have similarly accommodated the same practical challenge of fixing boundaries on shifting waters: they acknowledged the possibility of public rights coextensive with private title. See, e.g., State v Korrer, 127 Minn 60, 76; 148 NW 617 (1914) (Even if a riparian owner holds title to the ordinary low water mark, his title is absolute only to the ordinary high water mark and the intervening shore space between high and low water mark remains subject to the rights of the public.); see also North Shore, Inc v Wakefield, 530 NW2d 297, 301 (ND, 1995) (stating that neither the state nor the riparian owner held absolute interests between high and low water mark); Shaffer v Baylor’s Lake Ass’n, Inc, 392 Pa 493, 496; 141 A2d 583 (1958) (subjecting private title held to low water mark to public rights up to high water mark); Flisrand v Madson, 35 SD 457, 470-472; 152 NW 796 (1915) (same as Korrer, supra); Bess v Humboldt Co, 3 Cal App 4th 1544, 1549; 5 Cal Rptr 2d 399 (1992) (noting that it is “well established” that riparian title to the low water mark remained subject to the public trust between high and low water marks).
In the instant case, the Court of Appeals relied extensively on Hilt to set a boundary on where defendants’ property ended and where plaintiffs rights (as a member of the public) began. But our concern in Hilt was the boundary of a littoral landowner’s private title, rather than the boundary of the public trust. See Hilt, supra at 206 (noting that the government conveyed title “to the water’s edge”). Indeed, the Hilt Court endorsed the Nedtweg Court’s discussion of the public trust and decided the issue of the boundary on private littoral title within the context of the public trust doctrine. See id. at 203, 224-225, 227. Consequently, the Court of Appeals erred by granting defendants an exclusive right of use down to the water’s edge, because littoral property remains subject to the public trust and because defendants hold title according to the terms of their deed.
Our public trust doctrine employs a term, “the ordinary high water mark,” from the common law of the sea and applies it to our Great Lakes. While this term has an obvious meaning when applied to tidal waters with regularly recurring high and low tides, its application to nontidal waters like the Great Lakes is less apparent. See, e.g., Lincoln, supra at 385 (noting, amidst a discussion of the extent of private littoral title, some imperfection in an analogy between the Great Lakes and the oceans). In the Great Lakes, water levels change because of precipitation, barometric pressure, and other forces that lack the regularity of lunar tides, which themselves exert a less noticeable influence on the Great Lakes than on the oceans. Applying a term from the common law of the sea, despite the obvious difference between the oceans and the Great Lakes, has led to some apparent discontinuity in the terminology employed in our case law. Notwithstanding some prior imprecision in its use, a term such as “ordinary high water mark” attempts to encapsulate the fact that water levels in the Great Lakes fluctuate. This fluctuation results in temporary exposure of land that may then remain exposed above where water currently lies. This land, although not immediately and presently submerged, falls within the ambit of the public trust because the lake has not permanently receded from that point and may yet again exert its influence up to that point. See Nedtweg, supra at 37 (setting apart from the public trust that land which is permanently exposed by the “recession of water” and so “rendered suitable for human occupation”). Thus, the ordinary high water mark still has meaning as applied to the Great Lakes and marks the boundary of land, even if not instantaneously submerged, included within the public trust. Our sister state, Wisconsin, defines the ordinary high water mark as
the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic. And where the bank or shore at any particular place is of such a character that it is impossible or difficult to ascertain where the point of ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark. [Diana Shooting Club v Husting, 156 Wis 261, 272; 145 NW 816 (1914) (citation omitted).]
Although Diana Shooting Club involved a river, Wisconsin has applied this definition not only to inland waters, but also to the Great Lakes. See R W Docks & Slips, supra at 508-510; Trudeau, supra at 102. This definition has long served a state with which we share a border and that also has an extensive Great Lakes shoreline.
Although we do not import our sister state’s public trust doctrine where this Court has already spoken, we are persuaded to adopt this definition to clarify a term long used but little defined in our jurisprudence. Indeed, Wisconsin’s definition of ordinary high water mark is not far removed from meanings previously recognized in Michigan. See MCL 324.30101(i); 1999 AC, R 281.301(j); Peterman, supra at 198 n 29 (noting a statutory definition regarding inland waters, now enacted as MCL 324.30101[i], when considering the ordinary high water mark on Lake Michigan). This definition also parallels that employed by the federal government. See, e.g., 33 CFR 328.3(e). Thus, we clarify the meaning of “ordinary high water mark” consistently with a definition that has served another Great Lakes state for some hundred years and is in accord with the term’s limited development in our own state.
The concepts behind the term “ordinary high water mark” have remained constant since the state first entered the Union up to the present: boundaries on water are dynamic and water levels in the Great Lakes fluctuate. In light of this, the aforementioned factors will serve to identify the ordinary high water mark, but the precise location of the ordinary high water mark at any given site on the shores of our Great Lakes remains a question of fact.
III. THE PUBLIC TRUST INCLUDES WALKING WITHIN ITS BOUNDARIES
We have established thus far that the private title of littoral landowners remains subject to the public trust beneath the ordinary high water mark. But plaintiff, as a member of the public, may walk below the ordinary high water mark only if that practice receives the protection of the public trust doctrine. We hold that walking along the shore, subject to regulation (as is any exercise of public rights in the public trust) falls within the scope of the public trust.
To reiterate, the public trust doctrine serves to protect resources — here the waters of the Great Lakes and their submerged lands — shared in common by the public. See pp 678-679 of this opinion; see also Venice of America Land Co, supra at 702 (noting that “the State of Michigan holds these lands in trust for the use and benefit of its people”). As trustee, the state must preserve and protect specific public rights below the ordinary high water mark and may permit only those private uses that do not interfere with these traditional notions of the public trust. See Obrecht v Nat’l Gypsum Co, 361 Mich 399, 412-413; 105 NW2d 143 (1960). Yet its status as trustee does not permit the state, through any of its branches of government, to secure to itself property rights held by littoral owners. See Hilt, supra at 224 (“The state must be honest.”).
We first note that neither party contests that walking falls within public rights traditionally protected under our public trust doctrine. Rather, they dispute where, not whether, plaintiff may walk: below the literal water’s edge or below the ordinary high water mark. While the parties’ agreement on this point cannot determine the scope of public rights, this agreement does indicate the existence of a common sense assumption: walking along the lakeshore is inherent in the exercise of traditionally protected public rights.
Our courts have traditionally articulated rights protected by the public trust doctrine as fishing, hunting, and navigation for commerce or pleasure. See Nedtweg, supra at 16; Venice of America Land Co, supra at 702; Lake St Clair Fishing & Shooting Club, supra at 586; Lincoln, supra at 388.
In order to engage in these activities specifically protected by the public trust doctrine, the public must have a right of passage over land below the ordinary high water mark. Indeed, other courts have recognized a “right of passage” as protected with their public trust. See Town of Orange v Resnick, 94 Conn 573, 578; 109 A 864 (1920) (listing as public rights “fishing, boating, hunting, bathing, taking shellfish, gathering seaweed, cutting sedge and . . . passing and repassing”); Arnold v Mundy, 6 NJL 1, 12 (1821) (reserving to the public the use of waters for “purposes of passing and repassing, navigation, fishing, fowling, [and] sustenance”).
We can protect traditional public rights under our public trust doctrine only by simultaneously safeguarding activities inherent in the exercise of those rights. See, e.g., Attorney General, ex rel Director of Conservation v Taggart, 306 Mich 432, 435, 443; 11 NW2d 193 (1943) (permitting wading in a stream pursuant to the public trust doctrine). Walking the lakeshore below the ordinary high water mark is just such an activity, because gaining access to the Great Lakes to hunt, fish, or boat required walking to reach the water. Consequently, the public has always held a right of passage in and along the lakes.
Even before our state joined the Union, the Northwest Ordinance of 1787, art iy protected our Great Lakes in trust: “The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free . . . .” See Northwest Ordinance of 1787, art IV Given that we must protect the Great Lakes as “common highways,” see id., we acknowledge that our public trust doctrine permits pedestrian use-in and of itself-of our Great Lakes, up to and including the land below the ordinary high water mark.
Yet in Hilt, supra at 226, our Court noted the rule stated by the Wisconsin Supreme Court in Doemel v Jantz, 180 Wis 225; 193 NW 393 (1923): “[T]he public has no right of passage over dry land between low and high-water mark but the exclusive use is in the riparian owner . . . .” When read in context, this quotation does not represent a rejection of walking as impermissible within our public trust. As correctly described by Justice MARKMAN, the Hilt Court cited this passage as part of its discussion regarding the Michigan Supreme Court’s correction of an earlier departure from the common law. See post at 745-747. But rather than adopting that rule from Doemel, the Hilt Court listed this rule, among others, to refute the notion that the state held “substantially absolute title” in the lakes and the lands beneath them. Hilt, supra at 224. Instead, “the State has title in its sovereign capacity,” id., pursuant to the public trust doctrine. Consequently, “the right of the State to use the bed of the lake, except for the trust purposes, is subordinate to that of the riparian owner.” Id. at 226, citing Town of Orange, supra at 578. In light of this exception for the public trust, littoral owners’ rights supersede public rights in the same property (by virtue of their ownership) only to the extent that littoral owners’ rights do not contravene the public trust. See id. When the Hilt Court recognized the greater rights of littoral property owners, it did not alter the public trust or preclude the public from walking within it.
We must conclude with two caveats. By no means does our public trust doctrine permit every use of the trust lands and waters. Rather, this doctrine protects only limited public rights, and it does not create an unlimited public right to access private land below the ordinary high water mark. See Ryan v Brown, 18 Mich 196, 209 (1869). The public trust doctrine cannot serve to justify trespass on private property. Finally, any exercise of these traditional public rights remains subject to criminal or civil regulation by the Legislature.
TV RESPONSE TO OUR COLLEAGUES
Our Court unanimously agrees that defendants cannot prevent plaintiff from walking along the shore of Lake Huron within the area of the public trust. Despite the separate theory that undergirds the analysis, Justices MARKMAN and Young agree with the majority that plaintiff may walk along Lake Huron in the area of the public trust.
Moreover, the majority and our colleagues agree on several other points. We agree that the public trust doctrine, descended at common law, applies to our Great Lakes. See Hilt, supra at 202 (“[T]his Court has consistently held that the State has title in fee in trust for the public to submerged beds of the Great Lakes within its boundaries.”). We further agree that the public trust doctrine requires the state as trustee to preserve public rights in the lakes and lands submerged beneath them. See Nedtweg, supra at 16. Finally, we agree that plaintiff retains the same right to walk along the Great Lakes she has always held. Post at 745. That our colleagues disagree with the other members of this Court over the particulars of how far those public rights extend ought not overshadow our fundamental agreement: plaintiff does not interfere with defendants’ property rights when she walks within the public trust.
Despite the sound and fury of Justice MARKMAN’s concurring and dissenting opinion, we do not radically depart from our precedents or destabilize property rights by upholding and applying our common law. While our colleagues in dissent claim to maintain the status quo, they do not do so. Rather, the majority retains and clarifies the status quo. The trial court correctly permitted plaintiff to walk lakeward of the ordinary high water mark. The Court of Appeals also correctly recognized the importance of the public trust doctrine, though we reverse its requirement that plaintiff walk only where water currently lies.
Yet our colleagues in dissent would repeat this error by continuing to grant an exclusive right of possession to littoral landowners. Indeed, they would compound this error by granting littoral landowners all property down to where unsubmerged land ends, which they locate at the water’s edge, regardless of the terms of landowners’ deeds. We would not so casually set aside the countless deeds that order property rights for the length of our state shoreline. We would not give away to littoral landowners the absolute title to public trust land preserved for the people. Such a departure would represent a grave disturbance to the property rights of littoral landowners and of the public.
Notwithstanding Justice Maekman’s characterization of this case as “aberrational,’’post at 711,712, and 755, we have not invented the dispute presented to us. Nor do we have the luxury of forsaking public rights; our Court is one of the “sworn guardians of Michigan’s duty and responsibility as trustee of the [Great Lakes].” See Obrecht, supra at 412. For the reasons described earlier in the opinion, we conclude that public rights may overlap with private title. Consequently, we refuse to enshrine-for the first time in our history-a solitary boundary between them. In this way, we preserve littoral title as landowners have always held it, and we preserve public rights always held by the state as trustee.
In dissent, our colleagues resist acknowledging the boundary of the public trust as the ordinary high water mark. To reach this conclusion, Justice MAEKMAN relies on cases concerning the boundary ofprivate title, rather than the boundary of the public trust. See, e.g., Silber wood; Lake St Clair Hunting & Fishing; Hilt. He refuses to accept our Court’s holding-in a case involving Lake Michigan-that “ ‘the limit of the public’s right is the ordinary high water mark Peterman, supra at 198 (citation omitted). Although he criticizes the majority for vagueness with regard to the definition of that term, we clarify the meaning of that term in a way that allows for the fact-specific inquiry necessary to account for the range of physical forces and variety of landforms along our shoreline. We decline to draw, merely for a charade of clarity, a universal line along the Great Lakes without any factual development of the point in the instant case or legal argument on an issue of significance to our state’s jurisprudence.
Nor does our colleagues’ “water’s edge” concept provide superior clarity. Although the term might intuitively appear to mean where the water meets land, Justice MARKMAN expands the term to include sand dampened by water. See, e.g., post at 744 (“Because by definition such sands are infused with water, the wet sands fall within the definition of ‘submerged lands.’ ”). Our colleagues’ conception of “water’s edge” neglects to account for (1) geography where sand is absent; (2) sudden changes in water levels such as storm surges; (3) what degree of dampness suffices: that identified by touch, sight, or a scientific review that could identify the presence of a single water molecule; and (4) the source of the water, where dampness may arise because of contact with a liquid, such as rain, other than water from the Great Lakes. Also, the instant-by-instant determination of a property boundary affords little certainty to littoral landowners. Given these serious difficulties in applying our colleagues’ “water’s edge” rule and the absence of support in our case law, we refuse to shift the boundary on the public trust away from the ordinary high water mark.
As trustee, the state has an obligation to protect the public trust. The state cannot take what it already owns. Because private littoral title remains subject to the public trust, no taking occurs when the state protects and retains that which it could not alienate: public rights held pursuant to the public trust doctrine. Certainly, the loss of littoral property or riparian rights could result from an unconstitutional taking. See, e.g., Peterman, supra at 198, 208 (compensating the plaintiffs for losses above the ordinary high water mark); see also Bott v Natural Resources Comm, 415 Mich 45, 80; 327 NW2d 838 (1982); Hilt, supra at 225. Yet, here, defendants have not lost any property rights. Rather, they retain their property subject to the public trust, just as all property that abuts the Great Lakes in Michigan remains subject to the public trust, pursuant to our common law.
Justice MARKMAN also criticizes the majority for leaving unanswered many questions, several of which require the adoption of the legal framework that he proposed. Yet this case raises none of the questions that Justice MARKMAN poses. In general, we reserve the judgment of this Court for “actual cases and controversies” and do not “declare principles or rules of law that have no practical legal effect in the case before us ....” Federated Publications, Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002). Accordingly, we decline to rule on issues that are not before us.
v CONCLUSION
We conclude that plaintiff, as a member of the public, may walk the shores of the Great Lakes below the ordinary high water mark. Under longstanding common-law principles, defendants hold private title to their littoral property according to the terms of their deed and subject to the public trust. We therefore reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.
Taylor, C.J., and Cavanagh, Weaver, and Kelly, JJ., concurred with CORRIGAN, J.
Modern usage distinguishes between “littoral” and “riparian,” with the former applying to seas and their coasts and the latter applying to rivers and streams. Black’s Law Dictionary (7th ed). Our case law has not always precisely distinguished between the two terms. Consistent with our recognition that the common law of the sea applies to our Great Lakes, see People v Silberwood, 110 Mich 103, 108; 67 NW 1087 (1896), citing Illinois Central R Co v Illinois, 146 US 387, 437; 13 S Ct 110; 36 L Ed 1018 (1892), we will describe defendants’ property as littoral property. Although we have attempted to retain consistency in terminology throughout our discussion, we will at times employ the term “riparian” when the facts or the language previously employed so dictate. For example, a littoral owner of property on the Great Lakes holds riparian. rights as a consequence of owning waterfront property. See Hilt v Weber, 252 Mich 198, 225; 233 NW 159 (1930).
We note that, in the view of our colleagues, “submerged land” includes not only land that lies beneath visible water, but wet sands that are “infused with water.” See post at 744.
The Great Lakes Submerged Lands Act, formerly MCL 322.701 et seq., is now part of Michigan’s Natural Resources and Environmental Protection Act, MCL 324.101 et seq.
We refer to a similarly situated sister state not for the entirety of its public trust doctrine, but for a credible definition of a term long employed in our jurisprudence. Despite Justice Markman’s protestation over upsetting settled rules, see, e.g., post at 735, we have recourse to this persuasive definition because, as noted by Justice Young, this area of law has been characterized by critical terms receiving less than precise definition. See post at 704.
We note that the parties do not contest the terms of the deed hy which defendants own their property. We take as given that defendants hold title to their property according to the terms of their deed. The record does not reflect any argument over the meaning of the term “meander line” in this context. The issue before us is not how far defendants’ private littoral title extends, but how the public trust affects that title.
In this decision, we consider the public trust doctrine only as it has applied to the Great Lakes and do not consider how it has applied to inland bodies of water.
Although not implicated in this case, we note that the Great Lakes and the lands beneath them remain subject to the federal navigational servitude. This servitude preserves for the federal government control of all navigable waters “for the purpose of regulating and improving navigation ... .” Gibson v United States, 166 US 269, 271-272; 17 S Ct 578; 41 L Ed 996 (1897). “[A]lthough the title to the shore and submerged soil is in the various States and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the Federal government by the Constitution.” Id. at 272. Apart from this servitude, the federal government has relinquished to the state any remaining ownership rights in the Great Lakes. See 43 USC 1311.
Indeed, other states also recognize the distinction between private title and public rights. See, e.g., State v Longshore, 141 Wash 2d 414, 427; 5 P3d 1256 (2000) (“The state’s ownership of tidelands and shorelands is comprised of two distinct aspects — the jus privatum and the jus publicum.”)-, Smith v State, 153 AD2d 737, 739-740; 545 NYS2d 203 (1989) (“This doctrine grows out of the common-law concept of the jus publicum, the public right of navigation and fishery which supersedes a private right ofjus privatum.”) (citations omitted); Bell v Town of Wells, 557 A2d 168, 172-173 (Me, 1989) (stating that the different types of title in the same shore property “remain in force” to this day); see also R W Docks & Slips v State, 244 Wis 2d 497, 509-510; 628 NW2d 781 (2001) (applying the public trust doctrine as adopted in its state constitution).
See Black’s Law Dictionary (7th ed), defining “jus publicum” as “[t]he right, title, or dominion of public ownership; esp., the government’s right to own real property in trust for the public benefit.”
See id.., defining “jus privatum” as “[t]he right, title, or dominion of private ownership.”
A land patent is “[a]n instrument by which the government conveys a grant of public land to a private person.” Black’s Law Dictionary (7th ed), p 1147.
Section 32503 provides that the Department of Environmental Quality (DEQ) may enter into agreements regarding land use or alienate unpatented land to the extent that doing so will not impair “the public trust in the waters .. ..” MCL 324.32503. Section 32504 governs applications for deeds or leases to unpatented lands. MCL 324.32504. Section 32504a concerns the restoration and maintenance of lighthouses. MCL 324.32504a. Section 32505 covers unpatented lake bottomlands and unpatented made lands, again providing that such lands may be conveyed as long as the public trust “will not be impaired or substantially injured.” MCL 324.32505. Sections 32506 through 32509 concern the valuation of unpatented lands and various administrative matters (with § 32509 delegating authority to promulgate rules to the DEQ). MCL 324.32506 through 324.32509. Section 32510 establishes that a violation of the act is a misdemeanor punishable by imprisonment or a fine. MCL 324.32510. Prohibited acts are defined in § 32512, MCL 324.32512, with § 32512a, MCL 324.32512a, specifically focusing on the removal of vegetation. Sections 32513 and 32514 return to administrative matters, such as applications for permits and public notice of hearing. MCL 324.32513 and 324.32514. Section 32515, MCL 324.32515, deals with enlargement of waterways, and § 32516, MCL 324.32516, returns again to the removal of vegetation.
MCL 324.32502.
The Legislature has recognized the public trust in other contexts as well. As early as 1913, the Legislature had made provision for the disposition and preservation of the public trust by entrusting trust lands and waters to the care of the predecessor of the DEQ. See 1913 PA 326, 1915 CL 606 et seq.; see also Nedtweg, supra at 18, 20 (upholding the constitutionality of the act because any authorized uses would yield to the “rights of the public”). In addition, the Legislature has conveyed small fractions of the lakes and shoreline to private parties, though only after ensuring that such conveyances did not disturb the public trust. See, e.g., 1954 PA 41; 1959 PA 31; 1959 PA 84.
This decision relied not simply on a “navigational servitude” unique to that case, but rooted that “navigational servitude” in the public trust doctrine. See id. at 194 n 22, citing Collins, supra at 45-46; Venice of America Land Co, supra; Nedtweg, supra at 16-17.
See La Porte v Menacon, 220 Mich 684; 190 NW 655 (1922) (resolving a dispute between private landowners over a deed term and bounding property at the low water mark); Lake St Clair Fishing & Shooting Club, supra at 587, 594-595 (setting the boundary of private title at the low water mark, while simultaneously endorsing Shively and Illinois Central I and ID; Silberwood, supra at 107 (reciting the holdings of other jurisdictions that a riparian owner’s fee ends at the low water mark); Lincoln, supra at 384 (considering the boundaries of a grant made by the federal government, rather than the boundary on what the government retained). In Collins, supra at 60 (Fellows, J., concurring), our Court differed and used the high water mark as the boundary to private title, but that case involved property on an inland stream.
In People v Warner, 116 Mich 228, 239; 74 NW 705 (1898), the Court appeared to place a single boundary between the riparian owner’s title and state control, stating that “[t]he adjoining proprietor’s fee stops [at the high or low water mark], and there that of the State begins.” Yet this boundary marks “the limit of private ownership.” Id. This recalls the fact that the state might hold proprietary title or, separate from that title, title as trustee to preserve the waters and lands beneath them on behalf of the public. The Court proceeded to distinguish the state’s interest in the waters from the interest of the public in navigation, fish, and fowl. Id. Thus, in context, the Warner Court recognized a boundary on a riparian title, a title that remained subject to the public trust. But the Court did not equate that boundary with the limit of the public trust.
Although in the context of an inland stream case, Justice Fellows noted the possibility of different boundaries on the public trust and riparian ownership in his concurring opinion in Collins, supra at 52, quoting Bickel v Polk, 5 Del 325, 326 (Del Super, 1851):
“The right of fishing in all public streams where the tide ebbs and flows, is a common right, and the owner of land adjoining tide water, though his title runs to low water mark, has not an exclusive right of fishing; the public have the right to take fish below high water mark, though upon soil belonging to the individual, and would not be trespassers in so doing; but if they take the fish above high water mark, or carry them above high water mark and land them on private property, this would be a trespass .... In all navigable rivers, where the tide ebbs and flows, the people have of common right the privilege of fishing, and of navigation, between high and low water mark; though it be over private soil.”
Moreover, the particular issue in Hilt was the boundary of private title on relicted!accreted land, which is not at issue in the present case.
The Hilt Court concluded by stating how the public trust doctrine affected a riparian owner’s private title:
While the upland owner, in a general way, has full and exclusive use of the relicted land, his enjoyment of its use, especially his freedom to develop and sell it, is clouded by the lack of fee title, the necessity of resorting to equity or to action for damages instead of ejectment to expel a squatter, and the overhanging threat of the State’s claim of right to occupy it for State purposes. The State, except for the paramount trust purposes, could make no use of the land .... [Id. at 227.]
While an average member of the public may not require this degree of precision, Trudeau illustrates how a factual dispute over the location of the ordinary high water mark may be resolved. In that case, the parties presented evidence via expert witnesses. Id. at 108. For example, the state’s expert testified that he “analyzed several aerial photographs . . . , the government survey maps, the site’s present configuration, and stereo [three-dimensional] photographs . ...” Id. Numerous resources exist to provide guidance to professionals. See, e.g., Simpson, River & Lake Boundaries: Surveying Water Boundaries — A Manual (Kingman, AZ: Plat Key Publishing, 1994); Cole, Water Boundaries (New York: J Wiley & Sons, 1997). Not surprisingly, this Court requires a survey based on proper monuments to establish an actual property line. Hurd v Hines, 346 Mich 70, 78-for a boundary set by one of our Great Lakes.
Enacted after the GLSLA employed a standard based on International Great Lakes Datum for the Great Lakes, MCL 324.30101(i), which contains definitions previously found in the former Inland Lakes and Streams Act, in relevant part provides:
“Ordinary-high water mark” means the line between upland and bottomland that persists through successive changes in water levels, below which the presence and action of the water is so common or recurrent that the character of the land is marked distinctly from the upland and is apparent in the soil itself, the configuration of the surface of the soil, and the vegetation.
33 CFR 328.3(e) provides:
The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
As our Court has consistently recognized, water boundaries necessarily defy static definition. See Hilt, supra at 219. For example, the common law recognized riparian rights to accretion and reliction. This meant that riparian landowners gained private title to land adjacent to their property that gradually became permanently exposed through erosion or a change in water level. See Peterman, supra at 192-193. The recognition of these riparian rights shows that our courts have refused to fix a line that defies natural processes. Also, the concept of a “moveable freehold” to accommodate the effects of accretion and reliction on the bounds of littoral title shows our acknowledgement of the shifting nature of water boundaries. See id., Klais v Danowski, 373 Mich 262, 275-276; 129 NW2d 414 (1964), and Broedell, supra at 206, all quoting Hilt, supra at 219.
For example, in Hilt, supra at 225, we noted several riparian rights held by landowners whose property abuts water. These riparian rights include the “[u]se of the water for general purposes, as bathing, domestic use, etc. [,]... wharfling] out to navigability [,]... [a]ccess to navigable waters [, and]... [t]he right to accretions.” (Citations omitted.) Moreover, “[r]iparian rights are property, for the taking or destruction of which by the State compensation must be made, unless the use has a real and substantial relation to a paramount trust purpose.” Id.-, see also Peterman, supra at 191. Thus, we have long recognized the value of riparian rights, but those rights remain ever subject to the “paramount” public trust.
Indeed, we have even noted that the public might cut ice or, in the context of inland waters, might float logs downriver. See Lake St Clair Fishing & Shooting Club, supra at 587; Grand Rapids Booming Co v Jarvis, 30 Mich 308, 319 (1874).
This does not imply a right of lateral access in the public, i.e., a right to traverse the land of littoral owners to reach the lands and waters held in trust. See, e.g., Collins, supra at 49.
The Kavanaugh cases departed from the common law by fixing the meander fine as the boundary on private littoral title and by fixing the legal status of land below that fine, regardless of subsequent physical changes. See Hilt, supra at 213; see also Kavanaugh v Rabior, 222 Mich 68; 192 NW 623 (1923); Kavanaugh v Baird, 241 Mich 240; 217 NW 2 (1928).
For example, Justice Markman predicts the appearance of fences along the shore. Yet to the extent that landowners may do as they see fit on their own property, they could always erect a fence. While we share Justice Maekman’s desire to preserve any “long coexistfence] in reasonable harmony,” post at 710 n 2, we find peculiar his implication that resolving an actual instance of disharmony between these parties or correcting the lower court’s departure from our common law equates with this Court’s endorsement of (or even comment on) property owners using fences. Were we to adopt our colleagues’ approach, littoral landowners could place fences as far down as the water’s edge.
Numerous states bound their public trust, not at an instantaneously defined “water’s edge,” but at their high water mark. See, e.g., Barboro v Boyle, 119 Ark 377, 385; 178 SW 378 (1915) (high water mark for a lake); Simons v French, 25 Conn 346, 352-353 (1856) (high water mark on tidal waters); Day v Day, 22 Md 530, 537 (1865) (high water mark on tidally influenced rivers and streams); State v Florida Natural Properties, Inc, 338 So 2d 13, 19 (Fla, 1976) (ordinary high water mark); Freeland v Pennsylvania R Co, 197 Pa 529, 539; 47 A 745 (1901) (ordinary high water mark); Allen v Allen, 19 RI 114, 115; 32 A 166 (1895) (high water mark); State v Hardee, 259 SC 535, 541-542; 193 SE2d 497 (1972) (high water mark on tidally influenced stream).
Indeed, references in other states to “water’s edge” often tie that term to either a high or low water mark. See, e.g., Concord Mfg Co v Robertson, 66 NH 1, 19-21; 25 A 718 (1889); Lamprey v State, 52 Minn 181, 198; 53 NW 1139 (1893); Hazen v Perkins, 92 Vt 414, 419-421; 105 A 249 (1918); Mont Code, § 70-16-201; ND Cent Code, § 47-01-15.
In the absence of a review of the myriad deeds by which landowners hold title to property on the Great Lakes, Justice Markman assumes that their deeds will describe, in some manner, the “water’s edge.” Yet, as he acknowledges, that water’s edge may shift. This could result in water reaching above the low water mark, even though a deed could convey title to the low water mark. See, e.g., La Porte v Menacon, 220 Mich 684, 687; 190 NW 655 (1922) (enforcing a deed that extended private title to the “shore,” meaning the “water’s edge at its lowest mark”).
Justice Markman makes frequent reference to colonial cases, particularly relying on Massachusetts. But as that state’s high court has made clear, at common law the state owned to the mean high water line subject to public rights in navigation and fishing. See Opinion of the Justices to the House of Representatives, 365 Mass 681, 684-685; 313 NE2d 561 (1974). What the court described as the colonial ordinance of 1641 to 1647 changed the common law to allow private title to the low water mark, but even that extended title remained subject to public rights. Id. Unlike Massachusetts, no colonial ordinance altered the common-law concepts in Michigan.
In seeming contradiction to his reading of Peterman, Justice Mark-man does accept that “the ‘ordinary high water mark’ is simply the outside edge of property that may... be regulated to preserve future navigational interests at times of high water ....” Post at 729. He also goes so far as to suggest that our Court has equated the high and low water marks, see post at 748, but the Warner Court on which he relies did not address that issue. Warner, supra at 239 (“If the absence of tides upon the Lakes, or their trifling effect if they can be said to exist, practically makes high and low water mark identical for the purpose of determining boundaries (a point we do not pass upon), the limit of private ownership is thereby marked.”).
Additionally, our precedent stands in contradiction to Justice Young’s intuition that the ordinary high water mark has no application in Michigan. See, e.g., Peterman, supra at 198-199 (calculating damages, at least in part, on the basis of the location of the ordinary high water mark). In contrast, the “wet sand” standard supported by Justice Young appears for the first time in our state in this case. We have serious reservations about adopting the view that he joins Justice Markman in advancing. See post at 744-745.
In apparent tension with his claim that the majority fails to rely on Michigan common law, Justice Markman purports to offer an authoritative definition for ordinary high water mark that derives from a federal case and a 1997 dictionary. See post at 738-739.
We are unpersuaded that Justice Markman’s recitation of natural forces demonstrates a difficulty in ascertaining the ordinary high water mark, because those same forces operate to shift the “water’s edge.” See post at 740-743. If anything, the results of this scientific expedition show the complexity of arriving at a water-tight definition, rather than prove that the “water’s edge” concept escapes similar difficulties.
The United States Supreme Court has held that the issue before us is a matter of state property law. See Phillips Petroleum Co v Mississippi, 484 US 469, 475; 108 S Ct 791; 98 L Ed 2d 877 (1988) (“[T]he individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit.”); see also Shively, supra at 40 (“[T]he title and rights of riparian or littoral proprietors in the soil below high water mark of navigable waters are governed by the local laws of the several States, subject, of course, to the rights granted to the United States by the Constitution.”). | [
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MArkman, J.
The question presented is whether the “open and obvious” doctrine has any application in a claim brought under the “common work area” doctrine. We conclude that it does not.
I. FACTS AND PROCEDURAL HISTORY
This case arises out of a slip and fall incident that occurred during construction of an IMAX theater at Henry Ford Museum in Dearborn. The premises were owned by the Edison Institute, better known as the Henry Ford Museum and Greenfield Village (Edison). Edison signed a construction contract with defendant Turner Construction Company (Turner), whereby Turner agreed to act as the construction manager for the project. Pursuant to this contract, Turner then negotiated trade contractor agreements with subcontractors on behalf of Edison, and administered them as the construction manager.
Plaintiff, an employee of electrical' subcontractor Conti Electric, Inc., was injured on the construction site when he tripped on pipes left on the floor of a storage area that he alleged had served as a passageway. Plaintiff further alleged that the pipes were owned by one of two other subcontractors: either defendant Guideline Mechanical, Inc. (Guideline), the pipefitting subcontractor, or defendant Hoyt, Brum & Link (Hoyt), the plumbing subcontractor.
Plaintiff testified that he had rounded a corner and walked through an archway that, until recently, had been covered with plywood. Plaintiff claimed that he slipped on the pipes as he entered the storage area from behind gangboxes that stood in the walkway. He testified that other pipes closer to eye level distracted his vision as he rounded the gangboxes.
The trial court granted defendants’ motion for summary disposition on the ground that the hazard was open and obvious, citing this Court’s then-recent decision in Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001). The trial court also granted summary disposition to Guideline on the additional ground that no evidence was presented to indicate that the pipes in question belonged to Guideline. The Court of Appeals affirmed in an unpublished per curiam opinion, which was later published at defendants’ request. Ghaffari v Turner Constr Co, 259 Mich App 608; 676 NW2d 259 (2003).
We granted leave to appeal and directed the parties to address whether the open and obvious doctrine has any application in a claim under the common work area doctrine described in Ormsby v Capital Welding, Inc, 471 Mich 45, 54; 684 NW2d 320 (2004), and, if so, how the open and obvious doctrine could be reconciled with Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982), in which this Court concluded that the goal of safety in the workplace would be enhanced by the application of principles of comparative negligence. See Ghaffari v Turner Constr Co, 471 Mich 915 (2004).
II. STANDARD OF REVIEW
This case requires that we consider whether the open and obvious doctrine is applicable in the construction setting. The applicability of a legal doctrine is a question of law that we review de novo. People v Thousand, 465 Mich 149, 156; 631 NW2d 694 (2001). We also review de novo a circuit court’s grant of summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
III. ANALYSIS
The question presented is whether a general contractor, when confronted with potential liability for a job site injury suffered by the employee of a subcontractor, may avoid liability on the basis that the condition giving rise to the injury was open and obvious. In order to answer this question, we must first examine two relevant common-law doctrines: the common work area doctrine and the open and obvious doctrine.
A. THE COMMON WORK AREA DOCTRINE
At common law, property owners and general contractors generally could not be held liable for the negligence of independent subcontractors and their employees. However, in Funk v Gen Motors Corp, 392 Mich 91, 104; 220 NW2d 641 (1974), this Court departed from this traditional framework and set forth an exception to the general rule of nonliability in cases involving construction projects:
We regard it to be part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen. [Emphasis added.]
We also articulated several practical considerations that supported this exception:
Placing ultimate responsibility on the general contractor for job safety in common work areas will, from a practical, economic standpoint, render it more likely that the various subcontractors being supervised by the general contractor will implement or that the general contractor will himself implement the necessary precautions and provide the necessary safety equipment in those areas.
[A]s a practical matter in many cases only the general contractor is in a position to coordinate work or provide expensive safety features that protect employees of many or all of the subcontractors. * * * [I]t must be recognized that even if subcontractors and supervisory employees are aware of safety violations they often are unable to rectify the situation themselves and are in too poor an economic position to compel their superiors to do so. [Id. (internal citation and quotation marks omitted).]
In Ormsby, supra at 54, we listed the elements of what had become known since Funk as the common work area doctrine:
That is, for a general contractor to be held liable under the “common work area doctrine,” a plaintiff must show that (1) the defendant, either the property owner or general contractor, failed to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observable and avoidable dangers (3) that created a high degree of risk to a significant number of workmen (4) in a common work area. [Emphasis added.]
We made clear in Ormsby that only when this test is satisfied may a general contractor be held liable for the alleged negligence of the employees of independent subcontractors with respect to job site safety. Id. at 55-56. The failure to satisfy any one of these elements is fatal to a Funk claim. Id. at 59.
B. THE OPEN AND OBVIOUS DOCTRINE
In general, a premises possessor must exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). However, this duty does not generally require the removal of open and obvious dangers. In Lugo, supra at 516-517, we rearticulated the open and obvious doctrine:
“[W]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee.”
In sum, the general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk. [Internal citations omitted; emphasis added.]
We also stated that the open and obvious doctrine should not be viewed as “some type of ‘exception’ to the duty generally owed invitees,” but rather viewed “as an integral part of the definition of that duty.” Id. at 516.
C. COMPATIBILITY OF THE TWO DOCTRINES
Defendants urge us to find that the two doctrines— the common work area doctrine and the open and obvious doctrine — are compatible and can be applied harmoniously. However, as noted above, for a general contractor to be held liable under the common work area doctrine, a plaintiff must show that the general contractor has failed “to guard against readily observable and avoidable dangers ....” Ormsby, supra at 54. Yet, one could replace the phrase “readily observable and avoidable” as used in Ormsby with the phrase “open and obvious” without significantly changing the meaning of this passage. Thus, an irreconcilable conflict immediately arises: one doctrine (common work area) imposes an affirmative duty to protect against hazards that are open and obvious, while the other (open and obvious) asserts that no duty exists if the hazards are open and obvious. Because of this logical conflict, we have no difficulty in concluding that the open and obvious doctrine and the common work area doctrine are incompatible.
The Court of Appeals recognized in this case that Michigan courts have not expanded the open and obvious doctrine into a general-contractor liability context. Ghaffari, supra at 614. However, the Court then proceeded to conclude that “there is nothing in the history of the open and obvious danger doctrine ... to suggest that the doctrine should not apply in other contexts.” Id. With this conclusion, we respectfully disagree.
In addition to the logical conflict noted above, we recognize that there are several critical distinctions between the two doctrines that demonstrate that they serve different objectives. First, our jurisprudence makes clear that the two doctrines are applicable in entirely different contexts. The open and obvious doctrine is specifically applicable to a premises possessor. Lugo, supra at 516-517. The common work area doctrine, meanwhile, is not applicable to the premises possessor, but rather to a general contractor whose responsibility it is to coordinate the activities of an array of subcontractors. See, generally, Funk and Ormsby.
In Perkoviq v Delcor Homes—Lake Shore Pointe, Ltd, 466 Mich 11; 643 NW2d 212 (2002), this Court recognized the distinction inherent in these two contexts. In Perkoviq, the plaintiff worker was injured when he fell from the roof while painting a partially constructed house. He brought suit against the defendant, the owner and general contractor of the subdivision development, on both premises liability and contractor liabil ity theories. In reversing the Court of Appeals conclusion that genuine issues of material fact existed regarding the plaintiffs premises liability claim, we observed:
The Court of Appeals seems to have confused general contractor liability with the liability of a possessor of premises. In explaining its conclusion that defendant could be liable on a premises liability theory, the Court used analysis that was irrelevant to that theory and would be applicable only to a claim against a general contractor....
The fact that defendant may have additional duties in its role as general contractor, however, does not alter the nature of the duties owed by virtue of its ownership of the premises. [Id. at 19.]
Thus, contrary to the Court of Appeals analysis, Perkoviq makes clear that different duties are owed under each doctrine, and that the legal analyses employed in the two contexts are distinct.
Moreover, Ormsby itself implicitly recognized the fundamental difference between these two contexts. While a premises owner who hires an independent contractor is generally not liable for injuries that the contractor negligently causes, we noted in Ormsby that a premises owner may still be liable for injuries to workers under limited circumstances. Where the premises owner retains sufficient control over the construction project, the owner “steps into the shoes of the general contractor and is held to the same degree of care as the general contractor.” Ormsby, supra at 49. In such a case, the owner would face liability under the “retained control doctrine,” which we described as standing for the proposition
that when the Funk “common work area doctrine” would apply, and the property owner has sufficiently “retained control” over the construction project, that owner steps into the shoes of the general contractor and is held to the same degree of care as the general contractor. Thus, the “retained control doctrine,” in this context, means that if a property owner assumes the role of a general contractor, such owner assumes the unique duties and obligations of a general contractor. [Id. (emphasis added).]
Ormsby made clear that the owner’s liability in such a situation would stem not from the owner’s status as the premises possessor, but from his or her status as the de facto general contractor. In making such a distinction, Ormsby recognized the distinction between the duties a premises possessor owes by virtue of his or her status as a possesso'r, and the duties owed by virtue of retaining control as a contractor over a common work area. Because these duties — articulated in the open and obvious doctrine and the common work area doctrine, respectively — are distinct, so too must be the doctrines that articulate such duties.
A second distinction between the two doctrines that our cases make apparent concerns the issue of worker safety. We note that the application of the open and obvious doctrine in the construction setting would conflict with the reasoning underlying this Court’s holding in Hardy, because it would largely nullify the doctrine of comparative negligence in the construction setting, and effectively restore the complete bar to a contractor’s liability abolished when Hardy eliminated contributory negligence in that setting.
In Hardy, supra at 39, this Court addressed “whether the Funk policy of promoting safety in the workplace would be undermined or enhanced by the application of the principles of comparative negligence.” In adopting comparative negligence, we observed:
In Funk, this Court found the total bar of contributory negligence to be inconsistent with the public policy of promoting safety in the workplace. The Court refused to allow a general contractor and a landowner to “avoid” liability “by pointing to the concurrent negligence of the injured worker in using the [unsafe] equipment.” Before Funk, the contractor could entirely avoid liability by convincing the finder of fact that the plaintiff was even 1% negligent. Apparently it was feared that some contractors might succumb to the temptation of employing skilled defense counsel instead of adequate safety devices....
“To allow defendants in this case to invoke the protection of the contributory negligence doctrine would be tantamount to subverting the very safety concerns that the ... Funk court[] extolled as of paramount importance. Such a position might allow a manufacturer to escape its duty of due care ....”
In stark contrast, the defense of comparative negligence never allows a contractor to entirely “avoid” liability and thus “escape” the duty of due care. Under Placek [v Sterling Hts, 405 Mich 638; 275 NW2d 511 (1979)], the defendant must pay the full percentage of damages caused by his negligence. [Id. at 39-40 (citations omitted).]
The adoption of the open and obvious doctrine in the general contractor setting would tend to thwart the goals of workplace safety advanced by our decisions in Funk and Hardy. If we were to adopt the rule set forth below by the Court of Appeals, we would effectively return to a contributoiy negligence regime. In such a case, no matter how negligent the general contractor was in creating or failing to ameliorate the hazard, the employee would be barred from recovery because the hazard was open and obvious.
Hardy recognized that such bars to recovery “provide a strong financial incentive for contractors to breach the duty to undertake reasonable safety precautions.” Id. at 41. Indeed, such a rule might lead to a paradoxical result — the more egregious (i.e., obvious) the safety violation, the less incentive the contractor would have to ameliorate the hazard, because of the knowledge that obviousness of the hazard would bar the contractor’s liability for the resulting injury. Instead, Hardy adopted a comparative negligence rule on the grounds that such a rule retains a strong incentive for general contractors to maintain workplace safety. Accordingly, we believe that Hardy supports the conclusion that the open and obvious doctrine should remain distinct from the common work area doctrine.
As a third distinction between the two doctrines, we offer a final observation grounded in the nature of the different harms confronted in the realms in which each doctrine is applicable. In particular, there exist unique and distinct attributes of the construction setting that would make the rules applicable in the typical premises liability setting inappropriate.
Construction sites typically involve the comings and goings of multiple subcontractors and their materials, a physical venue that is constantly being subjected to alteration, with any number of open hazards that are evolving by the moment. The hazards existing at construction sites are numerous and may typically come from any one of three dimensions, including from above. These hazards may often be in motion. Loud and sudden noises may surround and distract the construction worker, with many of these noises emanating from the dangerous activities carried out by fellow workers who may be near. Nonetheless, at the same time that he or she is confronted with such an environment, the construction worker must move at a business-like pace in order to carry out his or her job — one that may require considerable physical exertion, and require attention to detail and compliance with demanding professional standards — in a timely manner. This is in contrast to the typical premises liability case in which the open and obvious hazard is found on or near ground level, and in which distractions, although they may sometimes exist, are of a considerably less urgent and persistent character than those faced by the construction worker. While the construction worker still bears the responsibility of carrying out his or her work in a reasonable and prudent manner, the worker will typically encounter more dangers of a more diverse character, and more distractions coming from more directions, than will persons shopping in retail establishments or walking in parking lots or visiting the residences of others, and will generally be less able to avoid a given hazard than the typical invitee or licensee, even if the hazard may be seen after the fact as open and obvious.
It is the general contractor who has the coordinating power and supervisory authority to ensure that this unusual array of physical risks does not devolve into chaos, and it is the general contractor upon whom ultimate responsibility for the safe completion of a project rests. As the overall coordinator of this activity, the general contractor is best situated to ensure workplace safety at the least cost. Because of this position, the duty to keep common work areas safe reasonably falls on the general contractor.
As our analysis today attempts to make clear, the two doctrines at issue are independent of and distinct from one another. The open and obvious doctrine serves as an “integral part of the definition” of the duty a premises possessor owes invitees, Lugo, supra at 516, while the common work area doctrine “is an exception to the general rule of nonliability for the negligent acts of independent subcontractors and their employees,” under which “an injured employee of an independent subcontractor [may] sue the general contractor . . ..” Ormsby, supra at 49. The two doctrines involve completely distinct sets of plaintiffs and defendants, and therefore, as noted in Perkoviq, different sets of duties.
Thus, contrary to the Court of Appeals conclusion, this Court’s cases have not suggested that the two doctrines are compatible, but rather have made clear that the rationale and practical considerations underlying the open and obvious doctrine are separate and distinct from those that underlie the common work area doctrine. Because we reaffirm that the two doctrines are, in fact, distinct, we hold that the open and obvious doctrine has no applicability to a claim under the common work area doctrine, and therefore the trial court erred in granting summary disposition in favor of defendants on the basis that the pipes at issue were an open and obvious hazard.
D. SUBCONTRACTOR LIABILITY
The question remains regarding the liability of the defendant subcontractors, Hoyt and Guideline. Plaintiff argues that summary disposition should not have been granted because a question of fact existed with regard to “whether defendants negligently performed their contractual obligations to clean up and remove safety hazards.” Plaintiff and defendant Hoyt disagree regarding the relevance of our decision in Fultz v Union-Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004).
Moreover, with respect to defendant Guideline, besides granting summary disposition because the condition was open and obvious, the trial court granted summary disposition on the additional ground that no evidence was presented to indicate that the pipes in question belonged to Guideline. Plaintiff argues to this Court, as he did to the Court of Appeals, that summary disposition was inappropriate with regard to Guideline, because a genuine issue of material fact was presented concerning whether it owned the pipes that caused plaintiffs fall. However, in light of its conclusion that the open and obvious doctrine barred plaintiffs claim, the Court of Appeals never addressed this alternate ground for summary disposition.
Because our decision in Fultz was released nine months after the Court of Appeals decision in this case, and because the Court did not address the matter of Guideline’s ownership of the pipes, remand to the Court of Appeals is necessary for resolution of these issues. On remand, the Court shall first consider whether a genu ine issue of material fact exists regarding Guideline’s ownership of the pipes. If it concludes that no such issue exists, then it shall affirm the trial court’s grant of summary disposition for Guideline on that ground. Should the Court conclude that an issue of fact does exist, then the Court shall consider if Guideline, along with Hoyt, owed plaintiff any duty under Fultz.
If the Court concludes that Hoyt, Guideline, or both owed plaintiff a duty under Fultz, the Court shall then remand to the trial court for further proceedings against the relevant subcontractor(s) and Turner. However, should the Court conclude that the subcontractor(s) owed plaintiff no contractual duty, then it shall dismiss Hoyt and Guideline from the suit and remand for further proceedings against Turner only.
IV CONCLUSION
The open and obvious doctrine has no applicability to a claim brought under the common work area doctrine. The two doctrines are conceptually distinct, and our case law has treated them as such. Accordingly, the decision of the Court of Appeals is reversed.
However, because the Court of Appeals declined, on the basis of its findings regarding the applicability of the open and obvious doctrine, to review the alternate ground for summary disposition given with respect to defendant Guideline, and because our decision in Fultz was released after the Court of Appeals decision in the instant case, we remand to that Court to determine the outstanding questions concerning the liability of the subcontractors. Once it has resolved these questions, the Court of Appeals is instructed to further remand to the trial court for further proceedings consistent with this opinion with regard to Turner and, if applicable, Hoyt and Guideline.
Taylor, C.J., and Cavanagh, Weaver, Kelly, Corrigan, and YOUNG, JJ., concurred with MArkman, J.
Although, under the terms of its contract with the premises owner, Turner was in fact a “construction manager,” and not a “general contractor,” the distinction is one without a difference for purposes of our analysis in this case. Because our common work area jurisprudence has heretofore referred to “general contractors,” we will continue to use that term.
At least, absent “special aspects.” Lugo, supra at 517-518.
See, e.g., DeShambo v Anderson, 471 Mich 27, 31; 684 NW2d 332 (2004).
We note that the retained control doctrine is not implicated in the instant case, because none of the remaining defendants is the premises owner. We refer to that doctrine only to point out its recognition that the nature of the liability faced by one who possesses premises, and by one who controls premises during their construction, are distinct.
While the foundational consideration underlying the common work area doctrine is one of job site safety, safety concerns of course are not limited to the construction setting. While our opinion today distinguishes the common work area doctrine from the open and obvious doctrine, we emphasize our view that the latter doctrine also promotes safety concerns, albeit in a different manner. As is apparent from our discussion later in this opinion of the hazards typically found in a construction site, what constitutes “ordinary care” in a premises liability setting may differ substantially from what constitutes “ordinary care” in the construction setting.
In addition, such a rule also ensures that the worker also bears responsibility for his or her own conduct. A comparative negligence regime “enhances the goal of safety in the workplace under these conditions ....” Hardy, supra at 41.
While we decline to review plaintiffs contract-based claim of liability in advance of the Court of Appeals, we note in passing that the subcontractors face no liability under the other theories addressed in this opinion. No liability could attach under a premises liability theory, because the subcontractors were not the premises possessors. See Lugo, supra at 516-517. Nor can the subcontractors face liability under the common work area doctrine, because they did not have control of the work area. We recognized in Ormsby, supra at 56-57, that the common work area doctrine is only applicable' to a general contractor or to a property owner who retains sufficient control of the work so as to act in a superintending capacity (under the “retained control” doctrine). Here, the subcontractors acted as neither. Thus, neither of these doctrines serves as a basis for imposing liability on Hoyt or Guideline. | [
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Corrigan, J.
In these consolidated appeals, we are called upon to clarify our Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986), jurisprudence and provide guidance to our lower courts. Specifically, this Court must decide whether the trial court in these cases determined that Batson had been violated; namely, we must discern whether the trial court concluded that the prosecutor exercised peremptory challenges to exclude certain prospective jurors from the jury pool on the basis of race. On the basis of our reading of the voir dire transcripts, we hold that no Batson violation existed in this case and the trial judge neither explicitly nor implicitly found that the prosecutor purposefully discriminated in the exercise of three peremptory challenges. Having reviewed the whole record and the fair inferences to be drawn from it, we cannot conclude that the trial judge implicitly found that the prosecutor purposefully discriminated. Instead, the trial judge’s ambiguous statements were driven by her goal of ensuring a racially mixed jury, not concern with determining whether the prosecutor’s asserted reasons for exercising peremptory challenges were a pretext. Indeed, the trial judge’s only clear statement reflected her finding that neither the prosecutor nor defense counsel had engaged in racially discriminatory behavior. Accordingly, we affirm defendants’ convictions.
I. FACTUAL BACKGROUND
Defendant Knight and codefendant Rice were charged with first-degree murder, MCL 750.316, stemming from the shooting death of defendant Knight’s former girlfriend. Codefendant Rice was also charged with one count of possession of a firearm during the commission of a felony, MCL 750.227b. The prosecutor’s theory was that defendant Knight had unsuccessfully tried to hire someone to kill his former girlfriend. After his initial efforts failed, according to the prosecutor, defendant Knight bailed codefendant Rice out of jail in exchange for codefendant Rice’s killing the former girlfriend. Defendant Knight and codefendant Rice were tried jointly before the same jury.
During the third day of jury selection, defense counsel initially objected to the prosecutor’s use of peremptory challenges, claiming that the prosecutor was attempting to exclude African-American veniremembers. Defense counsel expressed particular dissatisfaction with the prosecutor’s reason for dismissing veniremember nine, which was that a member of veniremember nine’s family had been convicted of rape. Defense counsel then demonstrated his misunderstanding of Batson by responding, “I don’t believe that whether or not there is assaultive [sic] and battery involved in that particular person’s family is a basis on which to exclude someone when you already have a pattern. I have noticed this pattern since day one of the jury trial. That’s why seventy-five percent of the exclusions have been black.”
The prosecutor immediately interjected that she had excluded three African-American veniremembers and four Caucasian veniremembers and offered race-neutral reasons for excluding the African-American veniremembers. The trial judge stated, “There have been four whites excluded, exempted by the prosecution and three blacks. So just based on that I don’t see a Batson problem.” Defense counsel then commented on the racial composition of the jury pool, stating, “If you have seventy-five percent white prospective jurors, Your Honor, and twenty-five percent black prospective jurors, now the schedule has turned and that’s exactly what we’ve had in three days of jury selection.” Defense counsel appeared to argue here not for the racially neutral exercise of peremptory challenges, but for the exercise of challenges in proportion to the overall racial division of the array. The trial judge then found no Batson violation, stating:
But that’s not the prosecution of the defense’s fault that we are getting largely white jurors. If that’s an issue, that’s another issue, and that can be dealt with another way.
But in this particular case and this particular matter, I do not see a pattern of the prosecution improperly excluding African American males, because they’ve only excluded one, or African American females where two have been excluded.
I think the reasons are acceptable. So I don’t see a problem there.
There’s still right now, I don’t know if this is going to end up being our jurors, but there are quite a few-I don’t know who’s left up there. But the fact that the composition of the jury panel is largely white, it’s like I said, another issue. And that can be dealt with in another way.
I deny the motion that the prosecution has improperly excluding [sic] minorities from the jury panel. [Emphasis added.]
The court then recessed for lunch. After lunch, the prosecutor dismissed three African-American women, veniremembers Bonner, Johnson, and Jones. Defense counsel did not contemporaneously object to the exercise of peremptory challenges against veniremembers Bonner and Johnson. Defense counsel objected only to the dismissal of veniremember Jones, contending that the prosecutor was attempting to exclude black females in violation of Batson, He pointed out that the prosecutor had exercised three consecutive challenges against African-American women. Without waiting for the trial judge’s ruling regarding whether a prima facie showing of purposeful discrimination had been made, the prosecutor immediately provided race-neutral reasons for the three exclusions, although defense counsel had not objected to the challenges regarding veniremembers Bonner and Johnson. The prosecutor stated that she dismissed veniremember Bonner because Bonner was a close relative of two persons convicted of first-degree murder. She dismissed veniremember Johnson because of Johnson’s body language, the tone of her voice, and the hesitant look she gave when she stated that she could be fair. Finally, she dismissed veniremember Jones because Jones was a professional woman who had a daughter close in age to the victim. The prosecutor noted that Jones’s daughter was not “similarly situated” to the victim and that Jones might compare and contrast the lifestyles of the victim and her daughter.
The trial judge responded by stating, “Just before we recessed for lunch, I thought that it was very clear that we didn’t have a problem here. But now I think we are getting very close to a sensitive issue.” The trial judge rejected the prosecutor’s reasons for dismissing venire member Johnson, but stated that she had not objected to Johnson’s dismissal because defense counsel had not objected. The trial judge did not accept the prosecutor’s reasons for dismissing veniremember Jones:
The same thing with Miss Jones. I do not see a reason other than-I mean, it seems to me for the prosecution to say, she has a daughter the same age as the victim, that would seem to work in the prosecution’s favor, just in terms of thinking in the jury selection. So I don’t accept that.
I do see that we are getting close, and there are, I don’t know[,] two or three minority jurors left on this panel. So I think we are getting close to a serious issue here.
I wish that somebody had said something about keeping Miss Jones and Miss Johnson. And then we address this matter because I probably would not have excused either one of them. [Emphasis added.]
Defense counsel interrupted the trial judge at that point to clarify that Jones was the last veniremember struck and that he objected to the exclusion of Jones. Despite defense counsel’s comment, the trial judge stated, “[I]f an objection had been made as far as Miss Johnson and Miss Jones[,] I probably would have addressed it. And I tend to think I probably would have kept them on the jury.”
The prosecutor then stated that dismissal was appropriate as long as she advanced race-neutral reasons for the dismissal. The trial judge replied that she had to either accept or reject the prosecutor’s “neutral” reasons. She further stated, “And I’m not, I’m saying that I think we’re getting close to a sensitive issue here on Jones and Johnson. That’s all I’m saying. I’m making my record too.”
The trial judge twice referred to getting close to a “sensitive issue.” We do not think this language reflects that the sensitive issue was purposeful discrimination. Instead, we believe the sensitive issue was the looming absence of minorities in the array and on the petit jury.
The prosecutor acknowledged the trial judge’s comments. She immediately raised a reverse-Batson challenge to defense counsel’s exercise of peremptory challenges to exclude five female Caucasian veniremembers and one male Caucasian veniremember. Defense counsel again demonstrated his misunderstanding of Batson by stating:
I would indicate to the Court, Your Honor, that sister counsel fails to recognize that there are at least four white women that are on the jury.
I don’t believe with regards to the fact that they happen to be white women, I think the Court also has to recognize that the greatest number of people that have come through that jury, as potential jurors, have been in fact white people.[ ]
Defense counsel then requested that the trial judge first make a ruling regarding his Batson objection. The following colloquy ensued:
[Defense Counsel]-. But, I don’t think the Court ruled on whether or not you’re going to allow Miss Jones to be struck. She’s still downstairs, I’m sure.
[The Trial Judge]: I don’t know if she is or not.
[The Prosecutor]: I thought she was held.
[The Trial Judge]: If she is still here, I’m going to keep her.
[Defense counsel]: Thank you.
[The Deputy]: Miss Jones, she has already gone.
The trial judge then allowed defense counsel to make a record regarding the prosecutor’s revers e-Batson challenge, but never ruled on the challenge. Defense counsel responded by stating, “I believe the answer lies in the panel that’s left. There is no pattern . . . .” After further discussion, the trial judge concluded that any Batson problems that may have occurred were cured because African-American women were fairly represented on the jury panel. She stated:
I’m not satisfied with the prosecutor’s response as to potential juror Jones and Johnson. But I think they’ve already left.
So I’m going to say from this point on let’s be very careful about the selection. If you think that you, if the defense is not satisfied with me just giving a cautionary instruction to the prosecution, then I’ll address any other remedy.
But, realistically I think all of us are being, trying to be conscientious about the selection of these jurors because of the racial makeup of the jury panels, which we don’t have any control over.
I’m just saying, I let Jones and Johnson go without holding them, especially Jones. I guess I should have held her and I didn’t do that. I’ll take the fault for that. But from this point on let’s try to be careful with this jury selection. We are to [sic] close to getting this jury selected. [Emphasis added.]
After sending the deputy to search for veniremember Jones again with no success, the trial judge stated, “I don’t think it is serious enough at this point. We do have some minorities left on the jury panel and I’ll be watching this closely.” Finally, at the end of jury selection, the trial judge commented:
With the panel we ended up with, I think that any Batson problems that may have been there have been cured.
We have the same number if not more jurors, African American female jurors on the panel as if we had kept [veniremember] Johnson and [veniremember] Jones.
I don’t think either side ended up selecting this panel for any other reason other than I think that these are the ones who will be the fair and impartial persons to hear and try this case. [Emphasis added.]
In the end, the jury convicted defendant Knight of first-degree murder and codefendant Rice of first-degree murder and felony-firearm.
Both defendants appealed as of right, and the Court of Appeals affirmed. In defendant Knight’s case, the Court of Appeals found that the prosecutor presented adequate race-neutral reasons for excusing the prospective jurors and, thus, the trial court did not abuse its discretion in rejecting defendant’s Batson challenge. While codefendant Rice’s counsel joined in the Batson challenge at trial, codefendant Rice did not raise the Batson issue in the Court of Appeals. Both defendants sought leave to appeal in this Court.
In lieu of granting leave to appeal, we vacated the judgments of the Court of Appeals and remanded for reconsideration in light of Batson, supra, and Miller-El v Cockrell, 537 US 322, 340; 123 S Ct 1029; 154 L Ed 2d 931 (2003) (Miller-El I). On remand, the Court of Appeals again affirmed the convictions, finding no evidence of purposeful discrimination. We granted leave to appeal and further ordered these cases to be argued and submitted together.
II. LEGAL BACKGROUND
A. THE BATSON PROCEDURE
Under the Equal Protection Clause of the Fourteenth Amendment, a party may not exercise a peremptory challenge to remove a prospective juror solely on the basis of the person’s race. Swain v Alabama, 380 US 202, 203-204; 85 S Ct 824; 13 L Ed 2d 759 (1965); see also Georgia v McCollum, 505 US 42; 112 S Ct 2348; 120 L Ed 2d 33 (1992); Edmonson v Leesville Concrete Co, Inc, 500 US 614; 111 S Ct 2077; 114 L Ed 2d 660 (1991). In Batson, supra at 96-98, the United States Supreme Court announced a three-step process for determining the constitutional propriety of a peremptory challenge. '
First, thé opponent of the peremptory challenge must make a prima facie showing of discrimination. Id. at 96. To establish a prima facie case of discrimination based on race, the opponent must show that: (1) he is a member of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to exclude a member of a certain racial group from the jury pool; and (3) all the relevant circumstances raise an inference that the proponent of the challenge excluded the prospective juror on the basis of race. Id. The United States Supreme Court has made it clear that the opponent of the challenge is not required at Batson’s first step to actually prove discrimination. Johnson v California, _ US _; 125 S Ct 2410; 162 L Ed 2d 129 (2005). Indeed, “so long as the sum of the proffered facts gives ‘rise to an inference of discriminatory purpose,’ ” Batson’s first step is satisfied. Id. at_US_; 125 S Ct 2416; 162 L Ed 2d 138 (internal citation omitted; emphasis added).
Second, if the trial court determines that a prima facie showing has been made, the burden shifts to the proponent of the peremptory challenge to articulate a race-neutral explanation for the strike. Batson, supra at 97. Batson’s second step ‘‘does not demand an explanation that is persuasive, or even plausible.” Purkett v Elem, 514 US 765, 768; 115 S Ct 1769; 131 L Ed 2d 834 (1995). Rather, the issue is whether the proponent’s explanation is facially valid as a matter of law. Id.; Hernandez v New York, 500 US 352, 360; 111 S Ct 1859; 114 L Ed 2d 395 (1991) (plurality opinion). “A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror.. .. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id.
Finally, if the proponent provides a race-neutral explanation as a matter of law, the trial court must then determine whether the race-neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful discrimination. Batson, supra at 98. It must be noted, however, that if the proponent of the challenge offers a race-neutral explanation and the trial court rules on the ultimate question of purposeful discrimination, the first Batson step (whether the opponent of the challenge made a prima facie showing) becomes moot. Hernandez, supra at 359.
B. REVIEWING BATSON CLAIMS
Generally, we review a trial court’s factual findings for clear error. MCR 2.613(C). Further, we review questions of law de novo. People v Nickens, 470 Mich 622, 626; 685 NW2d 657 (2004). As a practical matter, however, appellate courts sometimes struggle with determining whether a particular issue presents a question of law or fact. In some instances, the line can become quite blurred. Batson error claims frequently appear to fall into the blurred category, and courts have labored to formulate a generally accepted standard of review for Batson cases that applies to all levels of the Batson inquiry. The cases at hand give us the opportunity to clarify our own standard for reviewing Batson errors. We conclude that the applicable standard of review depends on which Batson step is at issue before the appellate court.
1. DETERMINING WHAT THE TRIAL COURT HAS RULED
Before a reviewing court can determine which standard of review applies for purposes of Batson’s three steps, the court must first ascertain what the trial court actually ruled. When a trial court methodically adheres to Batson’s three-step test and clearly articulates its findings on the record, issues concerning what the trial court has ruled are significantly ameliorated. See, e.g., United States v Castorena-Jaime, 285 F3d 916, 929 (CA 10, 2002). Not only does faithful adherence to the Batson procedures greatly assist appellate court review, but the parties, the trial court, and the jurors are well-served by thoughtful consideration of each of Bat-son’s steps as well. Thus, we observe that Batson, as a constitutional decision, is not discretionary. Our trial courts must meticulously follow Batson’s three-step test, and we strongly urge our courts to clearly articulate their findings and conclusions on the record.
In the event a trial court fails to clearly state its findings and conclusion on the record, an appellate court must determine on the basis of a fair reading of the record what the trial court has found and ruled. See, e.g., Mahaffey v Page, 162 F3d 481, 482-483 (CA 7, 1998). This is not the preferred route. Because of the importance of the right at stake, as well as the societal and judicial interests implicated, we again direct our trial courts to carefully follow each of Batson’s three steps, and we further urge the courts to clearly articulate their findings and conclusions with respect to each step on the record. Once it is determined what the trial court has found and ruled, the reviewing court must decide what Batson step is at issue in the particular case and how the claim of error should be reviewed.
2. STANDARD OF REVIEW FOR BATSON’S FIRST STEP
While there is somewhat of a consensus on the standards of review applicable to Batson’s second step, and the scope of review for the third step is well-settled, courts appear to be split with regard to the proper standard of review when examining Batson’s first step. For example, the Ninth Circuit Court of Appeals en banc concluded that a trial court’s determination whether the opponent of the peremptory challenge made out a prima facie case of discrimination should be reviewed for clear error. Tolbert v Page, 182 F3d 677 (CA 9, 1999). In Tolbert, the Ninth Circuit concluded that Batson’s first step presented a mixed question of law and fact; however, the Tolbert court reasoned:
At the Batson prima facie showing step, the concerns of judicial administration tip in favor of the trial court and, therefore, a deferential standard of review prevails. Our conclusion is based on the language of Batson itself, which describes the prima facie analysis as a “factual inquiry,” Batson, 476 U.S. at 95, and makes clear that the trial court is to be the primary adjudicator of that analysis: “We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges createf] a prima facie case of discrimination.” Id. at 97 (emphasis added).
Our holding is also consistent with more recent teachings of the Supreme Court, which counsel in favor of applying a deferential standard of review to certain mixed questions. See Salve Regina College v. Russell, 499 U.S. 225, 233, 111 S. Ct. 1217, 113 L Ed 2d 190 (1991). Deferential review is appropriate either “when it appears that the district court is ‘better positioned’ than the appellate court to decide the issue in question,” or when “probing appellate scrutiny will not contribute to the clarity of legal doctrine.” Id. [Tolbert, supra at 682.]
When faced with the same question, however, the Seventh Circuit Court of Appeals concluded that a de novo standard applies to a trial court’s determination whether a prima facie showing of discrimination has been made. Mahaffey, supra at 484. The Seventh Circuit likewise observed that whether the facts alleged by the opponent of the peremptory challenge satisfied the opponent’s burden under Batson’s first step is a mixed question of law and fact. Id. Nonetheless, the Seventh Circuit opined that “[t]he question of whether an inference of discrimination may be drawn from a set of undisputed facts relating to the racial makeup of the jury venire and the prosecutor’s exercise of peremptory challenges is.. . one over which the appellate courts should exercise a degree of control that a clear error standard would not afford.” Id. Moreover, in light of the importance of the constitutional right implicated, the Seventh Circuit reasoned that the de novo standard “would allow for a measure of consistency in the treatment of similar factual settings, rather than permitting different trial judges to reach inconsistent conclusions about the prima facie case on the same or similar facts.” Id. Thus, the Mahaffey Court concluded that the de novo standard of review applies to the prima facie showing of discrimination prong.
Similar to the Seventh Circuit, the Supreme Court of Colorado has also concluded that Batson’s first step is subject to review de novo. Valdez v People, 966 P2d 587, 591 (Colo, 1998). The Valdez court noted that the First, Eighth, and Ninth circuits adhere to a clear error standard when reviewing the prima facie determination under the Batson framework. However, the Colorado Supreme Court also observed that the Tenth Circuit Court of Appeals, as well as appellate courts in Kansas, Tennessee, and Utah, have concluded that Batson’s first step is subject to review de novo. Weighing the aforementioned cases and turning to Title VII case law for additional guidance, the Valdez court concluded:
Therefore, although we afford deference to the trial court’s ultimate determination of a Batson challenge in step three, we believe that the first step involves a question of legal sufficiency over which the appellate court must have plenary review. We continue to defer to the underlying factual findings, including any predicate credibility determinations of the trial court upon which its prima facie determination under Batson is based. However, we hold that the question of whether the defendant has established a prima facie case under Batson is a matter of law, and we apply a de novo standard of review to a trial court’s prima facie determination of the Batson analysis. [Valdez, supra at 591.]
We agree with those jurisdictions that have concluded that Batson’s first step is appropriately categorized as a mixed question of law and fact. We, however, chose to follow Michigan’s well-established procedure of reviewing questions of law de novo and factual findings for clear error. People v McRae, 469 Mich 704, 710; 678 NW2d 425 (2004). We thus conclude that the first Batson step is a mixed question of fact and law that is subject to both a clear error (factual) and a de novo (legal) standard of review. A trial judge must first find the facts and then must decide whether those facts constitute a prima facie case of discrimination under Batson and its progeny.
We acknowledge that the United States Supreme Court has emphasized that the focus of Batson is not merely on the individual criminal defendant. See, e.g., Powers v Ohio, 499 US 400, 405-410; 111 S Ct 1364; 113 L Ed 2d 411 (1991). Rather, the focus is also on the integrity of the judicial system, as well as the rights of the prospective jurors. Id. at 410-414. Unquestionably, ensuring the integrity of the judicial process and maintaining fair jury selection procedures are paramount concerns. However, these concerns do not persuade us that Batson’s first step should be treated any differently than other mixed questions of law and fact. Indeed, we believe that these paramount concerns can be effectuated under our established rules for appellate review. Thus, until the United States Supreme Court holds otherwise, under Batson’s first step, we will review the questions of law de novo and the factual findings for clear error.
3. STANDARD OF REVIEW FOR BATSON’S SECOND STEP
While there appears to be some disagreement about the standard of review for Batson’s second step, we believe that those jurisdictions that have concluded that the second step is subject to review de novo have the better view. See, e.g., United States v Bishop, 959 F2d 820, 821 n 1 (CA 9, 1992); Hurd v Pittsburg State Univ, 109 F3d 1540, 1546 (CA 10, 1997); Valdez, supra at 590. We believe that such an approach is consistent with controlling United States Supreme Court precedent. See, e.g., Hernandez, supra at 359 (“In evaluating the race neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.”) (emphasis added).
It is important to bear in mind that it is not until Batson’s third step that the persuasiveness of the proffered explanation for the peremptory challenge becomes relevant. Purkett, supra at 768. Accordingly, at Batson’s second step, a court is only concerned with whether the proffered reason violates the Equal Protection Clause as a matter of law. See, e.g., United States v Uwaezhoke, 995 F2d 388, 392 (CA 3, 1993) (“Thus, if the government’s explanation does not, on its face, discriminate on the basis of race, then we must find that the explanation passes Batson muster as a matter of law, and we pass to the third step of Batson analysis to determine whether the race-neutral and facially valid reason was, as a matter of fact, a mere pretext for actual discriminatory intent.”). It is also important to bear in mind that only in rare cases is the proffered explanation facially invalid because such direct evidence is equally rare. We thus conclude that the de novo standard governs appellate review of Batson’s second step.
4. STANDARD OF REVIEW FOR BATSON’S THIRD STEP
It is well-settled that a trial court’s determination concerning whether the opponent of the peremptory challenge has satisfied the ultimate burden of proving purposeful discrimination is a question of fact that is reviewed for clear error. Hernandez, supra at 364-365; United States v Hill, 146 F3d 337, 341 (CA 6, 1998). Moreover, the trial court’s ultimate factual finding is accorded great deference. Miller-El I, supra at 340. The United States Supreme Court has observed that “[deference to trial court findings on the issue of discriminator intent makes particular sense in this context because . . . the finding ‘largely will turn on evaluation of credibility.’ ” Hernandez, supra at 365, quoting Batson, supra at 98 n 21. Accordingly, the “clear error” standard comports with the concept that assessment of credibility lies within the trial court’s province. In accordance with well-settled law, we thus conclude that the clear error standard governs appellate review of a trial court’s resolution of Batson’s third step.
5. SUMMARY OF BATSON STANDARD OF REVIEW
In sum, we conclude that the proper standard of review depends on which Batson step is before us. If the first step is at issue (whether the opponent of the challenge has satisfied his burden of demonstrating a prima facie case of discrimination), we review the trial court’s underlying factual findings for clear error, and we review questions of law de novo. If Batson’s second step is implicated (whether the proponent of the peremptory challenge articulates a race-neutral explanation as a matter of law), we review the proffered explanation de novo. Finally, if the third step is at issue (the trial court’s determinations whether the race-neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful discrimination), we review the trial court’s ruling for clear error.
C. REMEDIES FOR BATSON VIOLATIONS
In the present case, defense counsel did not object to the dismissal of veniremembers Bonner and Johnson. Although he referred to Bonner and Johnson during his Batson objection, he only objected to the dismissal of veniremember Jones. Therefore, in this case, the Bat-son objection only pertains to the dismissal of veniremember Jones. In order to ensure that a trial court remedies all purposeful discrimination, however, courts should apply the Batson objection to all strikes in an alleged pattern.
In order for a pattern of strikes to develop, several jurors might be struck without objection until a pattern begins to emerge. If a trial court allowed earlier strikes in a pattern to stand without taking remedial action, the court would potentially be allowing purposeful discrimination. Therefore, most jurisdictions do not consider a Batson objection waived if the prosecution fails to raise it immediately following the strike.
The case of State v Ford, 306 Mont 517, 523; 39 P3d 108 (2001), provided a thorough discussion of the rulings in different jurisdictions regarding Batson error preservation. Several jurisdictions held that a Batson challenge must be made before the jury is sworn, or else the issue is waived. Additionally, numerous courts take the stance that a Batson challenge must also be raised before the court dismisses the venire. One case held that Batson objections were waived once the stricken veniremembers left the courthouse, but the court nonetheless underwent a Batson analysis for each of the discharged veniremembers in the pattern.
There are several reasons why courts require a party to raise a Batson challenge before the venire is dismissed. First, the Batson objection warns the prosecutor, or the person peremptorily striking a juror, that he might be required to provide race-neutral explanations for the strike. United States v Erwin, 793 F2d 656 (CÁ 5, 1986). Furthermore, if a court finds a Batson violation after the venire is dismissed, then there must be a new jury-selection process and a new venire called. State v Cummings, 838 SW2d 4, 6 (Mo App, 1992). If a Batson challenge is made before the venire is discharged, however, the trial court can immediately correct the error and disallow the strike. See State v Parker, 836 SW2d 930 (Mo, 1992).
Therefore, in order to preserve the option of reseating improperly stricken jurors, the court in Parker suggested that “[t]rial courts should refrain from releasing venirepersons who have been peremptorily struck until the venire is excused.” Id. at 936 n 3.
Requiring courts to retain stricken jurors until the end of jury selection, however, could potentially burden trial courts and citizens called in for jury service if the selection process lasts several days. Because of the difficulties in retaining stricken jurors, this Court concludes that a Batson challenge is timely if it is made before the jury is sworn. It must be noted, however, that if stricken veniremembers are dismissed and later found to be part of a pattern of discriminatory strikes, the only remaining remedy for the Batson violation would be to discharge the entire venire and start the process anew. A court may not ignore or fail to remedy the prior improper strikes simply because the court already dismissed the veniremembers.
In the present case, the prosecutor provided race-neutral explanations for her exclusion of veniremembers Bonner and Johnson, even though defense counsel did not specifically object to their dismissals. The trial judge stated that she was not “satisfied with the prosecutor’s response as to potential juror Jones and Johnson,” but because they already left, she did not rule on whether the prosecutor engaged in purposeful discrimination. Instead, she instructed the attorneys to be careful “from this point on” with their selections. If the judge had found a Batson error, however, her only remedial option would have been to dismiss the entire venire and select the jury from a new panel because she had already dismissed the stricken veniremembers.
III. ANALYSIS
The record reflects that the trial judge never explicitly found that the prosecutor violated Batson. Nor can we infer such a finding on this record. Instead, the record is susceptible to the fair inference that the trial judge acted to preserve the presence of minority jurors on the panel, knowing that the jury pool, as a matter of chance, was largely Caucasian. Protecting a defendant’s right to a fair and impartial jury does not entail ensuring any particular racial composition of the jury. The goal of Batson and its progeny is to promote racial neutrality in the selection of a jury and to avoid the systematic and intentional exclusion of any racial group. Taylor v Louisiana, 419 US 522, 538; 95 S Ct 692; 42 L Ed 2d 690 (1975); Holland v Illinois, 493 US 474, 476-480; 110 S Ct 803; 107 L Ed 2d 905 (1990).
As a threshold matter, we must note that our task in resolving these cases is difficult, in large part, because of the trial judge’s failure to rigorously follow the Batson procedures and, more importantly, to clearly articulate her findings and conclusions on the record. Therefore, under these circumstances, we must fairly read the record to determine exactly what the trial judge found and concluded in light of defendants’ Batson objections.
On the basis of our reading of the voir dire transcripts, we conclude that the trial court did not, in fact, find a Batson violation and, thus, there is no error to complain of in these cases. The trial judge’s initial expression of dissatisfaction with the prosecutor’s race-neutral reasons, when considered in context with her subsequent remarks that “we are getting close to a sensitive issue,” related to her concern about the number of minority veniremembers left on the panel. The judge further articulated her actual motivation in the following excerpt: “I think all of us are being, trying to be conscientious about the selection of these jurors because of the racial makeup of the jury panels, which we don’t have any control over.” The triál judge’s remarks do not reflect a finding that the prosecutor engaged in purposeful discrimination. Rather, the comments demonstrate that her true motivation was to ensure some modicum of racial balance in the jury panel. Use of peremptory challenges, however, to ensure racial proportionality in the jury is prohibited by Batson and will be prohibited by proposed MCR 6.412(F) if adopted.
The trial judge never expressly found that the prosecutor exercised peremptory challenges for a racially discriminatory reason. In fact, her comments at the end of jury selection suggest a contrary conclusion. The trial judge was more concerned with achieving a proportionate racial composition on the jury than with the exclusion of veniremember Jones. She ultimately concluded that no Batson violation existed because a satisfactory number of African-American females were still present on the jury.
We reject Justice CAVANAGH’s conclusion that the trial judge ever found that defense counsel met his burden of proving purposeful discrimination. Rather, the trial judge’s focus, as her comments reflect, was to ensure that the racial composition of the jury remained proportionate.
The purpose of Batson is to prevent discriminatory exclusions of veniremembers on the basis of race or gender. Here, the jury pool, by chance, contained a greater number of Caucasians than African-Americans. The trial judge was preoccupied with this fact. Her Batson analysis seemed to be infused with and confused by the erroneous belief that Batson is violated if the challenge resulted in too few minority jurors. The trial judge’s statements did not imply that she would have kept Jones and Johnson on the jury because she thought they had been wrongfully excluded on the basis of race. Rather, her statements implied that she would have kept them on the jury to ensure that the number of African-American jurors remained proportionate to the number of Caucasian jurors.
The trial judge failed to recognize that a defendant is not entitled to a jury of a particular racial composition as long as no racial group is systematically and intentionally excluded. Taylor, supra at 538; Holland, supra at 476-480. Defendants’ jury was drawn from a fair cross section of the community. Nor was any racial group systematically excluded.
IV CONCLUSION
On the basis of our reading of the voir dire transcripts, -we hold no Batson violation occurred in this case and the trial judge neither explicitly nor implicitly found such a violation. Giving the appropriate degree of deference to the trial judge’s ultimate finding that the prosecutor did not engage in purposeful discrimination, we affirm defendants’ convictions.
WEAVER, Young, and Markman, JJ., concurred with Corrigan, J.
Veniremember Jones, believing that she was dismissed, left the courthouse before the trial judge ruled on defense counsel’s Batson objection.
It is not clear from the record whether the trial judge mistakenly referred to veniremember Bonner as veniremember Jones, or truly believed that an objection had not been made regarding veniremember Jones’s dismissal.
Justice Cavanagh claims that defense counsel’s objections did not demonstrate his misunderstanding of Batson. Rather, he states that defense counsel’s comments amount to an attempt to establish a prima facie case of purposeful discrimination by asserting that the prosecutor had engaged in a pattern of systematically excluding African-American veniremembers. We disagree. The record, when read as a whole, clearly demonstrates that defense counsel’s Batson objections were made to prevent the prosecutor from excluding any African-American veniremembers, even if the prosecutor provided race-neutral reasons for doing so, because the majority of the veniremembers, by chance, was Caucasian.
People v Knight, unpublished opinion per curiam of the Court of Appeals, issued October 15, 2002 (Docket No. 231845); People v Rice, unpublished opinion per curiam of the Court of Appeals, issued October 15, 2002 (Docket No. 225865). Both defendants assigned numerous claims of error, but only the Batson issue is relevant for purposes of these appeals.
People v Knight, 468 Mich 922 (2003); People v Rice, 468 Mich 922 (2003).
People v Knight (On Remand), unpublished opinion per curiam of the Court of Appeals, issued October 7, 2003 (Docket No. 231845); People v Rice (On Remand), unpublished opinion per curiam of the Court of Appeals, issued October 7, 2003 (Docket No. 225865).
470 Mich 869 (2004).
US Const, Am Xiy § 1 provides in relevant part: “No State shall... deny to any person within its jurisdiction the equal protection of the laws.”
In Swain, supra at 223-224, the United States Supreme Court required the defendant to show that the prosecution had a practice or pattern of using peremptory challenges in “case after case.” In Batson, supra at 92-93, however, the Court sought to alleviate Swain’s “crippling burden of proof” and eliminated the requirement that the defendant make a prima facie showing by reference to other cases. Further, it must be observed that the striking of even a single juror on the basis of race violates the Constitution. See, e.g., J E B v Alabama ex rel T B, 511 US 127, 142 n 13; 114 S Ct 1419; 128 L Ed 2d 89 (1994) (“The exclusion of even one juror for impermissible reasons harms that juror and undermines public confidence in the fairness of the system.”). See also United States v Clemons, 843 F2d 741, 747 (CA 3, 1988), cert den 488 US 835 (1988); United States v Lane, 866 F2d 103, 105 (CA 4, 1989); United States v Battle, 836 F2d 1084, 1086 (CA 8, 1987); United States v Vasquez-Lopez, 22 F3d 900, 902 (CA 9, 1994); United States v David, 803 F2d 1567, 1571 (CA 11, 1986).
In Johnson, the United States Supreme Court addressed California’s approach to examining Batson’s first step. While the Court recognized that the states have some degree of flexibility in formulating appropriate procedures to comply with Batson, the Court concluded that California’s approach was inappropriate. Id.,_US_; 125 S Ct 2416; 162 L Ed 2d 138. The California Supreme Court had concluded that at Batson’s first step, the opponent of the challenge must present strong evidence that makes discriminatory intent more likely than not. The United States Supreme Court rejected this approach, observing:
We did not intend [Batson’s] first step to be so onerous that a defendant would have to persuade the judge — on the basis of all the facts, some of which are impossible for the defendant to know with certainty — that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. [Id.,_US_; 125 S Ct 2417; 162 L Ed 2d 139.]
See also Herman, Why the court loves Batson: Representation-Reinforcement, colorblindness, and the jury, 67 Tul L R 1807,1814-1815 (1993) (“A criminal defendant is permitted to raise Batson challenges not on the theory that his or her own rights have been violated, but rather on the theory that he or she is being afforded standing to raise the rights of a third party — the prospective juror.”).
See also Johnson, supra,_US_; 125 S Ct 2417-2418; 162 L Ed 2d 140, quoting Purkett, supra at 768 (“The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant’s constitutional claim. ‘It is not until the third step that the persuasiveness of the justification becomes relevant —the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.’ ”).
See, e.g., Miller-El I, supra at 339-340 (internal citations omitted):
Credibility can be measured by, among other factors,... demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.
“Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding ‘largely will turn on evaluation of credibility.’ In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best'evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ”
See State v Wilson, 117 NM 11; 868 P2d 656 (NM App, 1993); United States v Cashwell, 950 F2d 699, 704 (CA 11, 1992); United States v Dobynes, 905 F2d 1192, 1196 (CA 8, 1990). See also People v Hudson, 157 Ill 2d 401; 626 NE2d 161 (1993).
See United States v Biaggi, 909 F2d 662, 679 (CA 2, 1990); Government of Virgin Islands v Forte, 806 F2d 73, 76 (CA 3, 1986); Morning v Zapata Protein (USA), Inc, 128 F3d 213, 216 (CA 4, 1997); United States v Abou-Kassem, 78 F3d 161, 167 (CA 5, 1996); United States v Rodriguez, 917 F2d 1286, 1288 (CA 11, 1990); State v Cummings, 838 SW2d 4 (Mo App, 1992); Sorensen v State, 6 P3d 657, 662 (Wy, 2000); State v Harris, 157 Ariz 35, 36; 754 P2d 1139 (1988).
In State v Jacobs, 803 So 2d 933 (La, 2001), the Louisiana Supreme Court held that the objections to the first three jurors were untimely, and thus waived, because “the jurors were no longer ‘under any instructions’ in the case.” Id. at 939. The reason why Jacobs might not be easily applicable to other cases, however, is that the judge “effectively collapsefd] the first two stages of the Batson procedure ... [and performed] the crucial third step of weighing the defendant’s proof and the prosecutor’s race-neutral reasons to determine discriminatory intent.” Id. at 941. Therefore, although the judge claimed that the objection was untimely, he nonetheless undertook a Batson analysis and determined that there were race-neutral reasons for the jurors’ dismissals.
See, for example, a recent proposal to amend MCR 6.412. This proposed court rule would expressly prohibit the use of peremptory challenges to achieve a racially proportionate jury. It states:
(F) Discrimination in the Selection Process.
(1) No person shall be subjected to discrimination during voir dire on the basis of race, color, religion, national origin, or sex.
(2) Discrimination during voir dire on the basis of race, color, religion, national origin, or sex for the purpose of achieving what the court believes to be a balanced, proportionate, or representative jury in terms of these characteristics shall not constitute an excuse or justification for a violation of this subsection. [See Michigan Bar Journal, June 2005, p 64.]
Justice CAVANAGH states that we rely on the above proposed court rule to support the proposition that the use of peremptory challenges to ensure racial proportionality in the jury is prohibited. We do not rely on the proposal to support this proposition. Rather, we cite to it to show that this Court is considering steps to prevent such problems from occurring in the future.
See also United States v Ovalle, 136 F3d 1092, 1107 (CA 6, 1998), in which the United States Court of Appeals for the Sixth Circuit struck down the Eastern District of Michigan’s jury selection plan, which utilized the “subtraction” method of balancing the jury pool to ensure proportional representation of various racial groups within the community. It held, “The selection of the grand and petit juries from a qualified jury wheel that was derived through racially discriminatory means, and the fact that the Jury Selection Plan was not narrowly tailored to meet any compelling governmental interest, constitute grounds for reversal of the defendants’ convictions.” | [
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T. G. Kavanagh, J.
This is an appeal from a decision of the Court of Appeals which reversed their conviction and awarded new trials to each of the defendants.
The defendants were convicted of second-degree murder by a jury in recorder’s court.
During the course of the trial 1 of the 14 jurors comprising the panel was importuned by someone who talked to that juror about the case. She reported the incident to the judge in chambers:
"The Court: I want you to be perfectly frank in what you are saying to me. I don’t know what it is. The only reason I am having a record made is in the event it is necessary. But I can assure you if you have any fear or anything like that, I will not make it public.
"I am sorry. I don’t recall your name.
"Mrs. Buckner: Phyllis Buckner.
"My husband’s aunt called me Friday and said a friend of hers seen me here in Court. And she called and asked if I was on the Jury that five fellows were involved. I asked her why. She said, 'This friend saw you.’ It is her sister-in-law’s son is one of the defendants. She said she wished she could have seen me first. She would have offered me some kind of money to try to help them out. I said, 'It is nothing I can do about it. It is not left up to me.’ She said, 'She knew it was you. She seen you at Sears before.’ I told her, 'Don’t approach me.’ I don’t know who it is, who the son is or the mother.
"The Court: Now, let me ask you this, Mrs. Buckner: You don’t know any of the people involved?
"Mrs. Buckner: No.
"The Court: Would it bother you in any way in making a determination in this case?
"Mrs. Buckner: Well, since she knows where I am working at, I am afraid in the case it might be a guilty verdict that she might want to do something to me.”
The judge took the matter under advisement, and when approached by the attorneys who had observed the juror going into the judge’s chambers, told the attorneys that she was considering excusing the juror.
At the court’s request, counsel for all of the defendants except defendant Carter stipulated that the juror could be excused. Counsel for Carter demanded disclosure of the nature of the discussion with the juror and, upon the court’s refusal to divulge the topic of the conversation, moved for a mistrial arguing that the defendant has a right to know the reason for dismissal in order to evaluate the possibility of any contamination of other jurors. The motion was denied; the juror remained on the panel for the rest of the day; the juror was apparently excused before the trial resumed the following day; and the trial proceeded to its conclusion.
The Court of Appeals held that the defendants and their counsel had a constitutional right to be present at the inquiry and that the denial of that right to defendant Carter entitled him to a new trial without proof of actual injury or prejudice. The Court relied on People v Medcoff, 344 Mich 108; 73 NW2d 537 (1955) and People v Nickopou los, 40 Mich App 146; 198 NW2d 691 (1972) as authority for its decision. See also People v Palmer, 28 Mich App 624; 185 NW2d 94 (1970).
The Court of Appeals also held that defendants Fountain and Anderson should be given a new trial to avoid a possible miscarriage of justice despite their counsel’s acceptance of the procedure followed by the trial judge in excusing the juror.
The people maintain that the judge’s action was authorized by MCLA 768.18; MSA 28.1041 which read as follows:
“Any judge of a court of record in this state about to try a criminal case which is likely to be protracted, may order a jury empaneled of not to exceed Í4 members, who shall have the same qualifications and shall be empaneled in the same manner as is, or may be, provided by law for empaneling juries in such courts. All of said jurors shall sit and hear said cause. Should any condition arise during the trial of said cause which in the opinion of the trial court justifies the excusal of any of the jurors so empaneled from further service, he may do so and said trial shall proceed, unless the number of said jurors be reduced to less than 12, and in the event that there shall be more than 12 jurors left on said jury after the charge of the court, the clerk of the court in the presence of said court shall place the names of all of the said jurors on slips, folded so as to conceal the names thereon, in a suitable box provided for that purpose, and shall draw therefrom the names of a sufficient number to reduce the jury to 12 members who shall then proceed to determine the issue presented in the manner provided by law.”
They say that Medcoff, supra, Nickopoulos, supra and Palmer, supra are all distinguishable and that People v Van Camp, 356 Mich 593; 97 NW2d 726 (1959), which interprets that statute, controls.
In Medcoff, Nickopoulos and Palmer, one or more of the jurors questioned in the absence of the defendant and his counsel participated in the verdict in each case. In the case at bar the questioned juror did not. Accordingly we agree that these cases do not control decision here.
In Van Camp, supra, where 14 jurors were empaneled the judge observed the demeanor of 1 juror which prompted him to investigate her background and discover that the juror had not answered properly on voir dire and that her son was an habitual criminal who had been sentenced by that court. After charging the jury the judge announced that the juror was excused. Over objection to this action the conviction was affirmed.
This Court held that the judge had not acted arbitrarily in face of the reasons he stated. In the instant case, we too are satisfied that the judge’s reason was valid and that there was no abuse of discretion. The judge excused the juror pursuant to MCLA 768.18; MSA 28.1041, for a reason which would support an excusal on motion. She quite properly saw to it that a record was available for post conviction consideration and her refusal to divulge her reason to counsel does not require reversal in the circumstances of this case.
We agree with the people that the Court of Appeals erred on this point.
Our decision on this point, however, while it makes the people’s other objections moot, does not permit us to affirm the convictions of the defendants.
One of the issues raised in the Court of Appeals was the defendant’s claim that the court should have instructed the jury on manslaughter and assault with intent to do great bodily harm less than murder.
The Court said:
"Two other issues raised on appeal will be discussed in order to decrease the likelihood of error during retrial. The defendants claim that the court should have instructed the jury on manslaughter and assault with intent to do great bodily harm less than murder. The trial court limited the possible verdicts to murder in the second degree and not guilty. The record does not contain defense counsel’s written requests for instructions. See People v Wynn, 386 Mich 627 [194 NW2d 354] (1972). We do find, however, that the testimony presented at the trial would have supported instructions on lesser included offenses if requested.”
GCR 1963, 516.1 provides that a judge may direct the parties to file written requests for instructions at any time. It also provides that the parties may file such requests on their own initiative at or before the close of proofs.
GCR 1963, 516.2 provides that no party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of objection.
The extent of the court’s obligation to charge in the absence of a request to charge or objection to the charge as given and the question whether the court may properly refuse to grant a request first voiced by objection to the court’s instruction as given depends on the reviewing court’s appraisal of the importance of the instruction not given.
In this case the instructions on manslaughter and assault with intent to do great bodily harm less than murder were requested before the judge instructed the jury. The law is well established that where a request to charge has been made, the duty of the trial court is determined by the evidence. If the record contains evidence which would support a conviction of a lesser included offense, it is reversible error to deny the request to charge on such included offense. People v Jones, 273 Mich 430; 263 NW 417 (1935).
See also People v Stevens, 9 Mich App 531; 157 NW2d 495 (1968); 8 Michigan Law & Practice, Criminal Law, § 402 (1973 Supp p 221); 23A CJS, Criminal Law, § 1337, p 923.
Here the Court of Appeals correctly noted that the trial court limited the possible verdict to murder in the second degree or not guilty. This was the error described in People v Jones, supra.
The court instructed the jury that they could find all or any of the defendants guilty of murder in the second degree or not guilty. She persisted in her refusal to give the requested instruction on manslaughter and the requested instruction on assault with intent to do great bodily harm less than murder, explaining her refusal by her analy-. sis of the evidence. This was error for the evidence would have supported a verdict on either of these crimes.
The order of the Court of Appeals reversing the convictions of all three defendants is affirmed.
T. M. Kavanagh, C. J., and Swainson, Williams, and Levin, JJ., concurred with T. G. Kavanagh, J. | [
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Williams, J.
This case forcefully demonstrates the costly consequences of formally contracting to buy and sell realty without describing it precisely in metes and bounds. The written contract of the parties refers to the realty conveyed merely as:
"[Property owned by Seller on 28th Street, Grand Rapids, Michigan, approximately across from Berger, Chevrolet * * * .”
As the facts of this case illustrate, such a description was sorely deficient.
Two issues are raised for our consideration:
First, did the trial court properly receive parol evidence of the negotiations of the seller and buyer prior to the execution of their written contract, in order to determine the meaning of the term "property owned by Seller” in that contract?
Second, can the seller be heard on this appeal to object to the admission of parol evidence of prior negotiations when he raised no objection at trial?
We answer both questions in the affirmative. Accordingly, the Court of Appeals is reversed and the trial court affirmed.
I —TRANSACTION FACTS
The parties commenced negotiations in the fall of 1966 for the sale of the sole Pontiac dealership in Grand Rapids, owned by Goodwin, Inc., to Mr. Coe. Their negotiations were conducted largely at informal meetings at restaurants.
On February 8, 1967, the parties with their attorneys executed a multi-faceted buy-sell contract. The terms of that written agreement pertinent to the sale of the Pontiac dealership provided that seller (Goodwin) sell its assets, equipment, and inventory to buyer (Coe), assign the lease of its Madison Avenue premises to buyer for temporary use:
"pay for the construction of a building and improvements, including used car layout, drives, and parking areas, on property owned by Seller on 28th Street, Grand Rapids, Michigan, approximately across from Berger, Chevrolet * * * (Emphasis added.)
and lease that building and property to buyer.
The buyer, Coe, purchased Goodwin’s equipment and inventory, temporarily took possession of the Madison Avenue premises, and commenced operating the Grand Rapids Pontiac dealership.
On January 5, 1968, however, the date found by the trial court to be the date for performance of the contract, the buyer refused to execute the lease for "property owned by Seller on 28th Street” because it did not encompass three acres at the southwest corner that buyer had understood the contract of sale to include. See Appendix A for map showing configuration of property. The seller did not in fact own this acreage, but the buyer contends that he was induced to believe seller owned it by the seller’s oral and written representations made prior to the execution of their 1967 written agreement.
The seller, Goodwin, sued the buyer for breach of contract. The buyer, Coe, defended by alleging material misrepresentation by seller of the size and shape of the 28th Street property, and counterclaimed for breach of contract for the seller’s failure to lease him "all” the property on 28th Street, including the disputed three-acre parcel.
The buyer testified at trial that the seller had orally represented that the two parcels comprising the 28th Street property constituted 15 acres. Seller contended, however, that it had described its property as consisting of 13 acres only. Furthermore, it is the buyer’s claim that the seller either misrepresented or inadvertently misdescribed the 28th Street property and diagrammed it as having a straight western boundary.
The buyer testified that prior to the signing of their written agreement, the seller’s president diagrammed the 28th Street property, at a luncheon meeting, on a bar napkin (which was lost and not introduced at trial) as follows:
"[H]e told me it was approximately 450 or 500 feet of frontage, and going from the northwest corner of the property, back straight to the railroad tracks, which run diagonally to the southeast, farther than 450 feet; then, a line straight north, back.” (Emphasis added.)
The seller’s president, however, testified in his deposition, portions of which were introduced into evidence at trial, that he did not recall ever telling the buyer the western boundary was straight; that he only represented that the property extended back to the railroad tracks.
In fact, the front parcel, which is basically rectangular, has 450 feet of frontage on its northern boundary bordering on 28th Street, and 550 feet of depth. The back parcel, however, conjoins only 245 feet (instead of 450 feet) of the southern boundary of the front parcel, as it is offset 205 feet to the east of that parcel. The back parcel, which is oddly shaped on its eastern border, is approximately 600 feet in depth going back to the railroad tracks. (Appendix A.)
Therefore, buyer contends that only after signing the February, 1967 contract, but* before executing the lease, did he discover that the back parcel was offset to the east of the front parcel, causing a three-acre jog in the western boundary and a bottleneck of 245 feet where the two parcels adjoined. Buyer contends that this rendered the 28th Street property totally unsatisfactory for construction of Grand Rapids’ sole Pontiac dealership showroom and facilities since automobiles are best displayed on basically rectangular premises. Also, buyer testified that only after execution of the contract did he discover that seller’s title to the 28th Street property was clouded — by an easement across the property, and by the reservation of dirt removal rights by the land contract vendors which if exercised would result in a dropoff of approximately 16 feet between the two parcels.
II —TRIAL AND APPELLATE FACTS
The case was tried before the court without a jury. There was no objection to the receipt of parol evidence at trial regarding the property intended to be sold.
Each of the parties introduced extrinsic evidence of prior negotiations to prove his case. Goodwin, the seller, called Coe, the buyer, as its first witness to cross-examine him, under the opposite party statute MCLA 600.2161; MSA 27A.2161, as to his recollection of their prior conversations regarding the 28th Street property, and of the sketch diagram of the property the seller had drawn on the bar napkin. Seller sought to show by extrinsic evidence that the parties had made a fully integrated contract and that the words "property owned by Seller” were unambiguous.
The buyer, Coe, also called the seller’s president under the opposite party statute to establish that the seller’s recollection of their prior negotiations was comparatively vague, and to elicit extrinsic evidence probative that "property owned by Seller on 28th Street” was ambiguous, or that the contract was not a fully integrated agreement, or that the agreement was induced by the seller’s misrepresentations.
During the trial, the court did not rule on whether the parol evidence was admissible, but in his "findings of fact and conclusions of law” the trial judge found there was ambiguity in the term "property owned by Seller”. The Court further found that the parties had agreed upon the sale and purchase of a larger piece of property than the seller in fact owned:
"there was a meeting of the minds between Mr. Goodwin [seller’s president] * * * and [Mr. Coe, buyer] on the configuration of the property to be used as a site for the proposed construction on 28th Street, which meeting of the minds encompassed a property boundary on the west which was straight and without 'the jog’ of which we have heard so much * * * . The meetings [sic] of minds occurred as a result of a mistake on the part of Mr. Goodwin [seller’s president]. This mistake may be categorized as a misrepresentation; it may have been on purpose; it may have been sincere or it may have been simply the result of carelessness, indifference or inattention. I don’t think the Court really has to determine the reason for the mistake. But the Court does find that Mr. Coe’s [buyer’s] description of what happened during the negotiations prior to execution of the written contract on February 8, 1967, were [sic] correct — that the west boundary was to be a straight one. The Court bases this conclusion to a good extent on the demeanor of the parties on the witness stand. Mr. Coe was very certain in his recollection of these negotiations and the explanation by Mr. Goodwin of the configuration of the property. Mr. Goodwin, on the other hand, was somewhat vague both during trial and during prior deposition testimony.”
Applying the principle that he who commits the first substantial breach of contract cannot recover from the other for subsequent failure to perform, Jones v Berkey, 181 Mich 472, 480; 148 NW 375 (1914), the trial judge found that the seller, Goodwin, having first materially breached by failing to enter into a lease of "all” the 28th Street property, including the disputed three-acre parcel that he had represented he owned (and which he could have purchased), was not entitled to damages from the buyer.
The court awarded the buyer, Coe, $181,000 in damages on his counterclaim for breach of contract by the seller.
The Court of Appeals reversed, finding that the words in the written contract "owned by” had
"a clear and definite meaning, i.e., denoting an absolute and unqualified title. Black’s Law Dictionary (4th ed), p 1259; Palm Springs-LaQuinta Development Co v Palm Springs Land & Irrigation Co, 36 Cal App 2d 730; 98 P2d 530 (1940). Thus, the words "owned by” can only be interpreted as meaning present ownership. The words are not ambiguous so as to permit any implication that they mean property to be acquired in the future nor are they ambiguous so as to permit extrinsic parol evidence to so interpret them.” 43 Mich App 640, 645-646; 204 NW2d 749 (1972).
Therefore, the Court of Appeals found that the parol evidence of prior negotiations was improperly admitted. However, the Court remanded for a new trial to afford the buyer an opportunity to proffer the parol evidence by proper means.
We reverse the judgment of the Court of Appeals and affirm the trial court.
III —PAROL EVIDENCE RULE
A. PAROL EVIDENCE RULE: GENERAL
The Court of Appeals unexceptionally stated the basic parol evidence rule as follows:
"It is well established that where a contract is clear and unambiguous, parol evidence of negotiations cannot be admitted to vary the contract. Salzman v Maldaver, 315 Mich 403 [24 NW2d 161] (1946); Detroit Edison Co v Zoner, 12 Mich App 612 [163 NW2d 496] (1968).”
A number of well-established exceptions to the parol evidence rule have been recognized, however, by Michigan courts. For example, the rule does not preclude admission of extrinsic evidence showing: that the writing was a sham, not intended to create legal relations, Tepsich v Howe Construction Co, 377 Mich 18, 23-25; 138 NW2d 376 (1965); that the contract has no efficacy or effect because of fraud, illegality, or mistake, Rood v Midwest Matrix Mart, Inc, 350 Mich 559, 564-567; 87 NW2d 186 (1957); Schupp v Davey Tree Expert Co, 235 Mich 268, 271; 209 NW 85 (1926); that the parties did not "integrate” their agreement, or assent to it as the final embodiment of their understanding, Mardon v Ferris, 328 Mich 398, 400; 43 NW2d 904 (1950); Wagner v Egleston, 49 Mich 218; 13 NW 522 (1882); or that the agreement was only "partially integrated” because essential elements were not reduced to writing, Brady v Central Excavators, Inc, 316 Mich 594; 25 NW2d 630 (1947).
B. PAROL EVIDENCE RULE: THIS CASE
There are a number of Michigan cases from which a rule of law can be deduced for this case.
This Court unanimously, speaking through Jus tice Adams, held in New Amsterdam Casualty Co v Sokolowski, 374 Mich 340, 342; 132 NW2d 66 (1965):
"If the language of the contract is clear and unambiguous, it is to be construed according to its plain sense and meaning; but if it is. ambiguous, testimony may be taken to explain the ambiguity.”
The language in question was:
"The contractor further agrees to assume any and all subcontracts and purchase orders placed by the original contractor which remained unfulfilled as of September 1, 1954, and to make prompt payments for all material, equipment and supplies, and to subcontractors, if any, of all balances to become due such suppliers and subcontractors, for materials furnished and labor performed after September 1, 1954.” 374 Mich 340, 341.
The issue was whether these words implied the contractor assumed both the work and the debts contracted prior to September 1, 1954 or just the work. This Court affirmed the trial court that looked to the circumstances at the time of contracting and found that the financial condition of the contractor was such he could not have undertaken to assume the prior debts and consequently held that the quoted language meant that the contractor assumed only the prior contracted work and not the debts which he could not have afforded to do.
Chief Justice T. M. Kavanagh speaking for a unanimous Court said in McCarty v Mercury Metalcraft Co, 372 Mich 567, 575; 127 NW2d 340 (1964) cert den, 380 US 952; 85 S Ct 1085; 13 L Ed 2d 969 (1965):
"Defendant correctly contends that where a latent ambiguity exists in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties as an aid to the construction of the contract.
"A latent ambiguity is one 'where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among 2 or more possible meanings.’ Black’s Law Dictionary (4th ed), p 105. Since the detection of latent ambiguity requires a consideration of factors outside the instrument itself, extrinsic evidence is obviously admissible to prove the existence of the ambiguity, as well as to resolve any ambiguity proven to exist.” (Emphasis added.)
The issue was whether a contract phrase "all orders” literally meant all orders or whether it referred only to "prototype” orders. This Court upheld the trial court’s admitting parol evidence to find that there was no ambiguity.
This case is significant for our inquiry in two respects. First, it recognizes that the detection of an ambiguity requires admissibility of extrinsic evidence to prove it or, as in this case, disprove it, "as well as to resolve any ambiguity proven to exist”. Second, "extrinsic evidence is admissible to indicate the actual intent of the parties”.
It is noted in passing that in this case, as well as in some others, a distinction is made between "latent” and "patent” ambiguity. See Zilwaukee Twp v Saginaw B C R Co, 213 Mich 61; 181 NW 37 (1921).
In the McCarty case the ambiguity was clearly latent and the defendant had made a point of it so the language was therefore apt. However, in the New Amsterdam case just considered, the rule was stated without reference to "latent” or "patent” ambiguity. Furthermore, it is not too easy to say whether the ambiguity was "latent” or "patent”. In any event, the same rule should apply to both. See the language applied in the next two cases discussed infra, In re Traub Estate and Roy Annett.
In re Traub Estate, 354 Mich 263; 92 NW2d 480 (1958), and Roy Annett, Inc v Killin, 365 Mich 389; 112 NW2d 497 (1961), both involved language^ very similar to the instant case. In In re Traub Estate, the question was whether a contract to bequeath "to Robert C. J. Traub all of the shares” meant only Robert was entitled to the stock in the event he predeceased the other contracting party or whether his heirs were also entitled to the stock. Obviously, it could be argued that the words to bequeath "to Robert C. J. Traub” were unambiguous, but this Court in a five to three decision admitted extrinsic evidence to show that the second party to the contract understood that not only Robert Traub but also his daughter were to be beneficiaries of the will under the contract. In Roy Annett, the language in issue was a limitation not to be "sold by the owner”, where in fact the owner sold through another broker. Again it could be argued the language was unambiguous, but this Court with no dissent approved the admission of a statement by the owner at the time of contracting that he had asked the broker whether the limitation precluded sale through another broker and was told it did not. This Court speaking through Justice Edwards so interpreted the phrase and repeated with approval (365 Mich 389, 395) the following language of Justice Talbot Smith in the majority opinion of In re Traub Estate (it is interesting to note Chief Justice Dethmers signed this opinion although he dissented in Traub presumably on the facts):
"By way of preface we should say that in event of ambiguity in an instrument we make use of all possible aids in construction, the parol evidence rule to the contrary notwithstanding. 3 Corbin, Contracts, § 579, p 250, states the principle with clarity:
" 'As long as the court is aware that there may be doubt and ambiguity and uncertainty in the meaning and application of agreed language, it will welcome testimony as to antecedent agreements, communications, and other factors that may help to decide the issue.’ ” 354 Mich 263, 280.
Pointing toward the real purpose of reference to extrinsic evidence, certain language in Keller v Paulos Land Co, 381 Mich 355; 161 NW2d 569 (1968), is most significant. The dispute in that case concerned the scope within which a "nonexclusive easement for purposes of ingress and egress” could be employed. The Court found that the words were "ambiguous” as to the proper uses of the easement where the land contract subject to easement was landlocked. The Court determined on the basis of extrinsic parol testimony that the intent of the parties was to include parking rights in the conveyance although semantically, there is no question that the terms ingress and egress would not in the usual case include parking.
The significant language in Keller was spoken by Chief Justice Dethmers for a unanimous Court as follows:
"In the light of this ambiguous term in the land contract, the trial court properly permitted oral testimony to determine the true intent of the parties.” (Emphasis added.) 381 Mich 355, 362.
The emphasis in Keller "to determine the true intent of the parties” certainly seems normal and in order and a proper rule to follow. That such language speaks this Court’s rule is indicated by similar and even stronger language in an earlier case, McIntosh v Groomes, 227 Mich 215; 198 NW 954 (1924). In McIntosh, the language in issue was "from the sale of said valves, the sum of one thousand dollars per annum, payable at the rate of ten cents for each and every valve sold” and the issue was whether there was an annual guaranty of $1,000 a year in the event no valves were sold. Since the Justices personally differed in their interpretation of the language itself, Justice Sharpe in writing for six of the eight members of the Court said:
"If ambiguous terms are used, the preliminary negotiations may be considered, not to vary or contradict the plain terms of the instrument, but to aid the court in determining the intent with which such words were used. ” (Emphasis added.) 227 Mich 215, 219-220.
This Court found a contemporary oral promise of a "guaranty of a thousand dollars a year” and so construed the above words.
Elsewhere in the McIntosh opinion, this Court stated the basic rule for all contracts, including those challenged under the doctrine of the parol evidence rule, namely:
"The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties. To this rule all others are subordinate.” (Emphasis added.) 227 Mich 215, 218.
From these cases we derive the following rules to decide this case:
1) Where ambiguity may exist in a contract, extrinsic evidence is admissible to prove the existence of ambiguity.
2) Where ambiguity may exist in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties.
3) Where ambiguity exists in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties as an aid in the construction of the contract.
C. RESTATEMENT OF THE LAW
Professor Corbin’s thought has already been recognized in this and prior Michigan cases, and its relevance to our law noted.
The American Law Institute, Restatement of the Law of Contracts, § 242 and particularly the comment should also be noted. The comment is set out in full because it squares so well with the rules we have decided upon from our own cases.
"Comment:
a. Where the parties by the language they have employed leave their meaning obscure and uncertain when applied to the subject-matter, then the expressions and general tenor of speech used in the previous negotiations, even if coming as they usually must from one or the other of the parties themselves, are admissible to show the conditions existing at the time when the writing was made. And even where the writing is not ambiguous on its face, the circumstances under which the parties contract may be looked at to establish an ambiguity, as well as to indicate the proper choice of possible meanings; and the common knowledge and the understanding of the parties themselves as shown by their previous negotiations is sometimes such a circumstance. There is, however, a limit to the application of the rule stated in the Section. Previous negotiations cannot give to an integrated agreement a meaning completely alien to anything its words can possibly express. In an unintegrated agreement there is no such absolute limitation, but the more unusual the meaning sought to be given unintegrated words, the more difficult will it be to establish such a meaning as the true one.”
The limit described in the comment is interesting though not factually applicable in our case. There is a similar rule in Michigan case law. See Flajole v Gallaher, 354 Mich 606; 93 NW2d 249 (1958).
IV —MAY AMBIGUITY EXIST HERE?
As most cases reaching this Court, this is not an easy one. Competent lawyers drafted an agreement in an important and expensive transaction. Yet four experienced judges disagreed on the meaning of a relatively simple phrase in that agreement, "owned by”.
The able trial judge said in his opinion:
"There are several ambiguities in that phrase; what is meant by 'owned’; when such ownership must exist; and, collaterally, what type of ownership or status of title was meant. Now, in determining the meaning of ambiguous phrases in written contracts of this sort, the Court must look to the intention of the parties and carry that intention into effect. In doing so, the Court may, and has at some length, look to extrinsic evidence and construe such intention in light of the apparent purpose of the parties in making the agreement.”
On. the other hand, three learned appellate judges said in their opinion:
"The words in the contract 'owned by’ have a clear and definite meaning, i.e., denoting an absolute and unqualified title. Black’s Law Dictionary (4th ed), p 1259; Palm Springs-LaQuinta Development Co v Palm Springs Land & Irrigation Co, 36 Cal App 2d 730; 98 P2d 530 (1940). Thus, the words 'owned by’ can only be interpreted as meaning present ownership. The words are not ambiguous so as to permit any implication that they mean property to be acquired in the future nor are they ambiguous so as to permit extrinsic parol evidence to so interpret them. Palm Springs-LaQuinta Develop ment Co v Palm Springs Land & Irrigation Co, supra. ” 43 Mich App 640, 645-646; 204 NW2d 749 (1972).
It is clear that whatever the legal problem, there is a problem of semantics. The able trial judge finds "owned by” ambiguous. The learned appellate judges find the words "owned by” "have a clear and definite meaning”. Both reach their conclusions from the words themselves and without reference to extrinsic evidence, although the trial judge resorted to extrinsic evidence to resolve the ambiguity.
As we undertake to determine whether there was such ambiguity in the contract to admit extrinsic evidence to aid in construing it, we are therefore met on the threshold by the fact that the able trial judge found "owned by” ambiguous but that the three appellate judges did not. It is interesting to note that Justice Sharpe in McIntosh, supra, observed that not all of his brethren agreed with his own interpretation of the contract there in question. He then said:
"Such difference of opinion, I think, is quite conclusive that the language used, taken as a whole, is ambiguous, that is, of doubtful and uncertain meaning.” 227 Mich 215, 219.
While a trial judge sits in a different position, his view of the matter is not without considerable significance in such a question.
In any event, we must analyze our case with the rules we have deduced from our case law. Our first rule was that where ambiguity may exist in a contract, extrinsic evidence is admissible to prove the existence of the ambiguity. McCarty, supra.
We agree with the able trial judge that the phrase "owned by” is susceptible of ambiguity. Most of us would say we "owned” our home even if, as the saying goes, we "owned” it with the bank.
The simple phrase "owned by” as the able trial judge suggested is subject to qualification as to time, type, status of title, etc. The wisdom of this belief is sustained by the actual facts. Contrary to the definition of the learned appellate judges, the ownership was actually neither "present” nor "absolute or unqualified”. Full payment on the land contract had not been made and the title was subject to an easement and dirt removal rights.
In short, there might well be an ambiguity in the term "owned by”.
Reference to prior Michigan cases shows that this Court has found phrases seeming at least equally unambiguous, nonetheless, sufficiently susceptible of ambiguity to admit extraneous evidence to establish ambiguity: "all orders”, McCarty, supra; "to Robert C. J. Traub”, In re Traub Estate, supra; "sold by owner”, Roy Annett, supra; "profits”, Brown v A F Bartlett & Co, 201 Mich 268; 167 NW 847 (1918); "Emma H. Foote, beneficiary,” Hall v Equitable Life Assurance Society of the United States, 295 Mich 404; 295 NW 204 (1940). In all of the cases except McCarty when extrinsic evidence was admitted ambiguity was actually found.
It is clear that ambiguity "may” exist in the phrase "owned by”.
V —DO PRIOR NEGOTIATIONS ESTABLISH AMBIGUITY?
It appears from the extrinsic evidence introduced in this case that the seller and buyer conducted their negotiations with almost cavalier informality. The seller and buyer never discussed the 28th Street property in terms of metes and bounds. Neither buyer nor his attorney walked the length or breadth of the property. Moreover, no title search was made on the property so that the buyer did not discover that the seller’s title was clouded by an easement and by provisions of the land contract until after the lease agreement was signed.
The testimony establishes that at the time of contracting the seller held title to the 28th Street property under a land contract which included a provision reserving to the land contractor vendors dirt removal rights, the exercise of which would cause a dropoff of from 10 to 16-1/2 feet between the two parcels. The seller conceded on cross-examination that he had never discussed the land contract dirt removal rights with the buyer or the 33-foot easement across the juncture of the 2 parcels because they were not significant factors in his mind. Financing for the buildings to be constructed on the 28th Street property was also not secured until months after the written agreement was signed, despite a clause in the contract requiring financing within 30 days.
The inference is strong, after examining the testimony, that one of the chief inducements to the execution of the written contract’s 28th Street property lease provisions was that a larger dealership facility could be built there. The buyer testified that he was aware that General Motors had approved the 28th Street property as a location for Goodwin’s new premises, and asserts that he relied on that and the seller’s representation that the property was approximately rectangular when he signed the written agreement. The builder hired by buyer to construct his new facilities at a different location after negotiations to lease the 28th Street property broke down, testified that it would be difficult to build a high-volume dealership of the buyer’s specifications, with showroom, service building, body shop, general office, customer parking, and space for 250-500 cars on the 2 offset parcels comprising the 28th Street property. General Motors’ regional representative also testified that it would have been difficult for the buyer, Coe, to establish his intended dealership on the bottlenecked, irregularly-shaped 28th Street property that the seller actually owned.
The parol evidence introduced by the buyer was subject to rebuttal by all relevant testimony as to the prior negotiations. The seller introduced parol evidence to establish that the parties were both experienced in business and represented by counsel, that considerable negotiation had preceded settling upon the contract, and that both parties knew on the date for performance of the contract (January 5, 1968) that seller did not own the disputed three-acre parcel at the western side of his 28th Street property.
But the testimony of seller’s president so indicated that he himself did not have in mind the exact size and shape of the property he owned on 28th Street at the time of contracting. Moreover, his recollection of the contractual negotiations was comparatively vague, and his testimony at trial was called into question by inconsistent statements in his deposition taken two years earlier that he was uncertain whether he had discussed the shape of the property with the buyer at all. Consequently, the seller did not make a persuasive case that the words of ownership were used in their narrowest, literal sense only.
The parol evidence admitted in sum establishes three significant points:
First, buyer had no intention of buying a property of the size and configuration of the two lots seller had under land contract, because it could not possibly support the size of automobile dealership contemplated.
Second, seller had represented that the property was of a size and configuration that would support such a dealership and buyer did not know otherwise until after the agreement was signed.
Third, the property in question was subject to an easement and to dirt removal rights. In addition, seller only had the property under land contract and had not secured construction financing as agreed when the contract was signed — all of which was unknown to buyer.
Points one and two clearly indicate that the intention of the buyer was to purchase a piece of property other than that of size and configuration seller had under contract. However, the seller based his lawsuit on theory the agreement in issue was to sell the property it had under contract. This certainly establishes an ambiguity that goes to the very heart of the contract.
VI —FAILURE OF SELLER TO ABIDE BY CONTRACT
The trial court, after considering the points discussed supra, brought out by the parol evidence admitted into testimony, inter alia, concluded in its findings of fact:
"The Court finds as a matter of fact that the Defendants have shown by a preponderance of the evidence that there was a meeting of minds between Mr. Goodwin of the Plaintiff Corporation and the individual Defendant on the configuration of the property to be used as a site for the proposed construction on 28th Street, which meeting of the minds encompassed a property boundary on the west which was straight and without ’the jog’ of which we have heard so much for the last few days. "(Emphasis added.)
Trial court findings of fact will not be set aside by appellate courts unless they are clearly erroneous. GCR 1963, 517.1. As our discussion in the preceeding section intimates, this trial court finding that there was indeed a "meeting of the minds” with regard to the property to be conveyed, was far from a clearly erroneous conclusion on the state of the record. It appears that both Goodwin and Coe intended to contract for the same property — property with a "straight” western boundary line.
What confuses this conclusion is the further commentary of the trial court alluding to the question of mistake or misrepresentation:
"The meetings [sic] oí minds occurred as a result of a mistake on the part of Mr. Goodwin. This mistake may be categorized as a misrepresentation; it may have been on purpose; it may have been sincere or it may have been simply the result of carelessness, indifference or inattention. I don’t think the Court really has to determine the reason for the mistake.”
As the parties have noted in their briefs to this Court, the question of misrepresentation was not raised as a counterclaim in the trial court pleadings, though appellant contends that the Court of Appeals should have sua sponte granted amendment of the pleadings to conform to the evidence. It is not necessary to consider this contention in light of our disposition of this cause.
Further, the possibility that Goodwin himself was unaware of the extent of his ownership of property on 28th Street through some form or other of inadvertence, is not a "mistake” raising the possibility of total rescission of the contract by this Court. Nor does appellee make such a claim. As Chief Justice (then Justice) T. M. Kavanagh noted in Windham v Morris, 370 Mich 188, 193; 121 NW2d 479 (1963):
"Generally, rescission of a contract will not lie except for mutual mistake or unilateral mistake induced by fraud.”
See also Trembert v Mott, 271 Mich 683, 692; 261 NW 109 (1935).
The trial court did not find mutual mistake— only "mistake on the part of Mr. Goodwin”. Nor was there any finding that Goodwin’s mistake was in any fashion induced by fraud on the part of Coe. Accordingly, we concur in the trial court conclusion that a binding contract existed between Goodwin and Coe and, again, that the common intent was to contract for the sale of property with a "straight” western boundary line.
All of the foregoing establishing the existence of a valid and legally binding contract for sale of land including the disputed three-acre parcel, the further findings of the trial court, namely that Goodwin failed to perform its end of the contract while Coe met his contractual obligations, support the ultimate trial court judgment of damages in favor of the buyer, Coe.
Accordingly, the trial court judgment is reinstated.
VII —ESTOPPEL ISSUE
The other issue raised in this case, whether or not the fact that the seller first introduced the parol evidence at trial estops him from objecting on appeal to the admission of parol testimony of prior negotiations, is of no consequence. Since there was an ambiguity in the contractual language, both the seller and the buyer had the right to introduce parol evidence to clarify its meaning.
VIII —CONCLUSIONS
The Court of Appeals is reversed. The trial court is affirmed.
Costs to defendants.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Levin, and M. S. Coleman, JJ., concurred with Williams, J.
J. W. Fitzgerald, J. did not sit in this case.
ORDER
Entered December 20,1974. — Reporter.
On order of the Court, an application for rehearing having been filed herein, this Court recognizes that it erred in not noticing that the stipulation of non-residency was "special”. Accordingly, the Court reaffirms its opinion and reversal of the Court of Appeals but vacates its affirmance of the trial court order. This cause is remanded to the Court of Appeals for further consideration in light of these facts and the Court’s opinion at 392 Mich 348 (1974). Costs to defendants-appellants for proceedings in this Court only.
Goodwin had purchased two adjoining parcels of land comprising the 28th Street property in December, 1965, on a land contract. The property was approved by General Motors area representative for construction of a larger dealership facility in Grand Rapids for Pontiac cars.
The easement and dirt removal problems were resolved by negotiations between the parties and the land contract vendors before the date selected by the trial court for performance of the contract, January 5,1968. | [
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M. J. Kelly, J.
The parties have this Court’s February 21, 1985, opinion in Case No. 72984, and its order on rehearing dated October 24, 1985. The facts need not be repeated.
Because of the order on rehearing the doctrine of law of the case is inappropriate and inapplicable on these facts.
We hold that timely rejection of the mediation award is not complete upon mailing.
On review, however, we have a definite and firm conviction that the trial court erred in denying plaintiffs’ request to have their rejection notice received by the mediation tribunal as timely filed and we therefore reverse.
Two witnesses testified that the rejection was indeed mailed timely, in fact eleven days before the deadline. There was testimony regarding the percentage of delayed mail delivery by the United States Post Office in the area serviced. The trial court concluded:
The item that would have put this entire problem to rest once and for all is a [sic] fact the letter envelope which was used by Mr. Stockler’s office to mail the rejection, which would have shown the postmark of it having been placed in the U. S. Mails, just isn’t available, and no one is at fault for this; that is, for its unavailability.
That unavailability was not the fault of the plaintiffs. The plaintiffs’ attorney introduced his copies of the correspondence and his secretary testified as to the date of the mailing. The mediation tribunal routinely discarded envelopes.
Unless the witnesses, Mr. Lawrence Stockier, a practicing attorney, and his secretary of eleven years, Miss Gail Musialowski, conspired to commit perjury and a fraud upon the court, there was unrebutted testimony that the rejection was timely mailed. If it was a delayed delivery on the part of the United States Post Office, the rejection should have been deemed timely and the motion granted.
Reversed.
C. W. Simon, J., concurred. | [
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Per Curiam.
On August 17, 1983, plaintiffs filed a complaint against defendants Hastings Mutual Insurance Company and Home Insurance Company seeking to recover damages from each under their homeowner’s policies for the collapse of plaintiffs’ home. Defendants filed separate motions for accelerated judgment pursuant to GCR 1963, 116.1(5), now MCR 2.116(C)(7), on the basis that plaintiffs’ claim was barred by the applicable period of limitation. The trial court agreed and granted defendants’ motions. Plaintiffs appeal as of right. We affirm.
Home had contracted with plaintiffs to provide homeowner’s insurance covering plaintiffs’ home from October 24, 1978, to October 24, 1979. Upon expiration of that policy, plaintiffs insured their home with Hastings. In early 1979, plaintiffs noticed a hairline crack in their living room fireplace. Some time between August, 1979, and October, 1979, plaintiffs noticed a slight depression in their living room floor. In November, 1979, plaintiffs discovered a slight drop-off in the floor in front of the fireplace. Around this same time plaintiffs also discovered cracks along the ceilings inside the house. In the spring or summer of 1981, Mrs. Elsey consulted John Lawrence, an attorney with whom she worked, stating that her home was collapsing and seeking advice as to plaintiffs’ legal recourse. Lawrence gave plaintiffs the name of another attorney to consider the possibility of a lawsuit.
Meanwhile, plaintiffs consulted with Pearl Troxel, the owner of a construction company, to evaluate the condition of their home. Troxel informed plaintiffs that their house was sinking, but he was unable to pinpoint the cause, i.e., whether it was due to settling or some other factor. Troxel advised plaintiffs to have the house remeasured the following year. Troxel came back to remeasure in the spring of 1982.
In June, 1982, plaintiffs finally consulted the attorney to whom they had been referred. In December, 1982, upon the attorney’s advice, plaintiffs sent notice of the damage to their home to both Home and Hastings. The claims were denied by each in January and March, 1983, respectively.
On the attorney’s advice, plaintiffs then hired an engineer to evaluate their home. On June 28, 1983, the engineer submitted a report to plaintiffs which indicated that their house was collapsing. Thereafter, plaintiffs filed this action in circuit court seeking to collect for the damage to their home. Both defendants’ motions for accelerated judgment were granted on the basis that the action was not commenced within the applicable period of limitation as set forth in the terms of the policy.
MCL 500.2832; MSA 24.12832 sets forth the statutorily required standard fire insurance policy. The limitation period at issue herein is identical to the statute at lines 157 to 161:
No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.
This period of limitation begins to run from the date of the loss. In re Certified Question, Ford Motor Co v Lumbermen’s Mutual Casualty Co, 413 Mich 22, 38; 319 NW2d 320 (1982). Plaintiffs contend, however, that the inception of their loss and, hence, the accrual of their cause of action, occurred on June 28, 1983, when they received the report from the engineer which concluded that the house was collapsing and not merely settling. Plaintiffs contend that even though they knew the damage to their home had occurred, e.g., cracks in the fireplace and ceiling and a dip in the floor, they were not required to bring suit until they had knowledge of the cause of the damage, i.e., collapse rather than settlement. Hence plaintiffs wish us to interpret the phrase "inception of the loss” as being the time at which they had knowledge of the cause of the loss rather than the date of the loss. We decline to do so.
Without getting into an interpretation of "inception of the loss” we find plaintiffs’ argument to be flawed. Even taking plaintiffs’ contention as the law, we nevertheless find that the "inception of the loss,” i.e., (in plaintiffs’ terms) knowledge of the cause of the loss, could have taken place no later than one year from the time Pearl Troxel evaluated plaintiffs’ house. At the time of Troxel’s first evaluation he told plaintiffs to have the house remeasured in one year to determine the cause of the sinking. Testimony indicates that Troxel came back one year later and that, in his opinion, the weight of the fireplace was pulling the house down. Even without Troxel’s evaluation, plaintiffs nevertheless had a duty, after being informed that the house was sinking, to have the house remeasured in 1982. At this time they would have had knowledge that the house was collapsing.
Moreover, it appears that plaintiffs knew or reasonably should have known of the damage to their home as early as the summer of 1981 when Mrs. Elsey consulted with John Lawrence. At this time, Mrs. Elsey indicated that her house was collapsing. We are of the opinion that plaintiffs should have immediately consulted the builder and an engineer to ascertain the cause of the damage to their home. It was at this time that plaintiffs should have consulted an attorney to ascertain their legal rights. Any other conclusion would prejudice the insurers.
Plaintiffs appear to be advocating the "discovery rule,” which states that the statute of limitations does not begin to run until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, that he has a possible cause of action. See Filcek v Utica Building Co, 131 Mich App 396, 399; 345 NW2d 707 (1984); Thomas v Process Equipment Corp, 154 Mich App 78; 397 NW2d 224 (1986). Plaintiffs’ argument fails since, through the exercise of reasonable diligence, they should have discovered their loss. Accordingly, accelerated judgment in favor of defendants was appropriate.
Affirmed. | [
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Per Curiam.
Defendant was convicted by jury of first-degree felony murder, MCL 750.316; MSA 28.548, armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227(b); MSA 28.424(2). Defendant was sentenced to life in prison for the murder conviction and to a consecutive two-year term on the felony-firearm charge. The armed robbery conviction was vacated by the trial court on double jeopardy grounds. Defendant appeals as of right.
The first issue we address is defendant’s argument that the trial court erred in denying his motions for directed verdict and for a new trial. Defendant argues that the evidence was insufficient to sustain the jury’s verdict of felony murder and that the verdict was against the great weight of the evidence.
When ruling on a motion for a directed verdict of acquittal, the trial court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt. People v Duenaz, 148 Mich App 60, 64; 384 NW2d 79 (1985); People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), cert den 449 US 885 (1980).
Defendant contends that there was no evidence apart from a statement ("We only got $5.00.”) attributed to him which would support a finding that the murder occurred during the commission of a felony, specifically an armed robbery. In Michigan, all elements of an offense must be established independent of a confession. People v Allen, 390 Mich 383; 212 NW2d 21 (1973), adopting the dissenting opinion of then-Judge Levin at 39 Mich App 483, 494-506; 197 NW2d 874 (1972).
Our review indicates that ample circumstantial evidence apart from the admission was introduced to indicate that the murder occurred during an armed robbery. The victim, Nancy Faber, left her home in the early evening hours of November 22, 1983, to run some errands and to do some grocery shopping. She was carrying a purse. Nancy Faber bought groceries at a nearby Kroger store and paid for them with a check. The cash register receipt indicated the purchase was made at 7:56 p.m. At 8:11 p.m., a passing motorist noticed the victim’s car parked on the side of a road a short distance from the Kroger store with the victim slumped over the wheel. She had been shot once in the head at close range. No purse, checkbook, or identification was found in the car or in the victim’s coat. This evidence amply justified the conclusion that the victim had been shot and robbed during the brief interval between the time she left the store and the time she was discovered by a passing motorist. This is not a situation where the felony element of the felony murder conviction was established solely by a statement made by the defendant.
More troublesome is defendant’s assertion that there was insufficient evidence from which a rational jury could' conclude that he acted with a level of intent necessary to sustain a murder conviction. In People v Aaron, 409 Mich 672, 714; 299 NW2d 302 (1980), our Supreme Court held that malice aforethought, the element essential to distinguish murder from other forms of homicide, could be proven by evidence of various levels of intent: an intent to kill, an intent to do serious bodily injury, or wanton and wilful disregard of the fact thát the natural tendency of one’s behavior is to cause death or great bodily harm.
In People v Kelly, 423 Mich 261, 278; 378 NW2d 365 (1985), the Supreme Court held that when a defendant is tried on a theory of aiding and abetting a felony murder, as defendant was here, it must be shown that he acted with the same intent as would be necessary to convict him of the crime as the principal. The aider and abettor’s state of mind may be inferred from a consideration of all the facts and circumstances, such as the kind of weapon used, the nature of the wounds inflicted, the circumstances surrounding the killing, or the acts, conduct and language of the accused or any other circumstantial evidence. 423 Mich 275.
In the instant case, there was evidence that defendant instructed Machelle Pearson, the code-fendant, to ask the first unaccompanied woman to come out of the Kroger store for a ride. Defendant supplied Pearson with a loaded .38 caliber gun, which she was to use to take the woman’s purse once they had driven away from the store. Defendant followed in his car. Once the victim’s car came to a stop, defendant pulled up behind and he and Pearson made their escape. We conclude that defendant acted with a sufficient criminal intent to sustain his conviction for murder. His actions in planning the robbery, supplying the loaded weapon, and providing a means of escape indicate that the criminal enterprise was cooperative in nature. Kelly, supra, p 280. More importantly, his actions may be characterized as a wanton or wilful disregard of the likelihood that the natural tendency of his behavior was to cause death or serious bodily injury. The very essence of armed robbery is the procurement of another’s property through threat of death or bodily injury. The jury could infer that, by creating the inherently dangerous situation, defendant was aware that there was a likelihood Pearson would harm the victim if she resisted the robbery attempt.
We also conclude that the trial court acted within the limits of its discretion in finding the verdict was not against the great weight of the evidence.
As to defendant’s argument that the instructions were misleading and permitted the jury to convict on the murder charge on less than sufficient evidence of personal malice, we disagree. The trial court instructed the jury that in order to convict defendant of felony murder, it must find:
[FJourthly, that this crime which occurred, first degree felony murder, was fairly within the criminal plan and that the defendant might have expected this to happen in the course of committing the armed robbery. That is, both Machelle Pearson and this defendant, Ricardo Hart, might have expected this to occur in the course of committing the armed robbery.
Other instructions advised the jury that both Pearson and defendant had to have specific intent to commit the crime and that the malice element could be established by a finding of an intent to kill, an intent to inflict serious bodily harm, or by wanton and wilful disregard, if the natural ten dency of the conduct is to cause death or serious injury. Thus, the instructions as a whole were adequate and properly informed the jury.
Next, defendant argues that during closing argument the prosecutor impermissibly vouched for the credibility of two witnesses and indicated his personal belief in defendant’s guilt. In rebuttal argument, the prosecutor stated:
I’ll vouch for the credibility because Tony Frazier and Mary Gordon, however reluctantly, told you the truth. It is as simple as that, however much defense or anybody else may dislike them. Why give immunity if he wasn’t involved? Mackie [the prosecutor] says he was never a suspect. I never said that. The police made it clear in their testimony Tony Frazier was a suspect because Mary—excuse me—Machelle Pearson made him one. They checked it out. They didn’t just take her word and charge him. They checked all of this out. They took a long time to arrest Ricardo Hart. Why is that? Because they checked out everything and made absolutely one hundred percent sure with no room for doubt.
This argument was in rebuttal to defense counsel’s argument that the length of time the police waited to arrest defendant was suspicious and to the following statement:
I don’t think with good credible evidence [the prosecutor] has even put my client at the scene. He has put him there through the mouths of two people who have been highly motivated. Even he himself doe& not wish to vouch for them. We are not talking about pillars of the community.
After the prosecutor’s rebuttal argument was concluded, defense counsel objected to the prosecutor’s statement, quoted above, and the trial court gave the following curative instruction:
Before I get into the regular instructions, I want to give you a special instruction. I am going to ask you if anybody on the jury feels that they can’t follow these instructions: in the heat of argument, sometimes attorneys become somewhat impassioned and overstep the ground rules for arguments by expressing their own opinion as to the truthfulness of certain witnesses or their own opinion as to the guilt or innocence of the defendant or their own opinion as to the manner in which the opposite side conducts its case. Now, these are forbidden by the ground rules but sometimes being human in the heat of combat it is not too uncommon for that to happen. Now, all of these are improper and I am going to instruct the jury to strictly disregard anything said by either attorney in their arguments to the jury that purported to express their own opinion, that is, attorney’s own opinion as to the truthfulness of certain witnesses or of the guilt or innocence of the defendant or of the manner in which the opposite side conducted its case. Counsel can’t vouch for those things or express their own opinion.
Now, is there anybody on the jury that feels that they can’t follow that instruction and disregard those things which have been purportedly said that were over the boundary? Anybody that can’t follow that? If so, please raise your hands.
No hands raised. Let me ask you affirmatively can everybody on the jury follow that instruction and disregard those things said by counsel? If so, please raise your hands. We have all 14 hands raised. Thank you very much.
While the prosecutorial comments were improper, they were induced by and responsive to arguments made by defense counsel. Also, a curative instruction was given. Under these circumstances reversal is not required. People v Duncan, 402 Mich 1, 16-17; 260 NW2d 58 (1977); People v Pomranky, 62 Mich App 304, 310-311; 233 NW2d 263 (1975), lv den 397 Mich 823 (1976).
Defendant also argues that error occurred because, on the redirect examination of Tony Frazier, a prosecution witness, the prosecutor elicited the fact that defendant was on general assistance at the time the crime was committed.
No objection was raised to the testimony during trial. Thus, appellate review is foreclosed absent manifest injustice. People v Ng, 156 Mich App 779, 784; 402 NW2d 500 (1986). The testimony that defendant was receiving welfare benefits was introduced to counter evidence which defense counsel had elicited on cross-examination of Frazier that defendant was employed. This is not a case where evidence that defendant received welfare benefits was introduced in an attempt to prove that the defendant, for that reason, was more likely to have committed the crime. No manifest injustice occurred.
Next, defendant argues that he was denied a fair trial because the circuit court twice denied motions for a change of venue. Defendant submitted evidence to the trial court of extensive pretrial publicity.
In People v Prast (On Rehearing), 114 Mich App 469, 477; 319 NW2d 627 (1982), this Court stated:
The existence of pretrial publicity does not by itself require a change of venue. Murphy v Florida, 421 US 794; 95 S Ct 2031; 44 L Ed 2d 589 (1975). If jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court, a change of venue is not necessary. Irvin v Dowd, 366 US 717, 722-723; 81 S Ct 1639; 6 L Ed 2d 751 (1961); [People v] Swift [172 Mich 473, 481-482; 138 NW 662 (1912)]; People v Dixon, 84 Mich App 675, 679; 270 NW2d 488 (1978). For a change of venue to be granted, the defendant must demonstrate that there is a pattern of strong community feeling or bitter preju dice against him, and the publicity must be so extensive and inflammatory that jurors could not remain impartial when exposed to it. [People v] Clay [95 Mich App 152, 160; 289 NW2d 888 (1980)]; [People v] Collins [43 Mich App 259, 262; 204 NW2d 290 (1972)].
The denial of a motion for change of venue is within the trial court’s discretion and its exercise of that discretion will not be reversed unless there has been an abuse of discretion. People v Jancar, 140 Mich App 222, 229; 363 NW2d 455 (1985). A trial court may in its discretion elect to defer determination on a request for a change of venue until jury selection has been attempted in the original county. People v Collins, 43 Mich App 259, 262; 204 NW2d 290 (1972), lv den 391 Mich 798 (1974), cert den 419 US 866; 95 S Ct 121; 42 L Ed 2d 103 (1974).
While there was widespread publicity in the instant case, it appears that through careful and considered effort an impartial jury was selected. The jury voir dire lasted seven days. The veniremen were screened and instructed as a group by Judge Campbell and then questioned individually by the judge and each attorney out of the presence of the rest of the venire. Of the twelve jurors who decided the case, three had not previously heard anything about the case. Another juror had been out of town when the murder occurred and had seen only one article about the case. That juror and the remaining eight stated that they were able to and would rely only on the evidence presented at trial in rendering their verdict. The trial court did not abuse its discretion by denying defendant’s motion for change of venue. For an analogous case which reached a similar result, see People v Furman, 158 Mich App 302, 321-322; 404 NW2d 246 (1987).
Defendant’s final argument is that he was denied equal protection of the law because the prosecutor systematically used his peremptory challenges to strike black veniremen from the jury panel. The United States Supreme Court has recently articulated a new standard to adjudge such claims. Batson v Kentucky, 476 US —; 106 S Ct 1712; 90 L Ed 2d 69 (1986). The Supreme Court has also held that the Batson standard is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final at the time Batson was decided. Griffith v Kentucky, 479 US —; 107 S Ct 708; 93 L Ed 2d 649 (1987).
Batson requires that, if defendant establishes a prima facie case of purposeful discrimination, the prosecutor must come forward with a neutral explanation for his actions. In the instant case, the defendant asserts on appeal that a prima facie case was established. The prosecutor on appeal offers reasons for each instance in which he peremptorily excluded a black venireman and asserts that the proffered reasons are neutral. However, such determinations are better decided by the trial court in the first instance. Accordingly, the case is remanded with the instruction the trial court apply the Batson standard. We retain jurisdiction.
Remanded for further proceedings consistent with this opinion. | [
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Per Curiam.
On December 3, 1982, Michigan Gas Utilities Company (mgu) filed an application with the Public Service Commission requesting authority to incorporate a gas cost recovery clause into its rate schedules. This became psc case No. U-7483. On the same day mgu also filed an application requesting the psc to conduct a gas supply and cost review in order to approve mgu’s gas cost recovery plan, evaluate mgu’s five-year forecast and establish gas cost recovery factors. This became psc case No. U-7484.
Subsequently, following hearings, the psc approved incorporation of a gas cost recovery clause into the rate schedules of mgu (U-7483), and approved gas cost recovery factors for mgu for the months of March, 1983, through December, 1983, (U-7484). The Attorney General and the Residential Ratepayer Consortium separately appealed these orders to the Ingham Circuit Court. The' cases were consolidated in the circuit court and that court affirmed the decision of the psc on December 18, 1985. The Attorney General appeals as of right. We affirm.
i
The Attorney General’s first claim in this appeal is that the Legislature unconstitutionally delegated its authority by allowing the psc to incorporate a gas cost recovery clause in the rates or rate schedules of a utility. MCL 460.6h(1)(b); MSA 22.13(6h)(1)(b) defines a gas cost recovery clause as "an adjustment clause in the rates or rate schedule of a gas utility which permits the monthly adjustment of rates for gas in order to allow the utility to recover the booked costs of gas sold by the utility if incurred under reasonable and prudent policies and practices.”
MCL 460.6h(2); MSA 22.13(6h)(2) provides that the psc "may incorporate a gas cost recovery clause in the rates or rate schedule of a gas utility, but is not required to do so.”
The Attorney General contends that this statute is void for vagueness since it does not provide any general standard to guide the commission in the exercise of its discretion as to when a gas cost recovery application should be approved, thereby delegating legislative authority to the psc.
In order to determine whether adequate standards have been adopted in the delegation of statutory power, the following guidelines have been adopted by our Supreme Court. First, the act in question must be read as a whole; the provision in question must be construed with reference to the entire act. Next, the standard should be as reasonably precise as the subject matter requires or permits. Third, if possible, the statute must be construed as being valid, that is, it must be construed as conferring administrative, not legislative, power and as giving discretionary, not arbitrary, authority. Last, the statute must satisfy due process requirements. See People v Turmon, 417 Mich 638, 644-645; 340 NW2d 620 (1983); Dep’t of Natural Resources v Seaman, 396 Mich 299; 240 NW2d 206 (1976).
Reading the gas cost recovery statute as a whole, it meets the requirement that it provide standards as reasonably precise as the subject matter requires or permits. The statute provides that a gas cost recovery clause cannot be approved to recover booked costs of gas sold by the utility if those costs are not incurred under policies and practices which are both reasonable and prudent. The statute also contains an extensive scheme for review of gas costs and for participation by interested parties in the application approval process. These necessary standards, required for approval of a gas cost recovery clause, provide sufficient guidelines for the commission, in the exercise of its discretion, to approve or disapprove an application. The provisions in the statute that provide for participation by interested parties at the hearings before the commission satisfy due process requirements.
For these reasons the statute is capable of being construed as valid. There was no improper delegation of power to the psc from the Legislature with respect to the establishment and implementation of the gas cost recovery clause.
ii
The Attorney General’s next claim is that § 9 of the gas cost recovery statute, MCL 460.6h; MSA 22.13(6h), was implicitly repealed by Proposal h when that proposal was adopted by referendum in the November, 1982, general election. MCL 460.6h(9); MSA 22.13(6h)(9) provides in part:
If the commission has not made a final or temporary order within 3 months of the submission of a complete gas cost recovery plan, or by the beginning of the period covered in the plan, whichever comes later, or if a temporary order has expired without being extended or replaced, then pending an order which determines the gas cost recovery factors, a gas utility may each month adjust its rates to incorporate all or a part of the gas cost recovery factors requested in its plan. Any amounts collected under the gas cost recovery factors before the commission makes its final order shall be subject to prompt refund with interest to the extent that the total amounts collected exceed the total amounts determined in the commission’s final order to be reasonable and prudent for the same period of time.
Proposal H, now MCL 460.6a; MSA 22.13(6a), provides in part:
(1) When any finding or order is sought by any gas, telephone or electric utility to increase its rates and charges or to alter, change or amend any rate or rate schedules, the effect of which will be to increase the cost of services to its customers, notice shall be given within the service area to be affected. When such utility shall have placed in evidence facts relied upon to support its petition or application to so increase its rates and charges, or to so alter, change or amend any rate or rate schedules, the commission, pending the submission of all proofs by any interested parties, may in its discretion and upon written motion by such utility make a finding and enter an order granting partial and immediate relief, after first having given notice to the interested parties within the service area to be affected in the manner ordered by the commission, and after having afforded to such interested parties reasonable opportunity for a full and complete hearing: Provided, That no such finding or order shall be authorized or approved ex parte, nor until the commission’s technical staff has made an investigation and report: And provided further, That any alteration or amendment in rates or rate schedules applied for by any public utility which will result in no increase in the cost of service to its customers may be authorized and approved without any notice or hearing. There shall be no increase in rates based upon changes in cost of fuel or purchased gas unless notice has been given within the service area to be affected, and there has been an opportunity for a full and complete hearing on the cost of fuel or purchased gas. The rates charged by any utility pursuant to an automatic fuel or purchased gas adjustment clause on the effective date of the amendatory act that added this sentence shall not be altered, changed, or amended unless notice has been given within the service area to be affected, and there has been an opportunity for a full and complete hearing on the cost of the fuel or purchased gas.
The Attorney General argues that since Proposal h prohibits automatic adjustment clauses and permits adjustment clauses only after notice and opportunity for a full and complete hearing, § (9) of the previously enacted gas cost recovery statute was implicitly repealed since it conflicts with Proposal h by providing for an automatic adjustment clause without an opportunity for a full and complete hearing if the psc fails to make á final or temporary order within three months of submission of a gas cost recovery plan.
The question whether a statute is repealed by a subsequent statute relating to the same subject matter involves a determination of legislative intent, and where legislative intent is clearly expressed it should be given utmost respect; the presumption is against repeal by implication. People v Waterman, 137 Mich App 429, 432-433; 358 NW2d 602 (1984). If possible the former and subsequent statutes must be construed together and reconciled with each being given force and effect. Id. at 433.
There is no express provision in Proposal h providing for repeal of any provision in the gas cost recovery statute. Although Proposal h was passed by referendum, it, along with the gas cost recovery statute, was enacted in 1982 by the Legislature; therefore, it is reasonable to assume that the Legislature intended that both statutes should be given effect. After a reading of Proposal h it is apparent that what was sought to be accomplished was to put an end to automatic adjustment clauses to the extent that they operated without an opportunity for a full and complete hearing. Section 9 of the gas cost recovery statute does not conflict with the requirements of Proposal h since it provides an opportunity for a full and complete hearing.
In essence, all Proposal h requires is an opportunity for a full and complete hearing and § 9 of the gas cost recovery statute provides not only an opportunity for a full and complete hearing, but ultimately requires such a hearing and, depending upon the findings following the hearing, a refund could be in order. There is no conflict between Proposal h and § 9 of the gas cost recovery act.
hi
The Attorney General’s next argument is that the psc exceeded the scope of its statutory authority when it ruled that some customer classes could be exempted from paying a gas cost recovery factor. The Attorney General claims that the gas cost recovery statute requires all customers to bear the burden of adjustments via the gas cost recovery factors and any creation of an exemption to this burden by the psc was in excess of its statutory authority.
That part of the gas cost recovery clause approved by the psc for mgu and challenged by the Attorney General provides:
All rates for gas service, unless otherwise provided in the applicable rate schedule, shall include a Gas Cost Recovery Factor to allow the Company to recover the booked costs of gas sold by the Company if incurred under reasonable and prudent policies and practices.
The key phrase is, "unless otherwise provided in the applicable rate schedule.”
The psc created an exemption from the gas cost recovery factor for designated dual fuel customers of mgu based on the phrase quoted above. The Attorney General contends that the psc was without statutory authority to do this. The Attorney General’s claim amounts to a challenge directed at rate structure or design.
All rates, fares, charges, classifications and joint rates, regulations, practices, and services prescribed by the psc are deemed, prima facie, to be lawful and reasonable. Attorney General v Public Service Comm #1, 133 Mich App 719, 725; 349 NW2d 539 (1984), lv den 422 Mich 910 (1985); Michigan Consolidated Gas Co v Public Service Comm, 389 Mich 624; 209 NW2d 210 (1973). To attack an order of the psc one must prove by clear and satisfactory evidence that the order complained of is unlawful or unreasonable. MCL 462.26(e); MSA 22.45(e).
The Attorney General claims the exemption given to certain classes of customers to the gas cost recovery clause was unlawful because the psc exceeded its statutory authority under § 6h of the gas cost recovery statute. The Attorney General’s claim is without merit. The language of § 6h(6) states that the psc, in determining to implement a gas cost recovery clause, shall consider: "... the volume, cost, and reliability of the major alternative gas supplies available to the utility; the cost of alternative fuels available to some or all the utility’s customers . . . .”
By requiring the psc to consider the cost of alternative fuels available to some or all the utility’s customers when ruling on an application for a gas cost recovery clause, the Legislature implicitly granted the psc the discretionary power to institute a gas cost recovery clause for a utility and to allocate the applicability of the clause between customer classes in its discretion.
The allowance for an exemption to the gas cost recovery clause was also reasonable since applica tion of the clause to all classes of customers could result in inducing large industrial customers with dual fuel capability to switch from gas power to an alternative fuel to the detriment of all other classes.
IV
The Attorney General’s final claim is that the circuit court erred in ruling that the terms "reasonable” and "prudent,” as used in MCL 460.6h; MSA 22.13(6h), have the same meaning. The Residential Ratepayer Consortium had argued before the psc, and again before the circuit court, that the term "prudent,” as used in the statute, is the standard for evaluating the process followed in making a decision at the time the decision is made, and that the term "reasonable,” as used in the statute, is the standard for evaluating the present consequences of that decision. The psc held:
[T]he common usage of those words does not make that past and present tense distinction, and it is not necessarily true that the Legislature intended the words to have distinct meanings. The two words may have been intended as a phrase. In any event, it is not proper to interpret these words as rrc proposes without a clearer indication that the Legislature so intended.
The Attorney General argues that a utility’s costs must be prudent, i.e., the result of good judgment and planning, and they must be reasonable in light of current circumstances. Based on this theory the Attorney General concludes that the terms reasonable and prudent require that prices be no higher than current market levels, since gas costs in excess of current market price are inherently unreasonable.
The definition of these words is important since a utility is only allowed to recover, under the gas cost recovery clause, booked costs of gas sold by the utility and incurred under reasonable and prudent policies and practices. The evidence presented before the psc by mgu in its request for a gas cost recovery clause was that mgu had entered into long term contracts at a time when liquefied natural gas was in short supply, believing it to be desirable to have an assured supply despite higher costs. Subsequently, the market for liquefied natural gas changed drastically. This resulted in mgu having booked gas costs in excesss of market price at the time of its application. The psc determined that mgu’s decision to enter into these long term contracts was reasonable and prudent.
The first rule of statutory construction is to give effect to the legislative intent. Karl v Bryant Air Conditioning Co, 416 Mich 558, 567; 331 NW2d 456 (1982). When interpreting a statute, words should be given their ordinary meanings. Goethal v Kent Co Supervisors, 361 Mich 104; 104 NW2d 794 (1960); Bailey v DAIIE, 143 Mich App 223; 371 NW2d 917 (1985), lv den, 424 Mich 867 (1986).
The statute here provides, in the clause where a gas cost recovery clause is defined, for "the booked costs of gas sold by the utility if incurred under reasonable and prudent policies and practices.” Since the word "incurred” is used in the past tense, it is logical to assume that the Legislature intended that the determination whether the actions of a utility were reasonable and prudent should be made in light of existing conditions at the time the decision to purchase the gas was made.
The interpretation of "reasonable and prudent” by the psc, that these two words do not make past and present tense distinctions and can be read together as a phrase, was not contrary to the ordinary and common meaning of the words, and gave effect to the legislative intent.
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Sawyer, J.
On December 12, 1983, the trial court entered a judgment of divorce granting custody of the parties’ two minor children, Stacy and Jeffrey, to plaintiff and requiring defendant to pay $107 per week in child support until Stacy reached eighteen years of age, at which time the child support would be reduced to $64 per week until Jeffrey reached eighteen years of age. The parties also had a third child, Darleen, who had reached the age of majority by the time of the divorce. On July 23, 1984, plaintiff filed a petition for a modification of the judgment of divorce requesting that custody of Stacy be transferred to defendant and that custody of Jeffrey remain with plaintiff, but that plaintiff be allowed to remove Jeffrey from Michigan to Indiana, where plaintiff had secured employment. The trial court subsequently issued an order awarding defendant custody of Stacy, allowing plaintiff to continue custody of Jeffrey and to remove his residence to Indiana. Defendant’s child support obligation was modified to $19.50 per week.
On June 14, 1985, defendant filed a petition for modification requesting that legal custody of Jeffrey be transferred to defendant and that plaintiff be obligated to pay child support for both Stacy and Jeffrey. Following a report of the friend of the court and a hearing, the trial court entered an order granting defendant physical custody of Jeffrey and requiring plaintiff to pay child support in the amount of $59 per week. Although plaintiff had remarried and voluntarily quit her employment, the trial court based its award of child support on the salary plaintiff had received prior to leaving her employment. Plaintiff now appeals and we affirm.
Plaintiff first argues that defendant failed to meet his burden of showing a change in circumstances to justify the awarding of child support. We disagree. Plaintiff is correct that there must be a change in circumstances to justify a modification of the child support award. MCL 552.17; MSA 25.97. However, the fact that there was a change of physical custody of the children from plaintiff to defendant constitutes a change in circumstances.
Plaintiff’s next argument is that the trial court abused its discretion in basing the child support award on plaintiff’s ability to earn, rather than her actual income. Again, we disagree. Plaintiff calls upon us to once again revisit an area which has troubled this Court in the past, namely the effect of a noncustodial parent’s voluntary reduction in income on that parent’s child support obligation. Although we have closely reviewed decisions of both this Court and the Supreme Court covering almost two decades, we believe that our analysis can begin with the particularly astute observation of the trial court in the case at bar that "however laudable her reasons now for not working, attempting to make stronger the marriage relationship she recently has entered into with Mr. Marks, that there regardless is a need for support to be paid to Mr. Rohloff.” In the case at bar, plaintiff relies upon Dunn v Dunn, 105 Mich App 793; 307 NW2d 424 (1981). However, before considering the Dunn decision, we believe it helpful to look back further in this Court’s decisions and begin with consideration of the case of Travis v Travis, 19 Mich App 128; 172 NW2d 491 (1969), wherein this Court held that the duty of child support is not limited to income, but that the court must also take into consideration the ability to work and earn money. In Travis, the Court concluded that the trial court properly considered the appellant’s assets and income potential, noting that the appellant "has been content with a part-time job although he advances no reason why he cannot work a forty-hour week.” Id. at 130.
Similarly, in Heilman v Heilman, 95 Mich App 728; 291 NW2d 183 (1980), this Court, citing Travis, stated that the trial court could properly take into consideration the parent’s ability to work and earn money and make an appropriate award. The Heilman Court concluded that, while the trial court could consider earning potential and place a lien against a possible tort recovery to pay a child support obligation, no child support obligation should have been imposed upon the defendant during the period when he had no earning capacity and no assets, namely time that he spent incarcerated in prison. Heilman, supra at 733.
A similar question was presented to both this Court and the Supreme Court in a series of cases which came by way of a review of a contempt-of-court citation for failure to pay a court-imposed child support obligation. In Sword v Sword, 399 Mich 367; 249 NW2d 88 (1976), the Court held that, before citing a party for contempt for failure to obey a support order, the trial court must inquire into the party’s ability to pay support and comply with the support order. While the Court was remorseful in its inability to provide precise guidelines for trial courts to employ in such sitúa- tions, it did offer a number of factors which could be considered prior to making a finding of contempt. Id. at 378. Among those factors given by the Court were the party’s employment history, "including reasons for any termination of employment,” "[w]ork opportunities available,” "[diligence employed in trying to find work,” and "[a]vailability for work.” Id. at 378-379. While the Sword Court did not directly face the question of the effect of voluntary unemployment on the child support obligation, the Court’s criteria clearly indicate that a party’s efforts, or lack of efforts, to become gainfully employed are appropriate criteria to consider in determining if a party has the ability to meet a support obligation.
Also in the line of cases arising from contempt orders is Cullimore v Laureto, 66 Mich App 463; 239 NW2d 409 (1976). In Cullimore, the trial court cited the defendant for contempt after concluding that he had failed to exercise the diligence which would have provided him with the ability to satisfy his support arrearage obligation. In affirming the trial court, this Court noted that the record supported the conclusion that the defendant "comfortably accepts his unemployed status.” Id. at 466. After noting that defendant had a self-proclaimed ability as a mechanic and a seven-year record of nonpayment, this Court concluded that it was "difficult to dispute the judge’s finding that he was able but unwilling to assume his support obligations.” Id. at 466.
In Causley v LaFreniere, 78 Mich App 250; 259 NW2d 445 (1977), this Court affirmed a lower court order which, while not citing the defendant for contempt of court because of his unemployed status, ordered defendant to pay $5 per month in child support during his period of unemployment and, after regaining employment, to resume pay ments of $10 per week child support and an additional $5 per week to be applied to the accumulated arrearage. The trial court additionally ordered that a child support arrearage of $10 per week would be accumulated during the period of unemployment. This Court affirmed the trial court, noting "defendant had twenty-odd work days available each month in which to seek whatever employment would be necessary to earn $5.” Id. at 253. The Court also noted that defendant could satisfy that obligation without endangering the receipt of his ADC-U benefits. See also Gonzalez v Gonzalez, 121 Mich App 289; 328 NW2d 365 (1982), which applied Causley.
We now consider the limited number of cases, including Dunn, supra, which seem to support plaintiffs position. Prior to Dunn, this Court decided two other cases which considered the "bad faith” requirement that Dunn applied and plaintiff seeks to have applied in this case. In Moncada v Moncada, 81 Mich App 26; 264 NW2d 104 (1978), this Court considered a case where the defendant voluntarily left a job, thus voluntarily reducing his income. This Court concluded that voluntary reductions in income, if made in bad faith, will not warrant a modification of support payments. Id. at 30-31. Similarly, the Court concluded that no reduction in child support payments is warranted where the party voluntarily worsens his financial position through unconscionable disregard for the welfare of his children. Id. at 31. However, the Court also ruled that, absent bad faith or wilful disregard for the children’s interest, a voluntary reduction of income is not an adequate reason for a refusal to modify a support order. Id.
Thereafter, this Court followed this ruling in Rutledge v Rutledge, 96 Mich App 621; 293 NW2d 651 (1980). In Rutledge, the defendant was an attorney who was employed at an annual salary of $24,000 who, thereafter, left his employment to enter private practice, whereupon his gross income dropped to approximately $2,500. This Court, applying the "bad faith test” adopted in Moneada, ruled that an individual should be allowed to make good faith changes in his employment and that his child would share in the financial inconvenience or hardship resulting from that change. Rutledge, supra at 625.
Finally, we turn to Dunn, the case relied upon by plaintiff. In Dunn, the plaintiff joined a religious order which required him to take a vow of poverty. As a result, the plaintiffs income was substantially reduced. This Court applied the bad-faith test and, concluding that the plaintiff had entered the ministry in good faith, ruled that his child support obligation should accordingly be adjusted downward and be based upon his actual income, rather than his potential income.
Since Dunn, this Court has again addressed the question of voluntary reduction in income, but it is not entirely clear whether the subsequent panels have chosen to follow the bad-faith test first enunciated in Moneada. In Wilkins v Wilkins, 149 Mich App 779, 792; 386 NW2d 677 (1986), Judge Brennan cited Dunn for the proposition that the trial court is not limited to consideration of the parent’s actual income, but may also look to the parent’s unexercised ability to earn. The Wilkins opinion was relied upon by Judge Kelly in Joslin v LaVance, 154 Mich App 501, 503-504; 398 NW2d 453 (1986), for the proposition that a trial court is not limited to a parent’s actual income, but may consider the unexercised ability to earn. In Joslin, the plaintiff requested a reduction in his child support obligation and, at that time, was earning approximately $50 per week as a self-employed woodcut ter. The Court noted that the plaintiff was mentally and physically healthy and offered no reason why he was unable to obtain full-time or additional part-time employment. Therefore, the Court concluded that the trial court did not abuse its discretion in setting child support payments at $21 per week. The Court did, however, conclude that it was inappropriate to require the plaintiff to accumulate child support arrearages for a period of time that he had physical custody of other children not at issue in that case.
We recognize the difficulty facing both trial courts and the appellate courts in those cases where a noncustodial parent makes an employment choice which reduces his or her income, thus necessitating either a reduction in the child support obligation or imposition of a child support obligation representing a high, perhaps confiscatory, percentage of the parent’s income. On the one hand, the courts must not unduly interfere with the personal lives and career choices of individuals merely because they have been involved in a divorce. On the other hand, because there has been a divorce, the courts are thrust into the middle of the parties’ personal lives in order to protect the interests of the minor children who are also unwilling participants in the divorce. Unfortunately, our extensive review of the case law considering those situations in which there has been a voluntary reduction in income has not lessened the burden of our task in the instant case. On the one hand, as found by the trial court, plaintiff left the job market in good faith and for the arguably laudable goal of strengthening her newly entered into marriage. On the other hand, we do not believe that plaintiff is entirely free to make financial decisions which are allegedly in the best interest of her new family, but which abrogate her responsibilities to the preexisting family. It would be inequitable to allow the children of her first marriage to suffer merely so that her second marriage can purportedly prosper.
While we share the Supreme Court’s ambition in Sword, supra, to provide trial courts with guidance in determining a party’s "ability to pay” child support, we also share the Supreme Court’s inability to define that term with any degree of precision. Rather, we can only refer to those criteria which the Sword Court articulated, noting that the list it provided is not exhaustive. While we believe that a party’s motivation in voluntarily reducing his or her income is an appropriate factor for the trial court to consider in determining a party’s ability to pay, to the extent that Moneada and its progeny mandated the use of a "bad faith test” as being dispositive, we must disagree with those cases. While we do not necessarily disagree with the result reached in Moneada, Rutledge and Dunn, we do not necessarily agree with the reasoning of those cases either. Rather, we conclude that, where a party voluntarily reduces his or her income, or, as in this case, voluntarily eliminates his or her income, and the trial court concludes that the party has the ability to earn an income and pay child support, we do not believe that the trial court abuses its discretion by entering a support order based upon the unexercised ability to earn. Accordingly, we affirm the trial court’s exercise of its discretion in the case at bar by entering a child support order based upon the income plaintiff received before voluntarily leaving her employment. Nothing in the case presented by plaintiff, other than her own desire not to do so, suggests that she is unable to comply with that order.
Plaintiff’s final argument is that the trial court erred in considering the friend of the court guidelines which had not yet been adopted. We note that the trial court did not treat those guidelines as dispositive. Rather, the trial court merely found that those guidelines were helpful and noted the extreme likelihood of those guidelines being adopted in the near future. We cannot conclude that the trial court abused its discretion in utilizing those guidelines as a tool in determining the appropriate level of child support.
The decision of the trial court is affirmed. Costs to defendant.
R. L. Tahvonen, J., concurred.
However, in Joslin, Judge Gillis concurred in part and dissented in part, agreeing that the trial court did not abuse its discretion in refusing to reduce the child support obligation, but Judge Gillis would not eliminate the arrearage, finding that Causley, supra, and Gonzalez, supra, were dispositive. Judge Gillis noted that the plaintiff in Joslin was able to be employed and earn the minimal amount necessary to support his child.
We note in passing that plaintiff offered no testimony in the trial court that the well-being of her marriage necessitated her unemployment. Not only is the record devoid of any evidence that her new husband was of the philosophy that a woman’s place was in the home or of any psychological testimony that their marriage required a full-time housewife, there was testimony by plaintiff that she speculated that she would be returning to the job market within a few years. While we accept the trial court’s conclusion that plaintiff chose to leave the employment world in good faith, we are not at all impressed with her unsupported claim that the necessity of plaintiff’s working in order to provide child support for her children would unduly harm her new marriage. | [
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Per Curiam.
In this consolidated appeal, defendants appeal from a November 6, 1984, order of the Ingham Circuit Court granting plaintiffs an 11.27 percent interest in the Commerce Center Building joint venture in Lansing. We reverse.
In June, 1965, plaintiffs and defendant Ross C. Howard formed a corporation called United Commerce, Inc. (uci) to construct an office building in downtown Lansing. Plaintiff Lud and Howard together owned almost ninety percent of the stock in the corporation, and the remaining plaintiffs, as minority shareholders, owned approximately eleven percent. Uci obtained a ninety-nine-year lease on the construction site and made arrangements for construction and long-term mortgage financing. On November 1, 1966, plaintiffs Lud, Curtis, DiVietri, and Roether contracted to sell their shares to Graham & Associates, Inc. On March 2, 1967, the remaining plaintiffs contracted to sell their shares to G. Graham Development Company. The stock sale agreement was closed in May, 1967, with a $30,000 down payment. The shares were turned over to Burton Abstract & Title Company to be held in escrow, and Burton Abstract was to release stock as payments were made, on a pro rata basis. The balance of the payments were to be made when the building was completed. The contract terms gave the purchasers the right to vote the stock as long as the contracts were not in default. If there was a default, the stock was to be returned to plaintiffs. The purchasers of the stock were to obtain a builder and pay all charges and fees as they became due in connection with the mortgage and financing for the building. The stock sale agreements were assigned to Howard, who was an officer of G. Graham Development Company and had a substantial interest therein. Uci began construction of the building, but did not complete it.
In February, 1968, defendants Howard, Leslie R. Schmier, David Jassy, Samuel Linden, Barney Katzman, Joseph S. Radom, Wanda B. Statszewski, and Mark S. Weisberg formed a joint venture, Commerce Center Building (ccb). Ccb was to acquire all the assets of uci and complete the building. On February 23, 1968, ccb purchased the assets of uci and agreed to assume the liabilities of uci, a portion of which were the payments to be made to plaintiffs under the stock sale agreements. At that time, Howard owned a majority of the stock of uci and, pursuant to the assignment, held the stock sale contracts for the remainder of the stock.
The building was completed in 1970 and, as required by the terms of the stock sale agreements, ccb began making payments to the selling stockholders. After paying approximately $45,000 to the stockholders, ccb defaulted, and plaintiffs retrieved their stock from the escrow agent. Subsequently, Howard filed suit against plaintiffs for specific performance of the stock sale agreements. On March 24, 1980, the trial court ordered specific performance of Lud’s contract to sell, but refused to order specific performance by the remaining plaintiffs. As a result, Howard held 88.73 percent of the shares in uci, and plaintiffs held 11.27 percent. On appeal, this Court affirmed. Howard v Lud, 119 Mich App 55; 325 NW2d 623 (1982).
While that appeal was pending, plaintiffs commenced this action to vacate ccb’s acquisition of uci’s assets on a number of grounds, including claims that as shareholders of record of uci, they were entitled to but did not receive notice of the meeting at which uci transferred its assets to ccb, that there was not a quorum of disinterested directors at the meeting, that Howard lacked authorization from uci to execute the asset transfer contract, and that Howard breached his duty of loyalty by failing to disclose his involvement with G. Graham Development Company and in the transfer of assets from uci to ccb. Ccb and the remaining defendants in this case were not parties to Howard’s specific performance action.
Before this Court’s decision in the specific performance cases, plaintiffs moved for partial summary judgment and for appointment of a receiver, and defendants moved for accelerated judgment or, in the alternative, for summary judgment.' The court denied both motions on March 5, 1982. Following release of this Court’s decision in the specific performance cases, plaintiffs and defendants renewed their motions, and on August 18, 1983, the court entered an opinion and order again denying the motions. In its opinion, as amended by the order, the court stated:
On March 24, 1980, this Court held that plaintiffs owned approximately eleven percent (11%) of uci’s stock as of April 1971, and the Court of Appeals agreed. Just as plaintiffs could not have blocked the sale, the defendants cannot have divested the plaintiffs of their ownership of uci stock. This Court is satisfied that plaintiffs’ ownership of 11 percent of uci’s stock flowed through the corporate shells to the existing joint venture, Commerce Center Building.
The court then set the matter for trial for August 14, 1984, limited to the issue of the date plaintiffs’ stock would be valued and a determination of the value of the stock at the time. However, on the trial date, the court repeated its earlier holding that plaintiffs’ 11.27 percent ownership of uci stock had transformed into an equal percentage ownership of ccb stock. The court then stated that the date of valuation would be March 24, 1980, the date of its order in the specific performance suits. On November 6, 1984, the court entered an order incorporating its August 14, 1984, ruling.
In Docket No. 84156, defendants Jassy, Schmier, Linden, Katzman, Radom, Statszewski, Weisberg, and ccb sought leave to appeal the November 6, 1984, order. In Docket No. 84292, defendants Ross and Sally Howard and uci sought leave to appeal the same order. Leave to appeal was granted on October 10, 1985, and the appeals were consolidated.
In both appeals, defendants claim that the trial court erred in finding that plaintiffs are entitled to an 11.27 percent interest in ccb and that the interest should be valued as of March 24, 1980. Because we feel that this award is equitably and legally unjustifiable, we agree.
In equity cases, this Court reviews de novo but we will not reverse the trial court’s decision unless we are convinced that the court’s findings are clearly erroneous or that we would have reached a different result had we occupied the court’s position. Calvary Presbyterian Church v Presbytery of Lake Huron, 148 Mich App 105, 109-10; 384 NW2d 92 (1986), lv den 425 Mich 863 (1986). In its order, the court stated that "the defendants cannot have divested the plaintiffs of their ownership of uci stock.” However, defendants did not "divest” plaintiffs of their uci shares. Plaintiffs had sold those shares under the 1966 and 1967 sales agreements. Under those agreements, Howard held the voting rights of the shares so long as there was no default on the contracts. At the time the assets of uci were transferred to ccb, there was as yet no default. The sale of the assets in no way affected the uci shares, which remained subject to the sales agreements. The court’s order does not explain how plaintiffs’ 11.27 percent interest in uci may be transformed into an 11.27 percent interest in ccb. We find no factual or legal basis for the trial court’s action. It is inequitable to transform the percentage of plaintiffs’ shares in uci into the value of the equivalent percentage of ccb, as the ccb •>joint venturers added capital and risk to complete the building and make it a going, profitable business. We feel that a more equitable remedy is to award plaintiffs the value of plaintiffs’ uci shares according to the 1966 and 1967 agreements. Plaintiffs would then be in the position they would have been in had the contracts been performed. We reverse on this issue and remand to the trial court for a determination of the value of plaintiffs’ uci shares at the time of the agreements.
Defendants in both appeals also claim that plaintiffs may not receive individual relief because this was a shareholder’s derivative action. However, we note that plaintiffs’ action, despite being termed a shareholder’s derivative action by defendants, was not solely a derivative action. In plaintiffs’ second amended complaint, plaintiffs stated:
2. Plaintiffs bring this action as shareholders of Defendant United Commerce, Inc., on behalf of themselves and all other shareholders of United Commerce, Inc. similarly situated and in the right of United Commerce, Inc. [Emphasis added.]
Even if this were strictly a shareholder’s derivative action, relief to the individual shareholders is not precluded. 19 Am Jur 2d, Corporations, § 2467, pp 296-297 states:
Ordinarily, recovery in a stockholder’s derivative action will run in favor of the corporation and not the individual plaintiff, although the courts may grant the stockholders an accounting. In most cases the shareholders gain only indirectly. . . .
However, the general rule that recovery in stockholders’ derivative actions accrues to the corporation is not inflexible nor without exception. The courts may tailor the relief granted to fit the particular case, and in some instances, direct relief to the stockholders may be allowed, although, in such cases, only to those who are shareholders at the time of the distribution.
In the instant case, plaintiffs had requested that the February 23, 1968, sale of assets be set aside. The court refused to do so. Thus, relief for the corporation, uci, was unavailable. Under these circumstances, even though plaintiffs cannot gain the relief they sought on behalf of the corporation, that does not mean that the wrong that they may have suffered as individuals is without remedy. See Brachman v Hyman, 298 Mich 344, 350; 299 NW 101 (1941).
In Docket No. 84292, defendants claim that plaintiffs’ suit is barred by res judicata or collateral estoppel and should have been dismissed by the trial court, because in the earlier specific performance suit by Howard, which was affirmed by this Court, plaintiffs’ allegations of fraud and improper conduct were litigated and decided adversely to plaintiffs. Defendants point out that, in one of the answers to Howard’s complaints, plaintiffs had alleged that they had been fraudulently induced by Howard to sell their stock. The trial court did not find fraud such as would bar Howard’s suit. Thus, argue defendants, the instant suit, in which plaintiffs allege fraud, should be barred.
The doctrine of res judicata bars a litigant from relitigating a claim when (1) the former action was decided on the merits, (2) the matter contested in the second action was or could have been decided in the first, and (3) the two actions are between the same parties or their privies. Admiral Merchants Motor Freight, Inc v Dep’t of Labor, 149 Mich App 344, 350; 386 NW2d 193 (1986), lv den 426 Mich 866 (1986). In the instant case, elements (2) and (3) were not met. The specific performance cases were brought by Howard against Lud and the other selling plaintiffs for specific performance of the stock sale agreements. The instant case was brought by the selling stockholders against Howard, the two corporations, and various other defendants, to set aside the sale of assets from uci to Ccb. The propriety of the sale of assets was not, and could not have been, litigated in the first action. In addition, the additional defendants were not involved in the first suit. Thus, res judicata cannot apply.
The doctrine of collateral estoppel was discussed by this Court in Stolaruk Corp v Dep’t of Transportation, 114 Mich App 357, 362; 319 NW2d 581 (1982):
In order for collateral estoppel to apply, the same ultimate issues underlying the first action must be involved in the second action. The parties must also have had a full opportunity to litigate the ultimate issues in the former action. Fiñeld v Edwards, 39 Mich 264 (1878). Finally, collateral estoppel only applies where there is mutuality of estoppel. Mutuality of estoppel is present if both litigants in the second suit are bound by the judgment rendered in the first suit. Braxton v Litchalk [55 Mich App 708; 223 NW2d 316 (1974)] supra, 720; Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 42-43; 191 NW2d 313 (1971).
Again, "the same ultimate issue” underlying the first action was not involved in the second action. Although plaintiffs did allege that Howard fraudulently induced them to sell their stock in their answer to Howard’s complaint in the first suit, plaintiffs alleged much more in their second suit. Besides alleging that Howard fraudulently induced them to sell their stock, plaintiffs alleged that Howard breached his duty in the sale of uci’s assets to ccb in various manners, and requested that the sale be set aside. This was not litigated in the first action; therefore, the court would have erred had it dismissed plaintiffs’ complaint.
Finally, in Docket No. 84292, defendants contend that the November 6, 1984, order should be reversed because on August 14, 1984, the date of trial, the court failed to state its findings of fact and conclusions of law as required by GCR 1963, 517.1, now MCR 2.517(A)(1). We find that reversal is not required on that ground. In rendering its August 14, 1984, opinion and November 6, 1984, order, the court made reference to its previous opinions and orders. In those opinions and orders, the court made detailed findings of fact and conclusions of law. We feel that by incorporating those findings and conclusions the court met the requirements of MCR 2.517(A). Moreover, under subsection (4), findings of fact and conclusions of law are unnecessary in decisions on motions. The parties had earlier filed motions for summary disposition, which the court had denied. The order at issue here was a ruling on a motion for summary disposition, and, therefore, MCR 2.517(A) did not apply.
The decision of the trial court is reversed and the case is remanded to the trial court for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Allen, J.
Defendant was found guilty by a jury of possession of less than fifty grams of cocaine, MCL 333.7212(l)(a) and (b); MSA 14.15(7212)(l)(a) and (b), MCL 333.7214(a) and (b); MSA 14.15(7214)(a) and (b), and possession of marijuana, MCL 333.7401(1) and (2)(c); MSA 14.15(7401)(1) and (2)(c). Defendant was sentenced on October 28, 1985, to concurrent terms of from 1½ to 4 years in prison on the cocaine conviction and to one year imprisonment on the marijuana conviction. Defendant appeals as right, raising two issues. We affirm.
On May 5, 1984, pursuant to a search warrant, United States Secret Service agents, Michigan state police officers and Clinton County deputy sheriffs cooperated in a search of defendant’s premises on Bancroft Road in Grand Ledge. The search was conducted for the purpose of seizing any counterfeit currency that was on the premises. Defendant was not at home at any time during the search but had been there earlier that day. The police seized counterfeit currency, a small quantity of cocaine and about 3½ pounds of marijuana from the home. At the time of trial, defendant was serving two years probation for a separate federal counterfeit currency conviction.
The search occurred because defendant and Michael Langdon were being investigated for possession of counterfeit currency. Langdon had just been released from prison a few weeks prior to the search. Defendant testified that Langdon had lived at defendant’s house for approximately two weeks before the search. Earlier on the day of May 5, 1984, defendant and Langdon had been involved in an altercation with federal agents. The agents had planned to arrest the two on counterfeit currency charges, but defendant and Langdon had evaded the agénts in an encounter in which there were collisions and shots exchanged between the agents and defendant and Langdon. The search of defendant’s premises was then conducted.
At trial, defendant’s defense was that he did not have possession of the controlled substances, because he had not been living at the house for the two weeks prior to the search due to the fact that he did not want to be around Langdon. Consequently, defendant claimed that he did not know the controlled substances were on the premises. A scale was found in defendant’s bedroom, but defendant claimed he used the scale to reload shotgun shells.
At trial, evidence of the altercation between defendant and federal agents on May 5, 1984, was brought out, over defendant’s objection, on redirect examination of United States Secret Service Agent Joseph Viviano. The prosecutor was allowed to elicit this testimony to counter defendant’s claim that he was not at his house and, therefore, did not know about the controlled substances. Prior to Viviano’s redirect examination testimony, defense counsel had asked every prosecution witness who was present at defendant’s house during the search if they had ever seen defendant there. The trial court permitted the redirect testimony on the theory that the testimony was relevant to show the jury why defendant was not at home during the search.
Later in the trial, the prosecutor asked Michigan State Police Trooper David Emerson if he had found anything in the house indicating who was the owner or occupier of the house. The following exchange took place:
Q: [By the prosecutor] All right. And while you were in that house, did you find or observe or see anything that would indicate who the owner" was, the person occupying that house?
A: The original—first room I started to check was the kitchen area, the cupboard of the kitchen, and there’s a small cupboard up above the place where the refrigerator is built in. On top of the refrigerator I seen an envelope addressed to Mr. Barker.
Q: From whom?
A: I don’t remember from whom on the envelope. We did read the contents of the envelope, though.
Q: Who was that letter from?
A: My understanding or impression after I read it was from his wife.
Q: So apparently—did you get any feel from that particular letter whether or not she was living in that house at that time?
A: I—from what the letter stated, I got the impression she was not living there. It was a letter addressed to him referencing, I guess, coming down on him. She was accusing him in the letter of turning their son into a dope dealer. The school he was attending—
Q: And she wasn’t going to let him see the child anymore or something?
A: Right.
Defense counsel did not object to the question or answer in which Emerson made reference to defendant’s turning his son into a dope dealer. Instead, defense counsel waited a short time until his cross-examination of Emerson to ask for a conference with the trial court off the record. After the prosecutor rested the people’s case, the trial court held a conference out of the jury’s presence in which it became clear that defense counsel, at the off-the-record conference during his cross-examination of Emerson, had brought a motion for a mistrial on the basis of the "dope dealer” reference. The trial court denied the motion for mistrial, holding that defense counsel should have objected to the question since it called for a hearsay response.
On appeal two claims of error are raised: (I) Did admission of testimony concerning defendant’s prior conduct on the day of the search constitute an abuse of the trial court’s discretion mandating reversal? (II) Did the trial court abuse its discretion in denying defendant’s motion for a mistrial, or motion for a new trial, based on a prosecution witness’s statement concerning "turning [defendant’s] son into a dope dealer”?
i
Defendant contends that the trial court erred in permitting, over objection, testimony about the attempt to arrest defendant and the ensuing exchange of gunfire between defendant and federal agents on May 5, 1984, the day of the search of his house. The trial court permitted the testimony because it tended to show why defendant was not at home at the time of the search. Defense counsel had previously inquired of prosecution witnesses whether they had seen defendant at the house.
The testimony of defendant’s shoot-out with federal agents was evidence of other bad acts. Admission of such evidence is prohibited unless permitted under MRE 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.
In order to admit evidence under MRE 404(b), the following four requirements must be met:
(1) [T]here must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant’s identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant’s guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice. [People v Golochowicz, 413 Mich 298, 309; 319 NW2d 518 (1982).]
In general, the admission or exclusion of evidence is within the trial court’s discretion and will not be overturned absent a clear abuse of that discretion. People v Solak, 146 Mich App 659, 673; 382 NW2d 495 (1985). A trial court’s improper admission or exclusion of evidence must result in a miscarriage of justice for an appellate court to find error requiring reversal. MCL 769.26; MSA 28.1096.
However, in the instant case the disputed testimony was not introduced for the purpose of proving the bad character of the defendant. Instead, it was introduced for the relevant purpose of explaining why the defendant was not home when his house was searched. It was also relevant to refute defendant’s explanation that the reason he was not home for two weeks before the search was that he did not want to be around Langdon. Testimony that earlier on the day of the search Langdon and defendant exchanged shots with federal agents and escaped arrest clearly refuted defendant’s claim. The testimony was relevant to an issue in controversy and under MRE 401 was "relevant.” As such it was admissible. People v McKinney, 410 Mich 413, 418-419; 301 NW2d 824 (1981). For these reasons we find no abuse of the trial court’s discretion and no miscarriage of justice. Admission of evidence of a prior bad act is not violative of MRE 404(b) if the evidence is relevant and probative of an issue raised at trial. People v Freeman, 149 Mich App 119, 121-122; 385 NW2d 617 (1985).
ii
The question whether Trooper Emerson’s dope dealer statement so prejudiced the jury that a mistrial should have been ordered presents a more difficult problem. It is argued that because defense counsel failed to immediately object and ask for a curative instruction defendant was denied effective assistance of counsel. Appellate counsel for defendant asserts that "but for this serious mistake” defendant had a reasonable chance of acquittal. In People v Hunter, 141 Mich App 225, 229; 367 NW2d 70 (1985), our Court stated the test for assessing ineffective assistance of counsel claims as follows:
The first branch of the inquiry focuses on the Sixth Amendment right to counsel and requires that defense counsel perform at least as well as a lawyer with ordinary skills and training in the criminal law and must conscientiously protect his client’s interest undeflected by conflicting considerations. Second, ineffectiveness of counsel may also be shown where defense counsel makes a serious mistake but for which defendant would have had a reasonably likely chance of acquittal.
At the hearing on the motion for a new trial defense counsel explained that the reason he did not immediately object and request a cautionary instruction on the trooper’s statement was to avoid reemphasizing it. Obviously, counsel’s decision was a matter of trial strategy. Courts do not substitute their judgment for that of trial counsel in matters of trial strategy. People v Carr, 141 Mich App 442, 452; 367 NW2d 407 (1985). Under the circumstances existing when the statement was made, we are unable to conclude that the strategy was unreasonable. Futhermore, defendant now claims that no cautionary instruction could have cured the prejudice from the answer. If this is so, then a timely objection would not have helped anything, and, thus, it cannot be said that, but for the failure to object, defendant would have had a reasonably likely chance of acquittal.
Defendant’s next and strongest argument is that the trial court erred in denying defendant’s motion for a mistrial. According to defendant, quite apart from the question of whether the trooper’s statement was hearsay, admission of the disputed statement "tainted the presumption of innocence of the defendant to such a degree that the trial court could not do anything to erase the impression of defendant turning his son into a dope dealer.” Ergo, a mistrial or a new trial should have been ordered. As noted earlier, trial counsel moved for a mistrial and subsequently moved for a new trial. Both motions were denied. Although the issue is extremely close, we find no error.
The power to declare a mistrial should "be used with the greatest caution, only under urgent circumstances, and for very plain and obvious causes.” 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 698, p 426. A mistrial will not be declared as a consequence of any mere irregularity which is not prejudicial to the rights of the defendant. People v Watson, 307 Mich 596; 12 NW2d 476 (1943). The grant or denial of a motion for a mistrial rests in the trial court’s sound discretion and an abuse of discretion will only be found where denial of the motion deprives the defendant of a fair trial. People v Green, 131 Mich App 232; 345 NW2d 676 (1983). The test is the defendant’s inability to get a fair trial. People v Partee, 130 Mich App 119; 342 NW2d 903 (1983); 2 Gillespie, supra, p 429. In the instant case, if prejudicial error occurred, it came from witness Emerson’s volunteered and unresponsive statement. Generally, unresponsive statements by pros ecution witnesses are not grounds for declaring a mistrial.
A witness cannot bring error into a case by volunteering inadmissible testimony which is im-mediátely stricken out. It may be true that such remarks work a certain amount of mischief with the jury, but a conviction is to be tested on appeal by the rulings of the judge. A witnéss cannot put error into a case by an unauthorized remark, neither called out by a question nor sanctioned by the jury; and if what he or she says or does improperly is likely to do much mischief, it is presumed that the judge will apply the proper corrective measures in his or her instructions if requested to do so. Unresponsive testimony by a prosecution witness, although error, is not necessarily grounds for reversal. Generally, the failure of defense counsel to request a curative instruction regarding a gratuitous answer will preclude appellate review of the issue in the absence of a showing of manifest injustice. [2 Gillespie, supra, § 600, pp 203-204.]
Application of the foregoing principles of law to the instant case indicates that the trial court did not abuse its discretion in denying a mistrial. Eíach prosecution witness was asked on direct examination whether there was any item of property in the house which would indicate ownership or possession of the house. When Trooper Emerson was asked that question, he responded that he found an envelope addressed to defendant on the refrigerator. When next asked who the envelope was from, he replied that it was a letter from defendant’s wife. He was then asked whether he could tell from the letter whether the wife was living in the house. That question was clearly probative of whether defendant lived there too, since if defendant’s wife lived there, it would be likely that defendant also resided there. The first part of the trooper’s answer to the question was directly on point. He stated he "got the impression she was not living there.” The second part of the trooper’s answer, "she was accusing him in the letter of turning their son into a dope dealer,” was totally unresponsive. It volunteered information not requested in the question asked.
Any mischief worked by reason of the unexpected and volunteered response could have been cured by a curative instruction had defense counsel moved for a curative instruction. However, for tactical reasons counsel decided to not make the request. Further, unresponsive statements equally or far more egregious than the statement made in the instant case have been found not to be grounds for a mistrial. People v Stegall, 102 Mich App 147; 301 NW2d 473 (1980) (witness, when asked if defendant was a bragger, responded: "Not really. He had mentioned . . . that he had killed a guy or something in North Carolina.”); People v Yarbrough (On Remand) (On Rehearing), 86 Mich App 105; 272 NW2d 345 (1978) (witness, when asked if he knew defendant, replied: "Yes, I met him in the penitentiary.”); People v McQueen, 85 Mich App 348; 271 NW2d 231 (1978) (witness, when asked how long he had known defendant, responded: "I first met him . . . when he had gotten out of county jail”); People v Histed, 56 Mich App 630; 224 NW2d 721 (1974) (witness, when asked if he drank with defendant often, replied: "[CJouldn’t have been too often; he just got out of Jackson.”).
Of course, if the prosecution knew in advance that the witness would respond in the manner indicated or somehow conspired or encouraged the response to which the objection is taken, the defendant is denied a fair trial. 2 Gillespie, supra, § 600. We reject defendant’s claim that the prosecution’s purpose in having Trooper Emerson testify about the contents of the letter was to inject highly inflammatory evidence in the presence of the jury. The question asked Emerson was no different than the question asked of other witneses. Furthermore, upon reconsideration after being presented with a copy of the transcript, the respected trial judge backed away from his initial judgment that the trooper’s response was intentionally and knowingly asked by the prosecutor. In the absence of any indication in the transcript that the prosecution was at fault, we decline to find an abuse of discretion.
Finding no error on the issues raised on appeal, defendant’s convictions and sentence are affirmed.
Mackenzie, P.J., concurred. | [
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Champlin, J.
The plaintiff brought an action of trover against the defendants for the conversion of a stock of goods which defendants had seized and sold, as they claimed, under a chattel mortgage executed by plaintiff to them, and also for the conversion of a quantity of cedar ties, posts and telegraph poles. The cause was tried before a jury, who found a verdict for plaintiff, and the defendants allege error. All the errors assigned relate to the charge of the court.
The defendants were wholesale grocers at Bay City, and the plaintiff was a grocer at Alpena, and in connection with his business there was engaged in dealing in railroad ties, cedar posts and telegraph poles. In 1878 plaintiff commenced to purchase goods from defendants, and on the 2d day of January of that year had obtained a credit of $112, which he secured by a chattel mortgage on his stock of goods in his store at Alpena. This indebtedness he was to pay on or before May 1st, 1878. On March 30th, 1878, plaintiff gave defendants another chattel mortgage upon his Stock of goods and fixtures then in his store at Alpena, and the mortgage was so drawn as to cover future accessions to the stock. This mortgage was conditioned to pay defendants “ the sums of all moneys that may now be due said second parties on goods already purchased, and all moneys that may become due for goods that may be shipped to said first party by said second parties from time to time.” • Then follows a provision as to time of payment, and all the goods were to be paid for by January 1st, 1879. On November 21st, 1878, plaintiff signed and delivered to defendants a paper writing, as follows:
“Bay City, Mich., Nov. 21, 1878.
Whereas, Chas. Kramer, of Alpena, Mich., has an open book account with Gustin, Merrill & Co., of Bay City, and whereas said Kramer proposes to trade goods for cedar posts and ties during the coming winter; now, it is hereby agreed that said Kramer will buy said cedar posts and ties, and pile them on Hitchcock’s dock at Alpena, or some dock in Alpena, to the order of Gustin, Merrill & Co.; said cedar posts and ties, when so bought, shall be piled on some convenient dock that said Kramer may select in Alpena, and be and belong to said Gustin, Merrill & Co.; provided, if said Kramer, at any time he may pay said Gustin, Merrill & Co.’s book account, said Gustin, Merrill & Co. will deliver to said Kramer said posts and ties.
In witness, the parties hereto have set their hands this 21st day of November, 1878.
Charles Kramer.”
This was followed a little less than a year later by a more formal instrument, viz.:
“Whereas, Charles Kramer, of Alpena, Mich., did on the 21st day of November, 1878, agree with Gustin, Merrill & Co., of Bay City, Mich., that he would buy cedar posts and ties, and pile them on some dock to the order of Gustin, Merrill & Co., said Kramer to select said place of piling; said posts and ties so bought were to be the property and belong to said Gustin, Merrill & Co., in consideration of Gustin, Merrill & Co. furnishing said Kramer with supplies. Now, whereas said Kramer has placed on docks and on the beach, in the neighborhood of Alpena, a number of posts and ties belonging to said Gustin, Merrill & Co.; and whereas said Kramer wishés to continue getting out posts, ties and telegraph poles for Gustin, Merrill & Co. Now, in consideration, of one dollar paid by said Kramer, it is hereby agreed that said Kramer will buy posts, ties and telegraph poles, and pay for same in goods supplied by Gustin, Merrill & Co.; and said cedar posts, ties and poles shall be placed in some convenient place for shipment, and shall be the property of said Gustin, Merrill & Co. from the time that said Kramer purchases the same. No posts, ties or poles to be purchased by said Kramer except for Gustin, Merrill & Co., and no accounts to be made by said Kramer to any one for cedar, nor give or.allow any liens to arise on said cedar posts, ties or poles. All cedar ties, posts and poles purchased or traded for by said Kramer to belong absolutely to said Gustin, Merrill & Co., and said Kramer will deliver all of said cedar on board vessels, free of charge, to said Gustin, Merrill & Co., and said Kramer will load and ship as directed, in the name of said Gustin, Merrill & Co.
This contract is made between the parties for the purpose of trade. It is provided, however, that said Kramer may, at any time he wishes, pay said Gustin, Merrill & Co. any notes, book account and advance that may be due said Gustin, Merrill & Co., then said Gustin, Merrill & Co. will deliver to said Kramer, said posts, ties and poles that they may own at the time got out for them by said Kramer.
All the above to be performed by Gustin, Merrill & Co. in consideration of one dollar, the receipt whereof is hereby acknowledged, and in consideration of book account now opened with said Kramer.
In witness the parties hereto have set their hands this . first day of October, 1879. Charles Kramer.
Witness: T. J. Tost.”
October 3d, 1879, the plaintiff executed to the defendants a chattel mortgage upon his stock of goods at Alpena, and all accession^ thereto during the life of the mortgage, to secure the payment of $1000, payable $500 in six months, and the balance in one year, with interest at ten per cent.
It appears from the testimony returned in the bill of exceptions that plaintiff went on and purchased cedar posts, ties and telegraph poles and piled them on the docks at Alpena and vicinity, and that, in July and August, and prior to the' 12th day thereof, two cargoes had been shipped by defendants to Chicago, and were sold by them in that market, and the net avails credited to plaintiff'on defendants’ books; that this was done by consent of both parties, but upon plaintiff’s being informed of the price the shipment sold for in Chicago, he refused to have any more shipped to that market.
In the latter part of August, 1880, the defendants seized, advertised and sold the stock of goods covered by the chattel mortgage of March 30th, 1878, and endorsed and applied the avails, $197.39, on that mortgage September 1st, 1880. This mortgage named no particular amount to be paid, but was given as security for past and future indebtedness. The defendants also took another load of cedar posts, ties and telegraph poles from the dock in the vicinity of Alpena, where plaintiff had placed them, and shipped them to Detroit, and sold them, and credited plaintiff with net avails. Just what this cargo brought does not appear. Plaintiff claims and testified that this shipment was made without his consent? and against his positive prohibition; and for this caigo he brought trover as for a wrongful conversion. The defendant, on the contrary, testifies that plaintiff did consent to his removal and shipment of the property, and only refused to have it shipped to Chicago. It does not appear with certainty the precise time when this third cargo was shipped, but I conclude from the best light the testimony affords that it was after the mortgage foreclosure, (September 1st,) and before November 1st following.
The testimony showed that at the time the last mortgage was given there was then due the defendants, after allowing all credits, $633, aside from interest, and that on July 27, 1880, he was owing defendants $1830.37, and the amount credited on account of the two cargoes sold in Chicago was near $1000, leaving at time of foreclosure about $830.37 due defendants; and that after crediting the proceeds of the mortgage sale and all'^eedar which defendants had received and sold, plaintiff still owed them abalance of $564.56. The plaintiff gave testimony tending to prove that the last mortgage was to supersede and take the place of al] other mortgages upon the goods, and was given to secure defendants upon what he owed them on account at the date of the mortgage; that plaintiff did not give his popsent to taking away any of the cedar after the second load, and forbade the defendants and their agents taking the same; that defendant Uifield came to him while his goods were seized and told him that if he, plaintiff, would give defendants the cedar, they would allow him to go on with the store; that he refused this offer; .that the mortgage of 1879 was given to secure defendants upon what he owed them at its date upon account. The plaintiff also produced monthly statements from the defendants, from the date of said mortgage of 1879 up to July 27th, 1880, which statements were received in evidence without objection. These statements showed that since the giving of the mortgage of 1879 the plaintiff had paid defendant a much larger amount than the face of said mortgage upon his said account, and which had been credited to him on general account. The bill of exceptions then recites:
“ Upon the introduction of this evidence it was claimed by the plaintiff’s counsel that these statements showed conclusively that the mortgage of October, 1879, had been fully paid. Whereupon the defendant’s counsel conceded that if the mortgage of October, 1879, superseded and took the place of all former mortgages, then the defendants had no claim under the said mortgage of 1879, and did not rely on the same as any defense in this action.”
There was no evidence tending to show that defendants received any more for the cedar taken by them and sold than the amount which they credited them on account, after taking out freights and inspection and expenses in connection with the sale thereof ; and there was no evidence tending to show that they had not sold and credited him with all the cedar taken in the manner above stated.
There was no evidence tending to show that the plaintiff did not owe the defendants the balance claimed by them, unless they could be charged with the. value of the cedar taken at Alpena on the second cargo of the Winslow, or that taken afterwards by them.
There was'no evidence tending to show that the agreement of October 1st, 1879, signed by plaintiff, and the agreement of November 21st, 1878, signed by plaintiff, in reference to cedar, were changed, modified or superseded, or that these contracts did not remain in full force at the time the cedar was taken by the defendants; and there was no evidence tending to show that defendants took or claimed the cedar under any other contract or agreement than these two, except as the same ma}'- be found in the fact that plaintiff forbade them taking any cedar after a certain day, as indicated in his testimony hereinbefore given.
The circuit judge, after instructing the jury that the plaintiff could not recover in this form of action for the value of the cedar taken by defendants after plaintiff had forbidden them to do so, proceeded to the consideration of the question whether he could recover for the goods taken from the store. He charged the jury that these goods were covered by two mortgages, one executed in March, 1878, and the other on the 3d of October, 1879 ; that they were given upon the stock of goods in the store for the purpose of securing defendants for advances in goods which they had already made to him and which were anticipated in' the future. They were collateral with the cedar contracts, which were ¡liso given for the same purpose : and for the purpose of securing the same general indebtedness ; that it was claimed by the plaintiff that the mortgage of October, 1879, superseded and canceled all prior mortgages then existing on the stock, and if they should find from the evidence that this claim was true, then defendants would be liable to plaintiff for the market value of the goods in the store at the time and place they took them, because it is not claimed that defendants foreclosed this mortgage at all, but one of the mortgages which was superseded and canceled by it; that it is admitted that they did not take his goods on the mortgage of 1879. But if, on the contrary, they should not find that the mortgage of October, 1879, superseded the former ones, then there was another question in the case. And the court instructed the jury at considerable length upon the law, in ease they should find that the mortgage of October, 1879, did not supersede the former mortgages.
The circuit judge submitted to the jury the question whether or not the mortgage of 1879 was to supersede and cancel all former mortgages, and they found specially that it was. Under the concession made by the counsel for defendants on the trial this finding of the jury left the defendants without any justification for. seizing the property, and leaves nothing in the case to which the principle laid down in Brink v. Freoff, 40 Mich. 610, can be made to apply. If the mortgage of 1879 took the place of all former mortgages, and was given to secure the balance of account at that time due, and this indebtedness had been subsequently paid, their mortgage lien on the stock of goods ceased to exist. It may be that the defendants’ attorney, in making the concession, felt confident that the jury would not find from the evidence submitted that the mortgage of 1879 was given to supersede that of 1878.
Upon this material question the testimony was conflictingj and the finding of the jury upon it is conclusive upon the parties. Having found this issue in favor of the plaintiff, it became unnecessary for them to investigate the questions which would have arisen had they found that the mortgage of 1879 did not supersede and cancel the prior mortgages, and it is equally unnecessary for us to express any opinion upon that branch of the charge of the court to the jury.
The first four assignments of error relate to that portion of the charge which under the finding of the jury became immaterial; and of the remaining assignments the fifth, seventh and eighth relate to that portion of the charge covered by the concession of the defendants made upon the trial. The defendants cannot complain of any ruling or any charge of the court based upon propositions, or facts conceded to be correct upon the trial of the cause. Albrecht v. Gies 33 Mich. 391.
The judgment is affirmed.
The other Justices concurred. | [
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Sherwood, J.
This action is upon a policy of insurance issued by defendants August 27, 1878, to recover damages for loss by fire. The property was destroyed on the 28th day of August, 1879, and consisted of barns, sheds, hay, grain, carriages, harness and farm implements claimed to be of the value of $2200.
Defendant contested the claim of the plaintiffs upon the following grounds: First, they falsely represented in their application for insurance that they owned the property insured; second, they falsely represented the amount of incumbrance thereon, and upon the farm; third, they fraudulently concealed the facts in relation to the title to the property and incumbrances thereon, and upon Avhich reliance was placed by defendants in making the policy; fourth, after the making of the policy plaintiffs placed incumbrances upon the property without giving defendant notice; fifth, that part of the property at the time of its destruction, had been seized and taken on execution, and they did not own any of the property at the time of the fire ; sixth, that the fire occurred through the agency of plaintiffs, and was not accidental • seventh, that plaintiffs swore falsely in making the proofs of loss. The cause was tried by jury, and the plaintiff obtained judgment at the circuit for $1936.44. Defendant brings error.
The first, fifth, ninth, sixteenth, nineteenth and twentieth assignments of error were very properly abandoned on the argument, as we discover nothing in them of which the defendant can rightly complain ; and we have been unable to discover any error in the admission or rejection of testimony by the circuit judge. The exceptions taken to the charge, therefore, only remain to be considered; and only such as were discussed by counsel for defendant do we deem it necessary to review.
The defendant’s request stated in the tenth assignment of error was properly refused. There was really nothing to base it upon. No statement is contained in the application as to mortgages. The Nichols mortgage was the only one on the property at. the time referred to. The others had all been paid. It appears from the record that the defendant, by its secretary, filled out the application for insurance in this case, (which was a writt’en one;) and if it is not as full or as perfect as the rules of the company required, or omitted to give information desirable to the insurer, further statements should have been called for by the company. This was not done, but on the contrary, upon such statements and facts as they called for and were made by the insured, the defendant issued its policy and assumed the risk ; and not until the loss actually occurred and had substantially been adjusted was any complaint made. Then when discovery' was made of the neglect of its own officer, defendant sought to take advantage of it by defeating the effect of its contract. Good faith and fair dealing will not allow this to be done. The defendant must be deemed to have waived any further statement than was made in the application; but there is nothing in the contract between the parties which would render the policy void, even though the full amount of the incumbrances were not disclosed, if no fraud was intended.
These views substantially dispose of the defendant’s twelfth, thirteenth, fifteenth and seventeenth assignments of error, which involve the same considerations.
The fourteenth assignment of error relates to the refusal of the court to charge the jury that if either plaintiff incumbered the property insured without notice to or consent of the company it would render the policy void. No error was committed in this refusal. There is nothing contained in the by-laws or contract of insurance making void the policy under such circumstances. Neither is there anything in the record showing the hazard was increased by the mortgages claimed. Chattel mortgages upon growing crops, until harvested, do not come within the condition of this policy as to notice. By the terms of the. contract of .insurance the policy becomes void or of no effect only upon the happening of one of the following events: First, when an assessment is not paid after notice, as required by the by-laws of the company; second, when the premium is overdue and unpaid on a note given therefor; third, if, in making statement of loss by the insured, “ there be any fraud or false swearing, with fraudulent intent.”
The defendant’s twenty-first assignment of error relates to the charge of the court that notice of subsequent incumbrances was only required to be given, under the by-laws, when such incumbrances increased the hazard, and if not given would not render the policy void. We find no error in this charge. The only reference to the subject is that which is contained in by-law 8, which says: “ All notices of other insurance, increased hazard by mortgage, or whatever else may affect the rights and privileges of the parties, must be made to the secretary, and his approval endorsed thereon.” It will be noticed that the failure to give notice is not made to avoid the policy; but, aside from this, we think the court was entirely correct when he stated there was no evidence showing increased hazard.
The defendant excepts to the following charge given by the court, being the twenty-third assignment of error: “ That to defeat the plaintiff’s right to recover upon the basis of false swearing, yon must not only find that he swore to that which was false, but that he did so with fraudulent intent; and in weighing the question of false swearing with fraudulent intent, it is your duty to take into consideration the knowledge that the affiant, Mr. Tiefenthal, had of the facts that he is alleged to have sworn to, and it is for you to determine what statements in that paper or items he understood he was swearing to. If you should come to the conclusion from the evidence that any of the items that he understood he was sw'earing to were false, you will then inquire whether he made it with a fraudulent intent; that is to say, with an intent knowingly to get a greater price for an article than he knew it to be worth, or to get pay for articles that he knew he had not lost.” We think this instruction properly construed the contract of the parties upon this subject, and applied the law correctly.
The court charged that if they found the loss to be the amount stated in their proofs, and. as agreed upon by the terms of the contract, they should find their verdict for two-thirds thereof, with interest. This charge corresponds with the terms of the policy, and the instruction was proper.
A careful examination of this record satisfies us that a fair and impartial trial has been had, and that no error was committed by the circuit judge.
The judgment must be affirmed.
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Cooley, C. J.
The petitioner was convicted in the Police Court of Detroit on January 25, 1884, on two separate charges of simple larceny, on one of which he was sentenced to confinement in the Detroit House of Correction for the term of three months from and including the day of conviction, and on the other he was sentenced to a like confinement “ from and after April 24, 1884, unless before that time any order or judgment committing the said Harris Bloom to the said Detroit House of Correction should sooner expire, or the said Harris Bloom should be otherwise entitled by law to be released from confinement in the said Detroit House of Correction, then, and in such case, said term and period of three months hereinbefore first recited to commence, and the said Harris Bloom be committed and held in-the said Detroit House of Correction for the full end and term of three months thereafter.” The petitioner, having served out the term under the first sentence, now applies on habeas corpus for a discharge, on the ground that cumulative-sentences are illegal.
We have no statute providing for such sentences, and in the absence of statutory provision therefor the question presented is not without difficulty, as the following cases will abundantly show: Wilkes' Case 6 Brown Parl. Rep. 354 Queen v. Cutbush L. R. 2 Q. B. 379; State v. Smith 5 Day 175; Brown v. Com. 4 Rawle 259; Warden of State Prison v. Allen 11 Ind. 389; James v. Ward 2 Metc. (Ky.) 271; Kite v. Com. 11 Met. 581; Ex parte Meyers 44 Mo. 279; Ex parte Roberts 9 Nev. 44; People v. Forbes 22 Cal. 135; Brown v. Rice 57 Me. 56; People v. Whitson 1 Cent. Law J. 552. But, expressing no opinion upon the general question, we think a sentence to confinement to take effect in the-future cannot be sustained, unless it is certain and definite, and not subject to undefined and uncertain contingencies. The commitment in this case is not of that character.
The petitioner must be discharged.
The other Justices concurred. | [
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Campbell, J.
In this case the claimant undertook to prosecute a claim against an estate upon a negotiable instrument which was in possession of another person claiming title to it and having the usual marks of ownership. The same cause of-action had been presented by her for allowance, and in this way the paper came within the reach of the court, but in her controversy and subject to her claim of ownership. The circuit court of Ionia county, to which the case had been appealed, refused on the trial to allow plaintiff to recover.
We think this ruling was correct. The other claimant of the note was a stranger to this controversy between plaintiff and the estate, and could not be brought into it. This suit, after reaching the circuit court, is in all respects equivalent to a common-law action and subject to the same substantial rules, inasmuch as the cause of action is a common-law right. The rule has always been settled that a person who seeks to recover on such a written agreement as the one involved here must be prepared to produce it and have it before the court on the trial so as to be properly marked and impounded, if necessary, and identified with the judgment and delivered up if satisfied. This rule had no exceptions unless by the order of a court of equity, on full indemnification the owner who had lost it should be permitted to sue without its production. Our statutes have supplied a similar remedy in the same suit. But unless a plaintiff sues as on a lost note, and brings himself within the exemption afforded by equity or by the statute, the rule is fixed.
It is not a rule of technicality but of justice, and no case presents a fuller illustration of it than the present. There are two rival claimants for this note, and both sue. J There is no legal method of settling the mutual rights of the several claimants in this controversy. The holder of the note, having the legal title, as it appears on its face, must recover unless defendant can show she does not own it, and of this showing the jury must be satisfied. Another jury, at the suit of this plaintiff, might take a different view of the case as presented to them, and give a second judgment against the estate. This result might be attained either by failures in testimony, or different views of the credit of witnesses, or collusion. The plaintiff should have resorted to such pro ceedings against the other claimant as would have bound her, and protected the estate against a double litigation. The evidence which will destroy her claims, if there is any such evidence, is within his knowledge and reach. lie cannot throw upon the estate the burden of fighting his battles. It is, as already stated, the purpose of the rule referred to, to prevent just- such complications as we are asked to create by overruling the action of the circuit court. We are not called on to advise what remedy plaintiff may yet have against the other claimant, or to consider the point which is hinted at in the record, of the position of these conflicting claimants concerning some questionable transactions. But we agree with the circuit court that no recovery can be had here.
The possession of the note by the circuit court does not affect the case, as it belonged to the party who filed it, until taken from her by some proper proceeding. The circuit court could not in any summary way dispose of her rights. It is not enough for the plaintiff to show the note as possessed or claimed by any one else. He must be able to produce it as controlling it, and as able to protect the defendant from having it produced by some one else with a better apparent title than his own.
The judgment must be affirmed.
Cooley, O. J. and Champlin, J. concurred. | [
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Sherwood, J.
Edwin H. Stevens in 1866 owned, occupied and carried on a farm of two hundred acres in Bushnell, Montcalm county, and continued to do so until he died in 1879. After his death administration was had upon his estate by Moses H. Iiulin, who was duly appointed administrator. Commissioners to examine and adjust claims against the estate were duly appointed, and upon the last day for presenting claims against the estate, William H. Stevens presented a claim of something over $600 for the use of land and a load of hay. The commissioners allowed the claim at the sum of $611.25. Erom this decision the administrator appealed to the circuit court, where a trial was had by jury, and the appellee’s claim was reduced to $19.20. Erom this allowance the claimant appeals to this Court, and the case is now before us on error.
Erom the record it appears that the deceased conveyed to claimant, by warranty deed, one hundred acres of his farm on the 6th day of April, 1866, but that the grantor remained in the occupancy and use of the same in connection with other portions of his farm, cultivating and cropping it, and taking the benefit 'thereof, the same after as before the making of the deed, until he died, and in no other manner. The rent claimed was for the last six years of such use before the death of the intestate.
The exceptions all relate to the rulings in admitting testimony, and to the instructions of the court to the jury. One of the main questions in the case was whether or not the conveyance from deceased to W. H. Stevens was a deed, or intended as a mortgage. For the purpose of showing that it was the former, appellant offered in evidence the deed referred to, and then to show that the deceased regarded the sale as absolute, and that the claimant was therefore entitled to rent, he offered the statement of deceased to the effect that he intended, the year he died, to pay the claimant $500. After the appellant had put in this testimony and rested, and the estate had put in its proofs [which were to the effect that the claimant had told the administrator that the deed he held was only a trust-deed], the claimant proposed to show in rebuttal that the deceased, in his life-time, said that he had sold the property to claimant. This testimony was prop-, erly excluded; it had no tendency to disprove the defense claimed.
While William H. Stevens was on the stand as a witness for himself he was asked [on cross-examination] if he paid the taxes on the land he claimed to have bought of deceased, and was permitted to answer he had not. This was objected to by claimant’s counsel, but the testimony was proper. He had been interrogated as to his right to the use of the land, •and to the rents and profits thereof through his ownership ■of the fee, and this testimony tended slightly to rebut his claim of ownership, and was admissible on his cross-examination.
The remaining assignments of error relate to the charge -of the court as given, and his refusals to charge. The court held and charged in substance that in order to entitle the claimant to an allowance for rent, the case must show a state of facts which raised an agreement to that effect with deceased, express or implied, and this, we think, was proper.
There was testimony given in the case tending to show that the deed was intended as a mortgage; and the court, at the request of counsel for the estate, charged the jury that, if the deed was so intended to be a mortgage, then the claimant could not be allowed his claim for rent. This instruction' stated the law correctly.
The second request which was given by the court charged that if the deed was absolute, then the deceased, if he remained in possession without any contract for that purpose after the making of the deed, was a tenant at sufferance, ■and as such not liable for rent. In the third request the ■court charged that the burden of proving such contract. express or implied, was upon the claimant, and that it would not be implied from the simple continuance of occupancy after the sale. Under the testimony contained in this record we think these charges were not erroneous.
The deed was not recorded until 1881, and we are not informed when it was delivered, if ever. The continued possession of the grantor long after the recording of his deed to another is sufficient to raise a presumption that the right to the same has been retained, or arises from some right acquired by him in the land. Bloomer v. Henderson 8 Mich. 395; Bennett v. Robinson 27 Mich. 26.
We think the evidence in the case sufficient to warrant the court in submitting the character of the conveyance to the jury, and leaving them to say whether it was a mortgage or not, or whether there was any agreement for rent, and there was no error in so doing.
We have failed to discover any error in the last two-assignments. In these the court simply calls the attention of the jury to certain testimony in the case bearing upon the question of the character of the conveyance, and to their duty -in the case. We find nothing alleged as error in the charge which can justify the allegation, or that is prejudicial to the rights of the claimant.
The judgment of the circuit court must be affirmed.
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Per curiam.
Action for slander. The defendant was held to bail on two affidavits, which set out conversations with the affiants, in which the defendants had made grossly slanderous charges against the plaintiff. The declaration which was filed in the case contained numerous counts charging the defendant with having uttered the slanderous words in the presence and hearing of divers persons, naming none of them. The defendant pleaded to the declaration, and afterwards moved for an order that the defendant file a statement of the particulars of the alleged slander, and the court made the order. The plaintiff not complying therewith, the court ordered judgment of nonsuit.
We think this order should not have been made. Particulars were given in the two affidavits with abundant fullness, and to the extent of the conversations there given, at least, the action should have proceeded. The court should not have gone beyond limiting the plaintiff to the cases set out in the two affidavits in case he failed to give further particulars.
Writ ordered, but without costs. | [
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Per Curiam.
Defendant, Vilis Bers, appeals as of right from an order of the Ottawa Circuit Court denying his motion to enforce a consent judgment of divorce and a subsequent order denying his motion for reconsideration. In his motion, defendant sought to satisfy a lien in the amount $17,500 he held on the marital home pursuant to a divorce judgment after the marital home no longer was the domicile of the parties’ minor child. The trial court ruled that under the terms of the consent judgment of divorce defendant was not entitled to enforce his lien.
The parties entered into a consent judgment of divorce on January 9, 1985. Under the judgment both parties were given joint legal custody of their minor son, Eriks, with physical custody given to the plaintiff mother. The agreed-upon property settlement awarded the marital home to the plaintiff but contained the following provision:
It is further ordered and adjudged that the Defendant, Vilis Bers, shall have a lien upon said marital home in the amount of $17,500.00, non interest bearing, payable upon the first of any of the following occurrences:
(1) The death of the Plaintiff.
(2) The remarriage or "de facto marriage” of the Plaintiff.
(3) Sale of the marital home, or failure to use the marital home as the domicile of the minor child.
(4) The minor child turning 18 years of age, or finishing high school, whichever occurs last.
It is further ordered and adjudged that the Court retains jurisdiction to enforce the lien provisions of this Judgment. The lien shall bear interest at 9% per annum in the event of default by the Plaintiff, interest to commence at the time of default. [Emphasis added.]
Some ten months after the entry of the divorce judgment, defendant filed a petition for change of custody and modification of the judgment of divorce. The trial court subsequently granted defendant’s petition on September 3, 1985, and physical custody of Eriks was awarded to defendant. On October 29, 1985, defendant filed a motion to enforce the judgment of divorce. Defendant argued that the court-ordered change in custody of the parties’ minor child resulted in a failure to use the marital home as the domicile of the minor child. Consequently, pursuant to the above-quoted provision of the consent judgment, defendant claimed he was entitled to payment in satisfaction of his lien upon the marital home in the amount of $17,500.
Following oral arguments, the trial court denied the motion. The court reasoned that the court-ordered custody transfer did not constitute a failure by plaintiff to use the marital home as the domicile for the minor child. Also, the court ruled that, because liberal visitation rights were granted to plaintiff, the domicile of the child had not actually changed. Finally, the court found that defendant was estopped from collecting on the lien based on a finding that defendant had intended to seek custody of Eriks prior to the entry of the divorce judgment and that had this fact been known to the plaintiff it could have materially affected the consent divorce judgment. An order denying defendant’s motion was entered on February 13, 1986. Eight days later, on February 21, 1986, defendant filed a motion for rehearing or reconsideration. MCR 2.119(F). The trial court denied the motion, finding that defendant had failed to file his motion in a timely fashion. The court also noted that the issues raised on rehearing were the same as previously decided and a different disposition was not warranted.
On appeal, the issue raised and argued by the defendant is whether the court-ordered change of custody of the parties’ minor child from plaintiff to defendant requires plaintiff to pay defendant $17,-500 in satisfaction of defendant’s lien on the marital home pursuant to the consent divorce judgment, because the home is no longer the domicile of the minor child. Defendant asserts that the trial court in this case abused its discretion in ruling that the change in custody did not require the plaintiff to satisfy the lien. Initially, however, we must determine what effect, if any, the defendant’s late filing of his motion for reconsideration has on this Court’s ability to review the merits of his claim.
An appeal by right to this Court can only be taken from a final order of the circuit court or other tribunal. See MCR 7.203. Here, defendant appeals from the order of the trial court which denied his motion for rehearing or reconsideration brought pursuant to MCR 2.119(F). Defendant sought a rehearing because he felt that the court’s original ruling was contrary to the record and legally incorrect. MCR 2.119(F) provides:
(1) Any motion for rehearing or reconsideration of the decision on a motion must be served and filed not later than 7 days after entry of the order disposing of the motion.
(3) Generally, and without restricting the discre tion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.
This provision concerning motions for rehearing and reconsideration did not exist under the prior court rules.
In this case, the record reveals that an order denying defendant’s motion to enforce the divorce judgment and satisfy his lien was entered on February 13, 1986. Defendant filed his motion for rehearing or reconsideration of that order on February 21, 1986, eight days after entry of the original order. Therefore, defendant failed to bring his motion for rehearing in a timely manner. As a result, the trial court was certainly justified in refusing to hear the motion. MCR 2.119(F)(1). However, we do not believe that the trial court’s denial of defendant’s motion for rehearing based on the failure to bring the motion in a timely manner prevents us from reaching the merits of this controversy.
The purpose of MCR 2.119(F) is to allow a trial court to immediately correct any obvious mistakes it may have made in ruling on a motion, which would otherwise be subject to correction on appeal, but at a much greater expense to the parties. 1 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 537. The time requirement for filing a motion for reconsideration or rehearing insures. that the motion will be brought expeditiously. Concerning the application of this rule, this Court in Smith v Sinai Hospital of Detroit, 152 Mich App 716, 723; 394 NW2d 82 (1986), stated:
If a trial court wants to give a "second chance” to a motion it has previously denied, it has every right to do so, and this court rule does nothing to prevent this exercise of discretion. All this rule does is provide the trial court with some guidance on when it may wish to deny motions for rehearing.
There is no suggestion in the court rules that the filing requirements for rehearing motions should be considered jurisdictional. Further, the bringing of a motion for rehearing or reconsideration is not required in order to take an appeal by right to this Court. Defendant was required to take his claim of appeal from the order denying his motion for rehearing because that was the final order of the lower court related to his controversy. Certainly, by appealing, defendant desires to challenge the merits of the trial court’s original ruling in this Court and does not seek a remand for a rehearing. While we find no abuse of discretion in the trial court’s denial of defendant’s motion for rehearing as untimely, in our opinion that ruling is irrelevant to the determination of the merits of defendant’s appeal.
Turning to the merits of the controversy, we must decide whether the trial court erred in refusing to enforce the consent judgment of divorce and require plaintiff to satisfy defendant’s lien on the marital home. As a general rule, property settlements adjudged final are nonmodifiable. Dougherty v Dougherty, 48 Mich App 154, 158; 210 NW2d 151 (1973). Concerning consent judgments of divorce, this Court in Vigil v Vigil, 118 Mich App 194, 197-98; 324 NW2d 571 (1982), stated:
Courts are bound to uphold property settlements reached through negotiations and agreement by the parties in a divorce action absent fraud, duress, or mutual mistake. The rule applies whether the settlement is reduced to writing or is simply orally placed on the record and consented to. Kline v Kline, 92 Mich App 62, 71-72; 284 NW2d 488 (1979). However, where any property settlement is ambiguous, the court has inherent power to interpret and clarify its terms. Greene v Greene, 357 Mich 196; 98 NW2d 519 (1959); Boucher v Boucher, 34 Mich App 213, 219; 191 NW2d 85 (1971).
However, a clarification in a consent judgment of divorce is permitted only where no change in the substantive rights of the parties will result from the clarification. Boucher, supra, p 230.
In this case, the trial court determined that the terms "failure” and "domicile” in the consent divorce judgment were ambiguous. The court then proceeded to supply definitions for these terms. Based on these definitions, the lower court determined that its change of custody order did not trigger the payment of the lien clause. We find that the lower court clearly erred in its ruling
The consent judgment of divorce entered in this case was the result of extensive negotiations between the parties and their respective counsel. The court was not a party to these negotiations and simply gave judicial approval to the final settlement. In our opinion, the phrase "failure to use the marital home as the domicile of the minor child” is not ambiguous or in need of clarification. The court interpreted the phrase as requiring that there must be a failure by the plaintiff to use the marital home as the domicile of the minor child. The court also indicated that there had not been a change in custody so long as the plaintiff exercised her visitation rights.
However, by interpreting the divorce judgment in the manner it did, the trial court effectively changed the substantive rights of the parties. This was clearly impermissible. In effect, the trial court placed restrictions on the defendant’s ability to realize financial satisfaction of his lien that were not present in the original judgment. As a result of the court’s clarification, the minor child may no longer be domiciled in the marital home, but defendant could not enforce the lien unless plaintiff took some affirmative steps to change the domicile of the child from the marital home. Moreover, the trial court’s interpretation of the term "domicile” holds defendant’s right to enforce his lien in abeyance as long as plaintiff exercises her rights to visitation. This condition was certainly never contemplated in the original divorce judgment. Therefore, we hold that the trial court clearly erred in refusing to enforce the divorce judgment as written and thereby permit the defendant to satisfy his lien on the marital home.
In addition, the trial court committed error requiring reversal in using the doctrine of estoppel as a ground for denying defendant’s motion to enforce the divorce judgment. To justify the application of the estoppel doctrine, it must be found that there was a false representation or concealment of a material fact by a party, made with the expectation that the other party would rely on this fact, and knowledge of the actual facts on the part of the concealing party. Lothian v Detroit, 414 Mich 160, 177; 324 NW2d 9 (1982).
Here, the trial court found that defendant had formed the intent to gain custody of his son prior to the entry of the divorce judgment and concealed this intent from the plaintiff. As a result, the court ruled that defendant was estopped from asserting the court-ordered change of custody as a ground for enforcing the lien. However, the record reveals that, some six months prior to the entry of the judgment, defendant informed the plaintiff that their son desired to live with him and that he felt it was in the best interest of the child to do so. Thus, defendant did not conceal the fact that he wanted custody of his son, and plaintiff should have reasonably expected that the custody issue would arise again after the entry of the divorce judgment, especially in light of the expressed preference of the child to live with his father. Therefore, the doctrine of estoppel was inapplicable to this case.
Accordingly, we reverse the ruling of the trial court and remand this case to allow the defendant to enforce the judgment of divorce and seek satisfaction of his lien on the marital home.
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] |
D. E. Holbrook, Jr., J.
In March, 1984, plaintiffs filed a complaint in circuit court against Dr. Aurora Genoves-Andrews and in the Court of Claims against the State of Michigan, Department of Public Health, for the wrongful death of plaintiffs’ decedent, Thomas Baltus. The defendant in each case was granted summary judgment on the basis that plaintiffs failed to plead facts sufficient to avoid the doctrine of governmental immunity. Plaintiffs’ motion for rehearing was denied and they appealed in each case as of right. The cases were consolidated on appeal with plaintiffs raising several issues as to each defendant. We find we must reverse the entry of summary judgment as to defendant State of Michigan on plaintiffs’ claim that the State of Michigan maintained a defective public building and as to defendant Genoves-An-drews on plaintiffs’ 42 USC 1983 claim. We affirm the orders of summary judgment in all other respects.
Plaintiffs are the personal representatives of the estate of Thomas A. Baltus, who committed suicide while residing at defendant State of Michigan’s Ypsilanti Regional Psychiatric Hospital. Baltus had been involuntarily admitted to the hospital on March 11, 1983, following an attempted suicide. Upon his admission to the hospital, Baltus was placed in the care of defendant Genoves-Andrews and other employees of the hospital.
During his first six days of care at the hospital, Baltus was the subject of a one-to-one suicide precaution watch. On March 16, 1983, the precaution watch was discontinued, notwithstanding Bal-tus’ continuing threats to kill himself. The following day Baltus went to the restroom unaccompanied and unsupervised and hanged himself from an overhead dividing bar inside a toilet stall.
Plaintiffs’ complaints stated numerous theories for defendants’ liability in avoidance of governmental immunity. With respect to this appeal, plaintiffs alleged the following against defendant State of Michigan:
1. Failure to adequately and properly design a building whereby plaintiffs’ decedent would have been unable to commit suicide by hanging himself from the dividing bar inside a toilet stall.
2. Failure to provide the psychiatric and medical care necessary to protect plaintiffs’ decedent from his suicidal tendencies in violation of 42 USC 1983.
3. Liability for breach of contract to provide adequate medical attention to decedent.
4. Liability for the "abuse” of plaintiffs’ decedent in violation of MCL 330.1722; MSA 14.800(722).
Against defendant Genoves-Andrews, plaintiffs alleged the following:
1. Liability for acts of medical malpractice committed during the course of ministerial duties.
2. Liability for deprivation of medical treatment under color of law in violation of 42 USC 2983.
3. Liability for the "abuse” of plaintiffs’ decedent pursuant to MCL 330.1722; MSA 14.800(722).
Defendants each moved for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), on the basis that plaintiffs’ complaints failed to state a single claim upon which relief could be granted. The motions were granted in each court.
Plaintiffs first contend that pursuant to MCL 691.1406; MSA 3.996(106) their complaint in the Court of Claims stated a claim in avoidance of immunity against the State of Michigan on the basis that the state maintained a defective public building. We agree.
Although under MCL 691.1407; MSA 3.996(107) (hereafter § 7) all governmental agencies are immune from tort liability to the extent that they are engaged in governmental functions, pursuant to MCL 691.1406; MSA 3.996(106) governmental agencies remain statutorily liable for personal injuries arising out of dangerous or defective conditions in public buildings under the agency’s control. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591; 363 NW2d 641 (1984). A building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices. Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979). Whether a part of a public building is dangerous or defective is to be determined in light of the uses or activities for which the building is specifically assigned. Bush, supra, p 731; Lockaby v Wayne Co, 406 Mich 65, 76-77; 276 NW2d 1 (1979).
We do not agree with defendants’ contention that the factual allegations of plaintiffs’ complaint allege negligent supervision rather than a structural fault in the Ypsilanti Regional Psychiatric Hospital building. Plaintiffs’ complaint alleged in the following manner that the hospital had a structural defect:
(j) In the Ypsilanti Regional Psychiatric Hospital operating and maintaining its facilities on grounds which are inadequate to meet the physical needs of its patients and, in particular, the decedent, i.e., to provide restrooms which would allow agents, servants and/or employees of the Ypsilanti Regional Psychiatric Hospital to supervise and/or observe patients such as the decedent while they are in the restroom to prevent suicide attempts, when the Defendant knew, or in the exercise of reasonable care should have known, that such a situation constitutes a building defect that would cause serious harm and death to its in-patients, and in particular, to the decedent;
(k) In the Defendant failing to properly design its restrooms by installing bathroom stalls within the Ypsilanti Regional Psychiatric Hospital that had dividing bars across the top of said bathroom stalls, which would allow in-patients such as the decedent to make suicide attempts by trying to hang themselves from said dividing bars, when the Defendant knew, or in the exercise of reasonable care should have known, that such design defects would cause serious harm and death to the decedent.
A motion for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), tests only the legal sufficiency of the pleadings. The court must accept as true all well-pled factual allegations as well as any conclusions which can reasonably be drawn therefrom. The court may grant the motion only when the claim, on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify the right to recovery. Partrich v Muscat, 84 Mich App 724, 730; 270 NW2d 506 (1978). Where immunity from suit is at issue, the complaint must plead facts in avoidance of immunity. Williamson v Jones, 125 Mich App 433, 436; 336 NW2d 489 (1983). We conclude that plaintiffs’ complaint in the Court of Claims sufficiently pled facts in avoidance of immunity under the defective buildings exception by alleging a structural defect in the hospital in light of the uses or activities for which the wards in the hospital were specifically designed. Cf., Lockaby, supra; Westervelt v Dep’t of Corrections, 86 Mich App 788; 273 NW2d 563 (1978), rev’d 406 Mich 941 (1979) (Citing Lockaby, supra.). Hence, as to the State of Michigan, summary judgment, on this ground, was inappropriate.
Plaintiffs next contend that the Court of Claims erred in granting defendant State of Michigan summary judgment with respect to plaintiffs’ claim for breach of contract. Plaintiffs’ claim is based on the holding in Ross, supra, that § 7 granting immunity to governmental agencies will not bar recovery simply because the underlying facts could have also established a tort cause of action where a plaintiff successfully pleads and establishes a non-tort cause of action:
Defendants brought their motion for summary judgment under GCR 1963, 117.2(1). Such motions test the legal basis of the complaint, not whether it can be factually supported. Accepting as true a plaintiff’s allegations, and any conclusions that may reasonably be drawn therefrom, the motion must be denied unless the claim is so clearly unenforceable as a matter of law that no factual development could justify a right to recover. Although most of the allegations contained in Counts i and ii are identical, the latter count also alleges that plaintiffs contracted and agreed with defendants for decedent’s care and treatment; plaintiffs paid valuable consideration for decedent’s care; and defendants breached their contractual duties to plaintiffs and decedent. These allegations are sufficient to withstand defendants’ challenge.
We recognize that plaintiffs have and will attempt to avoid § 7 of the governmental immunity act by basing their causes of action on theories other than tort. Trial and appellate courts are routinely faced with the task of determining whether the essential elements of a particular cause of action have been properly pleaded and proved. If a plaintiff successfully pleads and establishes a non-tort cause of action, § 7 will not bar recovery simply because the underlying facts could have also established a tort cause of action. [Ross, supra, pp 647-648.]
We find in the instant case that plaintiffs stated facts necessary to establish a contract between plaintiffs’ decedent and the Ypsilanti Regional Psychiatric Hospital. Nonetheless, summary judgment was appropriate because certain statutory provisions necessitate a finding that, as a matter of law, no contract existed.
First, defendant State of Michigan was legally obligated to provide care to plaintiffs’ decedent. Thomas Baltus was admitted to the hospital after execution of an application and physician’s certificate for hospitalization. Pursuant to § 423 of the Mental Health Code, MCL 330.1423; MSA 14.800(423), this procedure was mandatory. Further, under § 430 of the Mental Health Code, the hospital was required to provide Baltus with a psychiatric examination within twenty-four hours of his admission. If a psychiatrist certifies that the patient is one who requires treatment, the patient’s hospitalization may continue pending a court hearing. MCL 330.1430; MSA 14.800(430). In the instant case, the court hearing was held for Baltus and, pursuant to MCL 330.1468; MSA 14.800(468), he was committed to the hospital for a period not to exceed sixty days. As a result, defendant State of Michigan was required by statute to admit and care for plaintiffs’ decedent at the Ypsilanti Regional Psychiatric Hospital. Because the hospital was legally obligated to admit plaintiffs’ decedent, its promise to do so does not amount to sufficient consideration for a contract. See Green v Millman Brothers, Inc, 7 Mich App 450, 455; 151 NW2d 860 (1967), lv den 379 Mich 786 (1967).
In view of the above statutory provisions, the element of mutuality of assent was lacking on the part of defendant State of Michigan for purposes of the formation of a valid contract. See Brown v Considine, 108 Mich App 504, 507; 310 NW2d 441 (1981). Accordingly, summary judgment with respect to plaintiffs’ breach of contract claim was appropriate.
Plaintiffs next contend that the Court of Claims and the circuit court erred in granting each defendant’s motion for summary judgment on plaintiffs’ claims, under 42 USC 1983, that defendants violated plaintiffs’ decedent’s constitutional rights by their deliberate indifference to his medical needs. We disagree.
With respect to defendant State of Michigan, we find that, while we recognize the state as a "person” under § 1983, we nevertheless find it to be immune from this type of suit.
42 USC 1983 specifically provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
We acknowledge that other panels of this Court have held that the state is not a person subject to a § 1983 lawsuit. See Hampton v Michigan, 144 Mich App 794; 377 NW2d 920 (1985); Will v Dep’t of Civil Service, 145 Mich App 214, 223; 377 NW2d 826 (1985), lv gtd 422 Mich 973 (1985). However, we adhere to our position stated in Smith v Michigan, 122 Mich App 340; 333 NW2d 50 (1983), lv gtd 422 Mich 973 (1985), that the state is a person within § 1983. See also Karchefske v Dep’t of Mental Health, 143 Mich App 1; 371 NW2d 876 (1985); Lowery v Dep’t of Corrections, 146 Mich App 342, 354; 380 NW2d 99 (1985).
We follow the well-reasoned opinion in Kar-chefske to find that plaintiffs’ § 1983 claim is barred by reason of defendant’s sovereign immunity. In Karchefske, a panel of this Court stated that, although the state is a person within § 1983, the question of its immunity from such a suit requires a separate analysis under federal law:
Thus far, we are persuaded that the state is a § 1983 person and that the question of immunity requires separate analysis. Plaintiffs are correct in their assertion that immunity in state court from § 1983 damages liability is a question of federal law and cannot be determined on the basis of the governmental immunity act. MCL 691.1401 et seq.; MSA 3.996(101) et seq. Martinez v California, 444 US 277, 284, fn 8; 100 S Ct 553; 62 L Ed 2d 481 (1980), and Cook v City of Detroit, 125 Mich App 724, 730; 337 NW2d 277 (1983). The United States Supreme Court has construed § 1983 to incorporate a particular immunity defense only after careful inquiry into considerations of both history and policy. Newport v Fact Concerts, Inc [453 US 247, 259; 101 S Ct 2748; 69 L Ed 2d 616 (1981)]. Clearly, the sovereign immunity of the states was well established at common law at the time that § 1983 was enacted. Furthermore, we are convinced that state immunity was supported by such strong policy reasons that "Congress would have specifically so provided had it wished to abolish the doctrine.” Owen v City of Independence, 445 US 622, 637; 100 S Ct 1398; 63 L Ed 2d 673 (1980), quoting Pierson v Ray [386 US 547, 555; 87 S Ct 1213; 18 L Ed 2d 288 (1967)].
In considering the policy supporting sovereign immunity of the states from liability in their own courts, we find a compelling analogy in the Eleventh Amendment, even though the latter provision on its face governs the federal judicial power. The Eleventh Amendment is "but an exemplification” of the fundamental rule that "a State may not be sued without its consent.” Ex parte State of New York No 1, 256 US 490, 497; 41 S Ct 588; 65 L Ed 1057 (1921), quoted in Pennhurst State School & Hospital v Halderman, 465 US 89, 98; 104 S Ct 900, 907; 79 L Ed 2d 67, 77 (1984). Therefore, we would expect the same clarity of Congressional intent to abrogate traditional sovereign immunity as the United States Supreme Court demanded (and found lacking) in Quern [v Jordan, 440 US 332; 99 S Ct 1139; 59 L Ed 2d 358 (1979)] with respect to Eleventh Amendment immunity.
It would be anomalous, to say the least, that Congress would create a federal remedy to be enforced in the federal courts, but decline to give the federal courts power to enforce the remedy against the states while providing for enforcement by the state courts.
Section 1983 did not deprive the state courts of jurisdiction to enforce federal rights, but added to the power of the federal courts. Allen v McCurry, 449 US 90, 99; 101 S Ct 411; 66 L Ed 2d 308 (1980). Since Congress did not extend the federal power to abrogate state sovereign immunity, we think it declined also to extend the state power. Thus, we are persuaded to accept at face value the Supreme Court’s statement in Quern, supra, p 341, that Congress did not intend "by the general language of § 1983 to override the traditional sovereign immunity of the States.” See Thiboutot v Maine, 405 A2d 230, 236 (Me, 1979), aff'd 448 US 1; 100 S Ct 2502; 65 L Ed 2d 555 (1980), and Kapil v Ass’n of Pennsylvania State College & University Faculties, 68 Pa Cmwlth 287; 448 A2d 717, 720 (1982), rev’d on other grounds 504 PA 92; 470 A2d 482 (1983). [.Karchefske, supra, pp 8-10. See also Lowery, supra.]
Accordingly, summary judgment for failure to state a claim was appropriate with respect to plaintiffs’ § 1983 claim against defendant State of Michigan.
On the other hand, summary judgment in favor of individual defendant Genoves-Andrews on plaintiffs’ § 1983 claim was erroneous. A state’s failure to provide a detainee with necessary medical care and treatment has been found to establish a § 1983 cause of action based on the violation of the detainee’s constitutional right to due process of law if the plaintiff alleges acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Estelle v Gamble, 429 US 97, 106; 97 S Ct 285, 292; 50 L Ed 2d 251, 261 (1976); Brewer v Perrin, 132 Mich App 520, 529; 349 NW2d 198 (1984).
In Brewer, this Court delineated a two-part test to evaluate a plaintiff’s claim for failure to provide necessary medical care and treatment under § 1983:
In evaluating a plaintiffs claim of failure to provide necessary medical care and treatment, courts use a two-step test: "It requires deliberate indifference on the part of [the] officials and it requires the prisoner’s medical needs to be serious.” West v Neve, 571 F2d 158, 161 (CA 3, 1978).
Hendrix v Faulkner, 525 F Supp 435, 454 (ND Ind, 1981), explained the second of these require ments: "A medical need is serious if it is 'one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’ Laaman v Helgemoe, 437 F Supp 269, 311 (D NH, 1977).”
To show this prong of the test [deliberate indifference], a plaintiff must "show either denied or unreasonably delayed access to a physician for diagnosis or treatment of a discomfort-causing ailment, or failure to provide prescribed treatment.” Todaro v Ward, 431 F Supp 1129, 1133 (SD NY, 1977). See also Ramos [v Lamm, 639 F2d 559, 575 (CA 10, 1980)]. [Brewer, supra, p 530.]
Plaintiffs herein alleged that Dr. Genoves-An-drews intentionally, willfully, wantonly, recklessly, maliciously and negligently violated the constitutional rights of the decedent in violation of 42 USC 1983 by failing to provide the medical and psychiatric care necessary to protect the decedent from his suicidal tendencies. Plaintiffs further allege that although defendant Genoves-Andrews knew that the decedent had previously attempted suicide and had threatened to do so again, defendant Genoves-Andrews ignored his need to be attended. Those allegations are sufficient to state a claim. They satisfy the two-part test of alleging deliberate indifference and a serious medical need enunciated in Brewer, supra, and are analogous to the allegations made in Mosqueda v Macomb Co Youth Home, 132 Mich App 462; 349 NW2d 185 (1984). Plaintiffs should be allowed to proceed with proofs on this claim.
Plaintiffs next contend that the circuit court erred in granting defendant Genoves-Andrews’ motion for summary judgment with respect to the negligence claim. We disagree. Individual employ ees of governmental agencies are immune from liability for negligent acts or omissions if they are: (1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial, acts. Ross, supra, pp 633-634.
Plaintiffs contend only that defendant Genoves-Andrews’ decision to discontinue the one-to-one suicide precaution watch and to allow plaintiffs’ decedent to attend the restroom unsupervised were actions ministerial in nature and, therefore, not shielded by governmental immunity.
In Ross, the Supreme Court explained the ministerial-discretionary distinction:
"Ministerial” acts have been defined as those which constitute merely an obedience to orders or the performance of a duty in which the individual had little or no choice. . . . An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a non-tortious manner. In a nutshell, the distinction between "discretionary” and "ministerial” acts is that the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making. Here too, for clarity, we would add the word "operational” so the operative term would be "ministerial-operational” acts.
Many individuals are given some measure of discretionary authority in order to perform their duties effectively. Therefore, to determine the existence and scope of the individual’s immunity from tort liability in a particular situation, the specific acts complained of, rather than the general nature of the activity, must be examined. The ultimate goal is to afford the officer, employee, or agent enough freedom to decide the best method of carrying out his or her duties, while ensuring that the goal is realized in a conscientious manner. [Ross, supra, pp 634-635.]
This Court has previously held that medical decision-making is inherently discretionary. See Adams v Northville State Hospital, 131 Mich App 583; 345 NW2d 207 (1983), lv den 422 Mich 891 (1985); Hamilton v Reynolds, 129 Mich App 375; 341 NW2d 152 (1983), lv den 422 Mich 891 (1985); Fuhrmann v Hattaway, 109 Mich App 429, 436-437; 311 NW2d 379 (1981), lv den 414 Mich 858 (1982). We agree and find in the present case that defendant Genoves-Andrews’ decision was discretionary. Accordingly, defendant Genoves-Andrews was immune from liability for any negligence arising out of that decision and summary judgment on plaintiffs’ negligence claim was appropriate.
Finally, plaintiffs contend that defendants are liable for the abuse perpetrated upon decedent, pursuant to MCL 330.1722; MSA 14.800(722), and therefore their claim based on this statute stated a cause of action in avoidance of governmental immunity. We disagree.
Section 722 of the Mental Health Code provides:
(1) A recipient of mental health services shall not be physically, sexually, or otherwise abused.
(4) Any recipient of mental health services physically, sexually, or otherwise abused shall have a right to pursue injunctive and other appropriate civil relief.
In Siener v Michigan, 117 Mich App 179; 323 NW2d 642 (1982), aff'd 420 Mich 567; 363 NW2d 641 (1984), this Court stated:
Subsection (4) extends the right to "appropriate civil relief’ to an abused recipient. Because a public mental health facility is immune from tort liability when engaged in the exercise or discharge of its governmental function, MCL 691.1407; MSA 3.996(107), damages sought in a tort action do not constitute "appropriate civil relief’ and, thus, may not be included even under this hypothetical reading. [Siener, supra, p 185.]
Even though we have found that plaintiffs stated a claim in avoidance of governmental immunity based on the defective public buildings exception, we nevertheless conclude that a claim against the state pursuant to § 722 in this instance is not "appropriate civil relief’ since the claim is based on the state’s action or inaction in allowing the alleged abuse to occur. The state is immune from tort liability in this instance since, at the time of decedent’s death, it was engaged in a governmental function. MCL 691.1407; MSA 3.996(107). Hence, summary judgment as to defendant State of Michigan was appropriate.
However, individual employees of a state agency do not enjoy this type of blanket immunity. As noted, such individuals are liable if their tortious acts occur outside the scope of employment, while performing ministerial acts or while acting in bad faith. Ross, supra, p 592. Moreover, there is no immunity for intentional torts committed by individual employees, such as acts of abuse prohibited under § 722. Hence, because the suit for damages would otherwise be available against an individual state employee who is accused of abusing a mental patient, we find that such a suit is "appropriate civil relief.”
Plaintiffs have, however, failed to sufficiently allege that the acts perpetrated by Genoves-Andrews defendant on their decedent constituted "abuse” under the Mental Health Code. MCL 3301722(1); MSA 14.800(722)(1) protects against physical, sexual or other types of abuse committed upon recipients of mental health services. Such abuse is usually demonstrated by actions committed with much more than a negligent state of mind. The abuse is normally committed intentionally, recklessly or, at the very least, with a grossly negligent state of mind. Further, the primary purposes of the statute are clear: "[T]o ensure that patient are treated in a humane manner and that their privacy is maintained” and "to protect the patient from certain abuses by the mental health facility or its staff.” Rocco v Dep’t of Mental Health, 114 Mich App 792, 798-799; 319 NW2d 674 (1982), aff'd 420 Mich 567; 363 NW2d 641 (1984).
The only action alleged by plaintiffs on the part of defendant Genoves-Andrews is that after six days defendant Genoves-Andrews decided to discontinue the one-to-one suicide watch and plaintiff was subsequently allowed to attend the restroom without supervision. Taking these allegations in a light most favorable to plaintiffs, Partrich, supra, we do not find that this type of action constitutes abuse within the meaning of § 722. Hence summary judgment with respect to the claim against Genoves-Andrews was appropriate.
In view of the foregoing, we conclude that the Court of Claims and the circuit court erred in granting summary judgment in favor of defendant State of Michigan on plaintiffs’ defective public building claim and in favor of defendant Genoves-Andrews on plaintiffs’ 42 USC 1983 claim. We therefore reverse the orders of summary judgment in these respects only. The orders are affirmed in all other respects.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
The panel in Hampton indicated that it had issued a certification of conflict order pursuant to Administrative Order No. 1984-2, 418 Mich Ixxxii, on the issue of whether the state is a person within 42 USC 1983. This appears to be the case with respect to Karchefske and Will as well. Lowery; supra, p 354, n 4. We have done the same herein. | [
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D. E. Holbrook, Jr., P.J.
Respondent appeals as of right the order entered on October 29, 1985, by the Michigan Tax Tribunal granting petitioner Federal-Mogul Corporation summary disposition on its petition for refund of franchise fees and awarding interest under the provisions of the Department of Revenue act. Respondent’s motion for rehearing was denied. Petitioner has cross-appealed claiming entitlement to additional interest on the refund. We vacate the order with respect to the award of interest.
On June 18, 1974, Federal-Mogul filed with the Franchise Fee Division of the Michigan Department of Treasury a claim for refund of $202,398.02 for the years 1963 through 1968. That amount included annual franchise fees of $155,745.11 and interest of $46,652.91. Federal-Mogul had paid the fees and interest on or about August 18, 1972, pursuant to an assessment following an audit by the Department of Treasury. Federal-Mogul claimed a refund on the basis that the Franchise Fee Division had no power to make adjustments for the years 1963 through 1968. The Franchise Fee Division denied the claim on September 25, 1975.
Federal-Mogul had filed its application for refund under the franchise fee act, particularly § 10, 1921 PA 85, as amended. MCL 450.301 et seq.; MSA 21.201 et seq. A review of the franchise fee act reveals that it makes no provision for interest on a claim of refund. Section 10 of the franchise fee act was repealed by 1975 PA 230. Section 1(3) of 1975 PA 230 provided, however, that the fran chise fee act would extend beyond its repeal date to the extent necessary for enforcement and collection of franchise fees due prior to its repeal.
On October 22, 1975, Federal-Mogul filed a petition with the Michigan Corporation Tax Appeal Board, appealing the denial of the request for refund. The Department of Treasury answered the petition on October 27, 1975. On or about June 18, 1976, Federal-Mogul filed with the appeal board a motion for summary judgment under GCR 1963, 117.2(3), for lack of a genuine issue of material fact such that the corporation was entitled to judgment as a matter of law.
Between 1975 and 1978, no further action was taken on the appeal. Extensive administrative changes occurred. 1975 PA 230 repealed the franchise fee act with the final levy of the franchise fee to occur on May 15, 1976. Section 2 of 1975 PA 230 provided that all cases pending before the Corporation Tax Appeal Board were to be transferred to the Michigan Tax Tribunal on December 31, 1977. On February 8, 1978, Federal-Mogul was notified that its petition had been transferred to the Michigan Tax Tribunal.
Meanwhile, certain legislative changes took place in response to corporate taxpayers’ claims for refunds of franchise fee overpayments. The end result was the passage of 1978 PA 392, which was "a legislative attempt to validate retroactively the Treasury Department’s consistent refusal to grant the requested refunds.” Armco Steel Corp v Dep’t of Treasury, 419 Mich 582, 586; 358 NW2d 839 (1984).
On or about May 25, 1979, Federal-Mogul, to gether with ten other corporate taxpayers, filed in the Ingham Circuit Court a declaratory judgment action and a complaint for superintending control over the Tax Tribunal and the Michigan Court of Claims concerning all claims for refund under the franchise fee act. The petitioners sought a declaration that 1978 PA 392 violated the equal protection provisions of US Const, Am XIV, and Const 1963, art 1, § 2. The petitioner taxpayers argued that the statute unfairly discriminated between two groups of taxpayers, those who did not pay their recomputed annual franchise fees because of the determination in Borden, Inc v State of Michigan, 43 Mich App 106; 204 NW2d 34 (1972), aff'd 391 Mich 495; 218 NW2d 667 (1974), that such fees were unlawfully recomputed and those taxpayers who did pay the fees, but, because of 1978 PA 392, would not receive a refund for their overpayment of the illegally determined recomputation.
Judge Robert Holmes Bell issued an order for superintending control determining that the refund claims pending in the Tax Tribunal and in the Court of Claims raised common questions of law, particularly the constitutional issue surrounding 1978 PA 392, which only the circuit court was jurisdictionally empowered to decide. On the merits of the petitioners’ claim, Judge Bell held that 1978 PA 392 constituted a denial of equal protection as to those petitioners who timely requested refunds for tax years prior to 1975. This Court and the Supreme Court affirmed. Armco Steel Corp v Dep’t of Treasury, 111 Mich App 426; 315 NW2d 158 (1981), aff'd 419 Mich 582; 358 NW2d 839 (1984).
On December 20, 1984, shortly after the Supreme Court had issued its decision in Armco, supra, the Department of Treasury issued thirty-two State of Michigan warrants to the corporate taxpayers involved in Armco, including Federal-Mogul. The warrants paid to each corporate taxpayer represented the claimed refund together with interest computed at the rate of five percent per annum pursuant to § 6455 of the Court of Claims Act, MCL 600.6455; MSA 27A.6455. Interest was paid from April 16, 1980, the date of the judgment issued by Judge Bell, through December 31, 1984. Federal-Mogul was issued a warrant in the amount of $250,058.50 representing the claimed refund of $202,398.02 and interest from April 16, 1980, through December 31, 1984. The payment was made to Federal-Mogul without prior consent or a settlement agreement between the parties and in the absence of any judgment which adjudicated the individual rights and liabilities of the parties to the refund.
On May 2, 1985, Federal-Mogul filed a motion in the Michigan Tax Tribunal to order payment of statutory interest. The motion asked for interest "on the judgment rendered pursuant to [Federal-Mogul’s] Complaint filed on October 22, 1975, or in the alternative, pursuant to [Federal-Mogul’s] June 18, 1975 claim for a refund.” The motion did not further identify the forum which issued the alleged judgment. The motion acknowledged the payment of $250,058.50 on December 20, 1984. Initially, Federal-Mogul claimed that interest should be paid at the rate of nine percent in accordance with the provisions of the Department of Revenue act. The Department of Treasury responded that the five percent rate of interest under the Court of Claims Act applied and that the provisions of the Department of Revenue act did not apply. The corporation countered that if the Department of Revenue act did not apply, then statutory interest under the Revised Judicature Act of six percent and twelve percent per annum would apply.
The Department of Treasury filed an answer asking that the motion be denied and alternatively asking the Tax Tribunal to order the return of interest paid because the franchise fee act never provided for interest. The Department of Treasury explained its payment of interest at five percent under the Court of Claims Act as follows:
In its decision affirming the lower courts [419 Mich 582] the Supreme court stated at page 594:
"When faced, as in this case, with a choice between securing that which is due under the law and upholding the constitutional requirements of uniformity and equality, the latter is to be preferred 'as the just and ultimate purpose of the law.’ ”
Therefore, under mandate of the Supreme Court, all claimants were paid interest in exactly the same manner. This would be especially true of Petitioner which was one of the petitioners in ARMCO, supra. Interest was paid in accordance with Section 6455 of the Michigan Court of Claims Act [MCL 600.6455; MSA 27A.6455], That section requires interest to be paid from date of judgment which in the case of ARMCO was April 16, 1980. Respondent paid the interest in accordance therewith.
On October 29, 1985, the tribunal issued an order sua sponte granting Federal-Mogul summary judgment on its refund petition of October . 22, 1975. The order also awarded interest under the provisions added to the Department of Revenue act by 1980 PA 162. The order directed the department to recompute interest under the Department of Revenue act at the rate of three-fourths of one percent per month (which yields a nine percent per annum rate). The order directed the department to compute interest beginning forty-five days after the corporation filed its refund claim on June 18, 1974, to the present. Finally, the order allowed the department to credit the interest that it had voluntarily but erroneously paid in December of 1984.
On appeal the Department of Treasury contends that the Michigan Tax Tribunal did not have jurisdiction to enter the October 29, 1985, order, that the tribunal abused its discretion in granting Federal-Mogul summary judgment sua sponte without a hearing, and that it unlawfully ordered the Department of Treasury to pay interest on the refund for the 1963-68 franchise fees under 1980 PA 162. Although we find that the Tax Tribunal had jurisdiction and the sua sponte order was not improper, we agree with the Department of Treasury’s final argument that the interest award was unlawful.
The Department of Treasury first contends that the Tax Tribunal had no jurisdiction since the circuit court never entered an order expressly dissolving its order for superintending control. Assuming, as the Department of Treasury asserts, that Judge Bell issued an order continuing the order for superintending control "until further order of this Court,” the language of that order as quoted by the department in its appellate brief indicates that the Tax Tribunal’s and Court of Claims’ actions would be held in abeyance only until a final judgment had been entered on the declaratory judgment action in circuit court. The language does not contemplate the entry of a separate and independent order expressly dissolving the stay of proceedings. Hence the Tax Tribunal’s orders were proper.
Nor do we agree with the department’s argument that the Tax Tribunal improperly awarded interest on a judgment which it did not enter. The department premises this argument on its assumption that the judge who heard the declaratory judgment action sat as both a circuit court judge and as a Court of Claims judge and that, as a result, the judgment was entered as a Court of Claims judgment. Therefore payment of interest in accordance with the Court of Claims Act, MCL 600.6455; MSA 27A.6455, was required.
We find that the judgment is clearly one of the circuit court and that there was no involvement of the Court of Claims. Further, the declaratory judgment action was not an adjudication on the merits of the individual refund claims of the corporations involved. Hence it cannot be relied upon by either party in this action as a basis for an award of interest. The department’s argument that the Tax Tribunal did not have jurisdiction fails.
The department’s contention that the sua sponte order of the Tax Tribunal was improper since it was entered without the benefit of a hearing must also fail. The administrative rules set out in 1979 AC, R 205.1101 et seq. govern the practice and procedure in all cases and proceedings before the tribunal. 1979 AC, R 205.1111(1). These administrative rules are called the "Tax Tribunal Rules.” Id. Where there is no applicable Tax Tribunal rule, the court rules and chapter 4 of 1969 PA 306, MCL 24.271 to 24.287; MSA 3.560(171) to 3.560(187), govern. 1979 AC, R 205.1111(3). Federal-Mogul properly notes that the Tax Tribunal rules provide in 1979 AC, R 205.1230(4) that oral argument is not allowed on motions, except on order of the tribunal.
We now address the department’s claim that the Tax Tribunal unlawfully ordered the department to pay interest on the refund for 1963-68 franchise fees under 1980 PA 162, the amendment to the Department of Revenue act, MCL 205.1 et seq.; MSA 7.657(1) et seq. The department contends that the amendment and the Department of Revenue act were inapplicable since the amendment, effective September 17, 1980, may only be given prospective effect and since the Supreme Court in Borden, supra, held the Department of Revenue act inapplicable to the administration of the franchise fee.
This issue is one of first impression. It requires this Court to carefully review the franchise fee act, the Department of Revenue act and the 1980 amendment to the Department of Revenue Act.
In Town & Country Dodge, Inc v Dep’t of Treasury, 420 Mich 226, 242; 362 NW2d 618 (1984), our Supreme Court defined interest as follows:
Interest is compensation allowed by law or fixed by the respective parties for the use or forbearance of money, "a charge for the loan or forbearance of money,” or a sum paid for the use of money, or for the delay in payment of money. Balch v Detroit Trust Co, 312 Mich 146, 152; 20 NW2d 138 (1945); Coon v Schlimme Dairy Co, 294 Mich 51, 56; 292 NW 560 (1940); Marion v Detroit, 284 Mich 476, 484; 280 NW 26 (1938); Drennan v Herzog, 56 Mich 467, 469; 23 NW 170 (1885). See also 47 CJS, Interest & Usury, § 3, pp 18-22.
It is well settled that the right to interest is purely statutory. Detroit v Detroit Police Officers Ass’n, 408 Mich 410; 294 NW2d 68 (1980), app dis 450 US 903; 101 S Ct 1337; 67 L Ed 2d 326 (1981); Fowler v Muskegon Co, 340 Mich 522; 65 NW2d 801 (1954). This Court has quoted 47 CJS, Interest, § 5, p 17, with approval: "[T]he legislature has the widest powers on the subject [of interest], and the will of the legislature controls except insofar as limitations are placed on this power by the organic law.” Davis v Howard, 14 Mich App 342, 344; 165 NW2d 505 (1968), lv den 382 Mich 754 (1969). Statutes which allow interest, being in derogation of the common law, must be strictly construed. Strauss v Elless Co, 245 Mich 558; 222 NW 752 (1929); Schwartz v Piper Aircraft Corp, 90 Mich App 324, 326; 282 NW2d 306, lv den 407 Mich 892 (1979).
In the absence of fraud, this Court’s review of a decision of the Tax Tribunal is limited to determining whether the tribunal made an error of law or adopted a wrong principle; the factual findings of the tribunal are final, provided that they are supported by competent, material and substantial evidence. Antisdale v City of Galesburg, 420 Mich 265, 277; 362 NW2d 632 (1984); Meadowlanes Limited Dividend Housing Ass’n v City of Holland, 156 Mich App 238, 245; 401 NW2d 620 (1986).
In awarding "prejudgment interest” to the corporation, the Tax Tribunal relied upon Wilson v Doehler-Jarvis Div of National Lead Co, 358 Mich 510; 100 NW2d 226 (1960). That reliance is misplaced and untenable within the context of an administrative proceeding in the Tax Tribunal. In Wilson, the petitioner filed a motion in circuit court seeking a judgment on a workmens’ compensation award which had been allowed by a hearing referee and affirmed on appeal to the Supreme Court. The petitioner’s motion sought a judgment and statutory interest on the award. The circuit court granted the judgment and interest at the requested rate, but did not allow interest from the requested date (i.e., the date of the decedent’s death). Id., pp 512-513. The Supreme Court held that, despite the lack of a provision for interest in either the workmens’ compensation award or the workmens’ compensation statute, a circuit court had jurisdiction to allow interest on the award where the equities warranted the award and the broad purposes of the workmens’ compensation act would be served thereby. Id., p 517. In so holding, the Court expressly overruled a contrary principle established in Fowler v Muskegon Co, supra.
In contrast to the powers of a circuit court, the powers of the Tax Tribunal are limited to those authorized by statute. MCL 205.731; MSA 7.650(31) describes the Tax Tribunal’s jurisdiction; MCL 205.732; MSA 7.650(32) describes the Tax Tribunal’s express powers. The Tax Tribunal does not have powers of equity. Wikman v City of Novi, 413 Mich 617, 646-649; 322 NW2d 103 (1982); Romulus City Treasurer v Wayne Co Drain Comm’r, 86 Mich App 663, 669-670; 273 NW2d 514 (1978), aff'd 413 Mich 728, 732-733; 322 NW2d 152 (1982). In short, the Tax Tribunal does not possess the power to balance the equities and award interest since it has no equitable powers.
The Tax Tribunal cited, but did not rely upon, a decision of the United States Court of Appeals for the Sixth Circuit argued by the corporation, Aluminum Co of America v Dep’t of Treasury of the State of Michigan, 522 F2d 1120 (CA 6, 1975). According to the Tax Tribunal, the decision is persuasive authority for the allowance of an interest award from the date that the corporation paid additional franchise fees, i.e., August 18, 1972. The corporation contends that the decision should govern the computation of interest in the event that this Court decides that the nine percent rate of interest under the Department of Revenue act does not apply.
In our opinion, Aluminum Co, supra, is readily distinguishable and offers no assistance to the issue of interest in this administrative proceeding. That case involved an action for declaratory and injunctive relief filed in federal district court from a redetermination of franchise fee liability. The court’s discussion of an award of interest was mere dicta since the court was not required to decide whether interest was or should be available in an administrative proceeding.
The Tax Tribunal found that the absence of an interest provision for a franchise fee refund claim under the franchise fee act required the application of §§ 31(1) and 23(2) of the Department of Revenue act. Significantly, the Tax Tribunal did not conclude that no interest should be awarded in the absence of an express authorization for interest under the franchise fee act. The Tax Tribunal’s reasoning is incorrect because, if an award of interest under the Department of Revenue act is to be made, the award should be based upon an affirmative showing in the statutory language that the Department of Revenue act applies or the award should be based upon an affirmative legislative intent that 1980 PA 162 applies to refund claims filed under the franchise fee act before 1975 and pending an administrative decision. In order to reach such an affirmative showing in the language or in the legislative intent, the existence and effect of 1975 PA 230 must be acknowledged and explained. This the Tax Tribunal did not do. We are unable to find any indication in the statutory history of either the Department of Revenue act or the franchise fee act which would suggest that 1975 PA 230 was no longer to have force and effect over refund claims such as the corporation’s claim in this case.
As noted earlier, § 10 of the franchise fee act makes no provision for interest on a claim for refund. A review of the two refund cases decided by this Court prior to the 1980 amendment suggests that no interest was awarded to those corporate taxpayers. St Clair-Macomb Consumers Cooperative, Inc v Dep’t of Treasury, 78 Mich App 287; 259 NW2d 462 (1977), lv den 402 Mich 869 (1978); Giffels Associates, Inc v Dep’t of Treasury, 81 Mich App 730; 265 NW2d 809, lv den 403 Mich 808 (1978).
The Department of Treasury has observed that in 1975 the Legislature added § 9a to the franchise fee act, 1975 PA 13, MCL 450.309a; MSA 21.210a, to allow for interest on deficiencies, but did not authorize an interest provision for the refund remedy authorized by § 10. After reviewing § 9a and the remaining text of 1975 PA 13 in the Public and Local Acts of the Legislature, we agree with the department’s observation.
In any event, as noted earlier, the Legislature specifically named the forum, i.e., the Tax Tribunal, and specifically stated that the franchise fee act would remain in effect for the collection and enforcement "of the payment of any fee, penalty, or interest due and payable under the [franchise fee] act for any period in which it was in effect prior to its repeal.” 1975 PA 230, §§ 2 and 3.
As noted by the Court in Borden, supra, p 506, the Department of Treasury was authorized by the Department of Revenue act to succeed "to the functions and responsibilities of the Michigan Corporation and Securities Commission 'over the enforcement, investigation and collection of past-due and delinquent corporate privilege and franchise fees and license fees of any nature’.” The specific statute, MCL 205.13(f); MSA 7.657(13)(f), provides:
(f) The commission shall also succeed to and is hereby vested with all of the powers, duties, functions, responsibilities and jurisdiction of the corporation and securities commission over the enforcement, investigation and collection of past due and delinquent corporate privilege and franchise fees and license fees of any nature. The corporation and securities commission shall, whenever requested by the department, report to said department the names of all delinquent corporations and delinquent licensees, and the department shall be charged with the collection of all fees and licenses covered in such reports.
Although the precise history of this provision is not clearly revealed in the statutory history, it appears that this provision was authorized either by the original enabling statute, 1941 PA 122, or by an amendment authorized by 1945 PA 103. Thus, the department was responsible for the enforcement and collection of past due and delinquent franchise fees as early as 1945 through 1975. In contrast, a claim of refund was handled by the Franchise Fee Division under § 10 of the franchise fee act.
In support of its claim that interest should not be allowed under the Department of Revenue act, the Department of Treasury points to Borden, supra, for the proposition that the Department of Revenue act does not apply to the administration of the franchise fee. We are not persuaded by this argument since Borden was decided in 1974, well before the administrative changes resulting from 1975 PA 230. Thus, any language in Borden, supra, would not reflect the more significant changes in the administration of the franchise fee.
We next turn to a review of the 1980 amendment to the Department of Revenue act. The Tax Tribunal specifically relied upon § 20, § 30(1), § 30(3), and § 23(2) when it ordered the payment of interest under the Department of Revenue act. Section 20 provides:
Unless otherwise provided by specific authority in a taxing statute administered by the department, all taxes shall be subject to the procedures of administration, audit, assessment, interest, penalty, and appeal provided in sections 21 to 30.
The statutory history of § 20 is described in Michigan Statutes Annotated as follows:
History. Added by Pub Acts 1980, No. 162, imd eff June 18, which contained sections 3 and 4 as amended by Act No. 138 of 1981, imd eff October 29, which contained a section 2 providing: "This amendatory act shall take effect January 1, 1981.” These sections now provide, "Section 3. Sections 7, 8, and 9 of Act No. 122 of the Public Acts of 1941, as amended, being sections 205.7, 205.8, and 205.9 of the Compiled Laws of 1970, are repealed effective September 30, 1982.
"Section 4. (1) This amendatory act shall take effect September 16, 1980. All new appeals from an assessment, decision or order of the department shall be made to the tax tribunal effective September 16, 1980. An appeal to the state board of tax appeals filed prior to September 16, 1980 shall proceed as follows:
"(a) A matter which has not been heard, and submitted to the board for decision, on or before January 1, 1982 shall be transferred to the tax tribunal as of January 1, 1982.
"(b) A matter which has been heard, and submitted to the board for decision, on or before January 1, 1982 shall be completed and a decision issued before September 30, 1982.
"(2) An appeal having been filed in any court of record of this state prior to January 1, 1981 shall proceed in those courts until a decision is rendered. Appeals filed after January 1, 1981 shall be in accordance with this amendatory act.”
Sections 30(1) and 30(3) provide:
Sec. 30. (1) The department shall credit or refund all overpayment of taxes, all taxes, penalties, and interest erroneously assessed and collected, and all taxes, penalties, and interest that are found unjustly assessed, excessive in amount, or wrongfully collected with applicable interest at the rate established in section 23(2).
(3) A refund shall be certified to the state disbursing authority who shall pay the amount out of the proceeds of the tax in accordance with the accounting laws of the state. Interest at the rate established in section 23(2) shall be added to the refund commencing 45 days after the claim is filed, or 45 days after the date established by law for the filing of the return, whichever is later.
The rate of interest is provided for in § 23(2) as follows:
(2) If the amount paid is less than the amount which should have been paid, the deficiency, together with interest at the rate of ¾ of 1% per month from the time the tax was due, and until paid, shall become due and payable after notice and conference as provided in this act. A deficiency in an estimated payment as may be required by a tax statute administered under this act shall be treated in the same manner as a tax due and shall be subject to the same interest of ¾ of 1% from the time the payment was due, until paid.
The statutory history for §§ 30(1) and 23(2) is the same statutory history as described above for § 20.
House Bill 4718 was enrolled as 1980 PA 162. The legislative analysis indicates that the bill’s purpose was to establish a uniform series of procedures under which the department would collect money, provide for appeals, and set up a schedule for penalties, fines, and the like. It notes that House Bill 4718 contained essentially the same enforcement and administrative provisions as the Single Business Tax Act. Id. The legislative analysis describes the bill as an effort to codify enforcement and administrative provisions for eight taxing statutes. Id. Seven of the eight are named and are as follows: the income, intangibles, severance, cigarette, use, sales, and motor fuel taxes. Id. Neither the legislative analysis nor the language of the 1980 amendment specifically names the franchise fee as one of the taxes to be covered by House Bill 4718.
Further, there is no reference to 1975 PA 230 in either the legislative analysis or in 1980 PA 162. As noted earlier, § 3 of 1975 PA 230 provided that the franchise fee act would remain in effect "for the collection and enforcement of the payment of any fee, penalty, or interest due and payable under the [franchise fee] act for any period in which it was in effect prior to its repeal.” Prior to the enactment of 1980 PA 162, it was understood that the provisions of the franchise fee act remained in effect for those proceedings involving franchise fees paid before the repeal. Giffels Associates, Inc, supra, p 732, n 1.
Thus, the question arises whether the Legislature intended to maintain the refund remedy under the franchise fee act despite the purported consolidation of enforcement efforts in 1980 PA 162 or whether the Legislature intended to repeal or override § 3 of 1975 PA 230. In light of the lack of clarity surrounding 1980 PA 162 as concerns the franchise fee, we conclude that § 3 of 1975 PA 230 retains force and effect and governs the handling of the refund claim in this case. Since the franchise fee act did not authorize interest on a refund and, further, since no judgment of either the Court of Claims or of a circuit court exists in this case, we conclude that Federal-Mogul is not entitled to any interest on the refund claim.
Although we make this conclusion, we will not remand for entry of an order compelling Federal-Mogul to return the sum of $47,660.48, which represents the interest paid voluntarily by the department under the Court of Claims Act at the rate of five percent per annum. Instead, we choose to leave the parties as they are and treat the payment of $47,660.48 in interest as a settlement figure voluntarily paid by the department in order to bring an end to the dispute. Admittedly, the department paid the money without a settlement agreement between the parties. However, the money was paid before the Tax Tribunal formally adjudicated Federal-Mogul’s right to a refund.
In summary, the tribunal’s award of interest under 1980 PA 162, an amendment to the Department of Revenue act, is not legally supportable. Such an award is not supported by the legislative changes to the franchise fee act or by the legislative history of 1980 PA 162. The legal bases given by the Tax Tribunal for its award are legally untenable. If the Tax Tribunal has authority to award interest, it must be a power authorized by statute. The Tax Tribunal does not have equitable powers to award interest, unlike a circuit court as in Wilson, supra. The Legislature has never authorized interest for a refund claim under the franchise fee act, and it has not shown an affirmative intent to do so under the Department of Revenue act. Although it may be unfair to allow the department to have held onto the wrongfully collected franchise fees (dating back to 1972) without requiring some form of interest payment for the loss of the use of that money, it is for the Legislature and not the courts to authorize such an award. We conclude that there is no statutory or other authority to allow an award of interest on Federal-Mogul’s refund claim. Nonetheless, we would not require Federal-Mogul to return the payment of $47,660.48 given by the department as interest under the Court of Claims Act at five percent. Instead, we will treat the payment as a sum voluntarily paid in furtherance of settlement of this litigation.
Finally, Federal-Mogul contends in its cross-appeal that it is entitled to additional interest on the refund for the 1963-1968 franchise fees .in accordance with the statutory interest provisions of §6013 of the rja, MCL 600.6013(1), (2); MSA 27A.6013(3), (2). Those sections provide:
(1) Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section.
(2) For complaints filed before June 1, 1980, in an action involving other than a written instrument having a rate of interest exceeding 6% per year, the interest on the judgment shall be calculated from the date of filing the complaint to June 1, 1980 at the rate of 6% per year and on and after June 1, 1980 to the date of satisfaction of the judgment at the rate of 12% per year compounded annually.
We find that these provisions do not apply to an administrative proceeding. The rja, adopted in 1961, applies only to the organization and jurisdic tion of the courts and to civil procedure. City of Birmingham v Oakland Co, 49 Mich App 299, 306-307; 212 NW2d 51 (1973). Since this is an administrative proceeding before the Tax Tribunal, the rja does not apply.
Moreover, there is a conspicuous absence of a money judgment in this case. A money judgment has been defined as one which adjudges the payment of a sum of money, as distinguished from an order directing an act to be done or property to be restored or transferred. Stewart v Isbell, 155 Mich App 65, 80; 399 NW2d 440 (1986); Moore v Carney, 84 Mich App 399, 404; 269 NW2d 614 (1978). Indeed, a judgment which may involve money but is essentially part of an equitable remedy in a minority shareholder’s action has been deemed not to be a "money judgment” for purposes of the statute. Moore, supra.
In this case there is no order or judgment which adjudges the payment of a sum of money. The only adjudication of the parties’ rights and liabilities with respect to the refund claim is the decision of the Tax Tribunal which was adjudicated well after the refund was voluntarily paid by the department. There is presently no dispute whatsoever that a refund was owed to Federal-Mogul. There is no dispute that the refund has been paid. The only dispute concerns the amount of interest, if any, that should be paid. Without a money judgment in this case, it is abundantly clear that § 6013 of the rja cannot apply.
A third reason precluding application of § 6013 to this case is that it is not a civil action. This Court has held that the provisions for statutory interest do not apply to an arbitration award because arbitration proceedings are not the equivalent of a civil action. Moultrie v Detroit Automobile Inter-Ins Exchange, 123 Mich App 403, 406- 407; 333 NW2d 298 (1983). By extension, an administrative proceeding is not the equivalent of a civil action.
Since interest may not be awarded under § 6013 of the rja, Federal-Mogul’s appeal is meritless. Since interest may be awarded under neither the franchise fee act nor the Department of Revenue act, the Tax Tribunal’s judgment awarding Federal-Mogul interest must be vacated.
Vacated in accordance with this opinion.
In Borden, Inc v Dep’t of Treasury, 43 Mich App 106; 204 NW2d 34 (1972), afFd 391 Mich 495; 218 NW2d 667 (1974), an equally divided Supreme Court affirmed the decision of this Court, holding that when the Franchise Fee Division receives the annual report of a corporation and computes the franchise fee, it exhausts its authority to recompute the fee even if it subsequently obtains information that the department regards as more accurate. Justice Levin’s opinion for affirmance noted that the corporate franchise fee is initially self-assessed. Borden, supra, 391 Mich 495, 504 n 4. It further noted that the statute contained no language expressly or impliedly authorizing field audits. Borden, supra, p 505. See also Clark Equipment Co v Dep’t of Treasury, Revenue Div, 394 Mich 396, 399; 230 NW2d 548 (1975).
In the instant case Federal-Mogul noted that the Department of Treasury had examined Federal-Mogul’s annual reports, had found that the reports complied with all the statutory requirements, had accepted each of the reports, and had forwarded copies to the county clerk for filing before the department notified Federal-Mogul of further liability in a letter of March 7, 1969.
For the history and nature of the franchise fee, see Armco Steel Corp v Dep’t of Treasury, 419 Mich 582, 586 n 2; 358 NW2d 839 (1984).
The legislative and administrative responses to corporate taxpayers’ claims for refunds of franchise fee overpayments is best summarized in Armco Steel Corp, supra, pp 588-589:
The legislative response to the Borden [n 1 supra,] and Clark [Equipment Co v Dep’t of Treasury, 394 Mich 396; 230 NW2d 548 (1975)] decisions was the passage of 1975 PA 13, amending §§ 9 and 10 of the franchise fee act. MCL 450.309-450.310; MSA 21.210-21.210(1). These amendments, in pertinent part, authorized the division to audit corporations subject to the franchise fee and provided a four-year limitations period within which deficiencies could be assessed. However, in International Business Machines Corp v Dep’t of Treasury, 75 Mich App 604; 255 NW2d 702 (1977), lv den 401 Mich 816 (1977), the Court held, that 1975 PA 13 would be given prospective effect only, finding no indication in the act of any legislative intent to make the act retroactive. Therefore, for those tax years' preceding the passage of 1975 PA 13, the rule of Borden and Clark Equipment remained controlling. Acquiescing in these decisions only in part, the division cancelled or rescinded those deficiencies which remained unpaid, but refused to grant refunds to those corporate taxpayers who had paid their assessments and later sought repayment. Relying upon Borden and Clark Equipment; two Court of Appeals panels subsequently affirmed judgments awarding corporate litigants refunds of deficiencies paid by them following unauthorized audits and recomputations. St Clair-Macomb Consumers Cooperative, Inc v Dep’t of Treasury, 78 Mich App 287; 259 NW2d 462 (1977), lv den 402 Mich 869 (1978); Giffels Associates, Inc v Dep’t of Treasury’, 81 Mich App 730; 265 NW2d 809 (1978), lv den 403 Mich 808 (1978). Faced with a potential loss to the state treasury of up to $35 million in taxpayer refund actions, the Treasury Department again sought remedial legislation. The Legislature responded with the passage of 1978 PA 392, the subject of these appeals.
4 Although the state treasury faced a loss of up to $35 million at the time Act 392 was passed, the statute of limitations would now bar many refund actions that were originally included within this estimate. Therefore, refund actions pending currently involve less than $2.5 million.
MCL 450.321; MSA 21.213(1):
• All audits performed by or at the direction of the department of treasury for the purpose of determining liability for a corporate franchise fee levied pursuant to former Act No. 85 of the Public Acts of 1921, and all payments received and refunds made on the basis of those audits before the repeal of former Act No. 85 of the Public Acts of 1921 are declared to be valid and to have been in fulfillment of the legislative purpose to provide for fair administration and enforcement of that act.
The Court of Claims became a function of the Ingham Circuit Court pursuant to 1978 PA 164, MCL 600.6404; MSA 27A.6404, effective January 1, 1979. The judges of the circuit court were given full jurisdiction over the Court of Claims. Id.
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Per Curiam.
John Dihle appeals as of right from an October 10, 1985, order by the Wayne County Probate Court, granting the successor personal representative’s motion for entry of a final order. The estate cross-appeals, claiming that the instant appeal is vexatious. The estate seeks costs and damages it has incurred in defending the appeal, including attorney fees. MCR 7.216(C).
Willard Dihle died intestate on December 5, 1979. He was survived by five children, appellant, Gerald, Norman, William, and Carol. Carol is mentally incompetent and her interests were safeguarded by her legal guardian or guardian ad litem throughout the proceedings below.
Appellant, being the eldest child of the deceased, was appointed personal representative of the estate. On September 21, 1979, he filed an inventory indicating an estate value of $150,461. Appellant served as personal representative for over 3½ years until he was removed from that position pursuant to a motion brought by Gerald and Norman.
During appellant’s tenure as personal represen tative, he filed only one annual account with the probate court. That account indicated an estate value of $148,360.61 and was filed on May 12, 1981. When he served as personal representative, appellant made several unauthorized distributions to his three brothers. The amounts of the unauthorized distributions are not in dispute. William received $19,620.06, Gerald received $12,500 and Norman received $16,290.38. Appellant asserts that these distributions were made at times when there was insufficient cash in the estate to cover the payments. In order to supply the necessary cash, defendant contends that he deposited $41,000 of personal funds into the estate.
Appellant’s brothers did not dispute below that appellant commingled personal funds with the funds of the estate. However, they did initially contest the amount commingled.
In 1982, while appellant still served as personal representative, appellant demanded that Norman and Gerald repay to the estate the amounts they had received plus interest. When Norman and Gerald responded that the monies they had received were advancements, not loans, and that the estate was not entitled to interest, appellant apparently refused to close the estate. Appellant’s refusal to close the estate appears to be the predominant reason Gerald and Norman moved the probate court to discharge appellant from his duties as personal representative.
On June 9, 1983, the probate court granted the motion and appointed an independent successor representative.
In a petition dated August 22, 1984, the successor representative petitioned for an order allowing a final account. In the motion, the successor representative averred that he had reconstructed and verified every receipt, expense and advancement since the estate was opened. The successor representative acknowledged that the estate possessed $20,295.07 in excess assets and conceded that this amount should be disbursed to appellant since all parties agreed appellant had injected personal funds into the estate.
Another aspect of the petition to allow the final account was that it also requested the court to authorize the fiduciary fee and attorney fee as itemized in an attached document. More importantly, the last clause in paragraph 19 requested that the fiduciary fee and attorney fee be allowed "as payable from the referenced excess monies currently in the possession of the estate.” The "excess” monies to which the petition referred was the approximately $20,000 which the successor representative conceded were personal funds appellant had injected into the estate. The petition did not set forth any reason why the fiduciary and attorney fees should be assessed solely against appellant. This unusual request was not drawn to the court’s attention in either the title to the petition, its prayer, or in any other part of the petition. The amount of requested fees was $7,000.
The estate’s petition was heard on December 5, 1984. At that time, Richard Kasaba, who had been the estate’s attorney during the appellant’s tenure as representative, withdrew as counsel for appellant and Gerald Goulet entered his appearance on appellant’s behalf. During the hearing, Mr. Goulet stated, "My client indicated to me that he objects to the account,” and later stated, "There is an amount of $40,000 that he feels is owed to him.” At the hearing, none of the parties mentioned the fact that the proposed account assessed the fiduciary fee of the successor representative and attorney solely against the appellant. The probate court ruled that it would adopt the final account as proposed.
Thereafter, appellant moved for reconsideration. A hearing on the motion was conducted on April 17, 1985. At that time appellant asserted that he had advanced $41,000 to the estate and that only $20,000 had been accounted for. Appellant requested that an independent audit be performed. The probate court granted appellant’s motion on the condition that, if the independent audit disclosed a variance of less than five percent, appellant would be assessed the costs of the audit. At the rehearing, Mr. Goulet did not mention or raise the issue that the proposed final account which the court had initially accepted assessed the fees of the second fiduciary and attorney solely against appellant. Nor was an issue raised on the lack of a hearing to determine the reasonableness of the requested fees.
The independent audit was completed on June 28, 1985. It indicated cash receipts "from or on account of [appellant]” were $43,515. There is no explanation in the record why this amount is higher than the $41,000 appellant claimed he had injected into the estate. The audit concluded that appellant had already received $7,190 in cash disbursements and $4,350 in a disbursement of stock. When these amounts were subtracted from $43,515 in cash receipts, the audit concluded a gross balance of $31,975 was due appellant. However, the audit then charged appellant for all assets which had been in the estate at some time during appellant’s tenure as representative and for which appellant could not account. Six hundred sixty-two dollars in interest and $2,869 in stock dividends were unaccounted for. There had also been $160 cash on hand, $2,609 in a savings account, and personal effects valued at $1,921 which were listed in the original inventory for which appellant could not account. These items, totalling $8,221, were also charged against appellant. The audit concluded that the net amount due appellant was $23,754, or $3,458.93 higher than the amount the successor representative had concluded was due appellant. In the "Notes for the Court,” the audit stated, "The personal representative charges his fees of $7,000 to [appellant] and not as an estate expense.”
Four days after the date appearing on the independent audit, a hearing was conducted on a petition by the estate for disbursement of funds. Appellant’s counsel was late for that hearing. The hearing was finally commenced without his presence. During his absence, the attorney for the three other brothers argued that the independent account demonstrated that appellant "stole at least $8,000 from the estate” and that any discrepancy between the proposed final account and the independent audit were the results of appellant’s fraud. When appellant’s counsel appeared, he stated that he had just been handed a copy of the independent audit "two minutes ago’-’ and had not been able to examine it. However, appellant’s counsel stated a little later:
The audit of the cpa firm said $23,754.00 owed to my client.
So, I really don’t have any complaint as far as the amount. It is an accurate amount. They are a respectable cpa firm and I would assume that the $23,754.00 is the correct amount.
Upon that statement, the trial court ruled appellant was entitled to the $23,754 which the independent audit had determined were excess funds in the estate. However, contrary to his earlier ruling that costs of the independent audit would be assessed only if there was less than a five percent variance, the probate court also ordered, without explanation, that appellant bear the costs of the audit. It appears that the cost of the independent audit was $3,950.
On July 31, 1985, appellant filed two motions. One motion was to have the cost of the independent audit paid by the estate. The second motion in its heading requested distribution of estate assets, but in essence was a motion for another rehearing. It requested that appellant receive credit for $43,515 which appellant had deposited with the estate plus compound interest. However, the motion also acknowledged that appellant had already withdrawn $10,044.48 from the estate. Appellant also asserted that the savings account he believed contained $2,609 at the time of the initial inventory he later discovered was nonexistent. As to the allegedly unaccounted-for personal assets valued at $1,921, appellant contended that they were in his attic and available if the successor representative wanted possession. On these grounds, appellant argued that the independent audit should not have deducted the $2,609 and $1,921 from the amounts due him. However, these allegations implied that appellant was conceding that the successor representative had the right to deduct the other assets for which he could not account. Thus, from appellant’s motion, it was unclear whether appellant was claiming $43,515 plus interest, or $43,515 minus the $10,044.48 he had acknowledged he had already received plus interest, or $43,515 minus the $10,044.48 and minus the unaccounted-for assets which he did not contest. The "Conclusion” to the motion presented yet another formula:
Now wherefore, after review of the matter, this Court should order the Attorney for the Personal Representative, to re-compute the amount due and owing to John Dihle under the amount due and owing from the estate to John Dihle, by computing interest on $43,000.00, and by adding the costs of the personal effects and the non-existent Manufacturers Bank account, due to John Dihle.
The motion did not request an evidentiary hearing.
On September 11, 1985, an order effecting the court’s July 2, 1985, bench ruling was entered. It ordered that the court’s order of December, 1984, be modified and that the sum due appellant be increased $3,458.93. The order also provided that the costs of the independent audit be deducted from appellant’s share of the estate. The December, 1984, order which was modified adopted the proposed final account. The net effect of modifying the previous order (which in turn adopted the proposed final account) was to continue to charge appellant with the $7,000 fees of the successor representative and attorney.
On September 25, 1985, a hearing was conducted on appellant’s two motions. At the hearing, appellant’s counsel reminded the court that it had initially ruled that appellant would only be required to pay the cost of the independent audit if the variance which was discovered was less than ten percent.
Also at the hearing, appellant’s counsel, for the first time, brought to the court’s attention that the proposed final account assessed the fiduciary and attorney fee of $7,000 solely against appellant. Evidently, appellant’s counsel discovered this fact from the section entitled "Notes to the Court” in the independent audit. While appellant’s counsel brought this fact to the court’s attention during the hearing, he never filed a pleading seeking modification.
The attorney for the brothers responded that it was the prayer of the estate’s attorney that the fiduciary and attorney fees be allowed against appellant for his mishandling of the estate as personal representative, that the assessment was in the proposed final account, and that the court "allowed that account as stated.” The attorney for the estate argued that appellant had not pled an objection to his fees being assessed solely against appellant and asserted that the issue was not properly before the court. After further argument and after appellant himself made a statement on the record, which the court did not allow him to finish, the court took the matter under advisement. On October 16, 1985, the court entered an order denying both motions without explanation.
On appeal, despite issues which it appears could have been raised, appellant’s counsel has elected to contest only the failure of the probate court to order an evidentiary hearing. The relief appellant seeks is a remand. Appellant’s counsel asserts he demanded a hearing but the court refused and that a hearing on appellant’s "claim” was required pursuant to MCL 708.2; MSA 27.3178(414). It is asserted that a remand is necessary to afford appellant the opportunity to verify appellant’s allegations as to the "loans to the heirs.”
We first note, contrary to the assertion of appellant’s counsel, that no request for an evidentiary hearing was ever made. Second, appellant never ’filed a claim with the estate as that term is used in MCR 5.706, formerly PCR 5.706. Third, we note that, even if defendant had filed such a claim, the statute that counsel cited for authority was repealed by 1978 PA 642, effective July 1, 1979. Fourth, appellant asserts only that a remand is necessary to determine the amount of the "loans.” This fact no longer appears to be in dispute. Neither the estate nor appellant’s heirs have disputed the finding of the independent auditor that appellant injected $43,515 into the estate. Noticeably absent from the appellant’s brief is any assertion that an evidentiary hearing is necessary to determine questions which appear to remain in dispute, for example, whether the savings account which was purported to contain $2,609 did in fact exist.
In the instant case, appellant had ample opportunity to request an evidentiary hearing below and did not do so. We would loathe a remand in light of the number of times appellant’s counsel appeared before the probate court and never made or pled such a request and never tendered testimony or documentary evidence and in light of the number of years the administration of the estate has dragged on without resolution. While appellant twice moved for rehearings» the hearings on the motions were conducted informally. All parties appeared satisfied to rely upon the unsworn factual assertions of their legal representatives.
We conclude that appellant has not preserved the issue he now attempts to raise. Even if the issue had been preserved, for the reasons stated above, it is without merit.
More troublesome is the estate’s cross-appeal alleging vexatious appeal. MCR 7.216(C) provides:
(1) The Court of Appeals may, on its own initiative or the motion of any party, assess actual and punitive damages, or take other disciplinary action when it determines that an appeal or any of the proceedings in an appeal was vexatious because
(a) the appeal was taken for purposes of hindrance or delay or without any reasonable basis for belief that there was a meritorious issue to be determined on appeal; or
(b) a pleading, motion, argument, brief, document, or record filed in the case or any testimony presented in the case was grossly lacking in the requirements of propriety, violated court rules, or grossly disregarded the requirements of a fair presentation of the issues to the court.
(2) Damages may not exceed actual damages and expenses incurred by the opposing party because of the vexatious appeal or proceeding, including reasonable attorney fees, and punitive damages in an added amount not exceeding the actual damages. The court may remand the case to the trial court or tribunal for a determination of actual damages.
We have concluded that the issue raised on appeal is totally without merit. We also note that appellant’s counsel’s brief on appeal is sadly lack ing. Two aspects of the briefs deficiencies have already been mentioned, the factual misstatement that an evidentiary hearing was demanded and the fact that the statute upon which appellant relies was effectively repealed seven years prior to the filing of the brief. Also, appellant’s counsel in his brief cites to cases without reference to the reporters in which they are to be found or the year in which they were decided. Other defects, minor in nature, include numerous misspellings and typographical errors.
It is also relevant to our disposition that appellant’s counsel has failed to raise significant issues on his client’s behalf. Was the $7,000 fee of the successor representative and attorney properly assessed against appellant? Was the $3,950 cost of the independent audit properly charged against defendant? May a former personal representative be held personally and absolutely liable for assets of an estate which the successor representative determines cannot be accounted for?
In the instant case, it appears that issues which merited appellate review could have been raised and were not. Instead, an issue devoid of merit was raised. In such a situation, we are disinclined to assess damages for vexatious appeal against appellant; appellant has already suffered harm by the manner his appeal has been prosecuted in that full review has been lost.
However, we do award the estate costs pursuant to MCR 7.219. These costs are to be taxed personally against Gerald Goulet, a remedy which MCR 7.219(1) expressly authorizes.
Affirmed.
The estate asserts in its appellate brief that over $400,000 passed through the estate during appellant’s tenure.
In the same section, the independent auditor noted a discrepancy between the initial annual account prepared by appellant when he was representative and the final account prepared by the successor representative. In the former, the $2,000 fee appellant collected as representative was charged as an estate expense. In the latter, it was charged as a partial distribution of appellant’s share of his inheritance. The notes do not indicate how the fee was treated in the independent audit, i.e., whether it was listed as part of the $7,190 appellant was to have received as cash disbursement.
Appellant’s counsel misstated the court’s earlier bench ruling. The court had earlier held that costs would be assessed against appellant only if the variance was less than five percent.
While appellant’s counsel has consistently pointed to the cancelled checks evidencing the unauthorized advances, these checks are not proof of the amount appellant deposited with the estate to fund the advances. Comparing the total of the advances with the $41,000 (or $43,515) which appellant alleges he deposited with the estate, it is evident that the advances were not totally funded by appellant.
We express no opinion how such issues would be decided if they had been raised. Issues are best resolved when tested by adversarial briefs. | [
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ON REHEARING
Before: M. J. Kelly, P.J., and Sawyer and M. E. Knoblock, JJ.
M. J. Kelly, P.J.
The facts of this case are set forth at 159 Mich App 632; 406 NW2d 893 (1987) and need not be repeated here. We have granted defendant Jonathan P. Doyle’s motion for rehearing in order to reconsider our prior ruling on the authority of the Genesee Circuit Court to dismiss the Genesee County Prosecutor’s office from prosecuting charges pending against defendant Doyle in district court. Upon reconsideration we are persuaded that we erred, and we reverse our earlier holding on this question only.
We now conclude that the Genesee Circuit Court had authority to disqualify the Genesee County Prosecutor’s office from performing its duties in any district court within the county with regard to the prosecution of defendant Doyle. MCL 49.160(2); MSA 5.758(2) expressly provides:
If the prosecuting attorney of a county is disqualified by reason of conflict of interest or is otherwise unable to attend to the duties of the office, the circuit court for that county, upon finding to that effect by the court, may appoint an attorney at law as a special prosecuting attorney to perform the duties of the prosecuting attorney in the probate court, the district court, or any other court within the county in any matter in which the prosecuting attorney is disqualified or until such time as the prosecuting attorney is able to serve.
See also, In re Petition for Appointment of Special Prosecutor, 122 Mich App 632; 332 NW2d 550 (1983). On the basis of this authority, we reinstate that portion of the trial court’s order disqualifying the Genesee County Prosecutor’s office from prosecuting charges against defendant Jonathan Doyle as to the nine other drug charges which were then pending against defendant Doyle in Genesee County district courts. | [
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Per Curiam.
On December 26, 1984, the Court of Claims entered judgment in the amount of $590,260 in favor of plaintiff in plaintiffs product liability suit against defendant, arising out of injuries sustained by plaintiff as a result of a smallpox vaccination he received in 1963. Defendant appeals as of right.
Plaintiff was born on July 29, 1962. In the next year and a half, plaintiff developed various infections, requiring treatment. The first of these treatments occurred April 28, 1963, when he entered McLaren Hospital in Flint with bronchitis. Plaintiff was hospitalized for twenty-one days and had a fever for the first seven days. Plaintiff’s family physician advised plaintiff’s parents not to have plaintiff immunized against any diseases until he was feeling better. On June 3, 1963, plaintiff was treated for a cold and sore throat. On June 17, 1963, plaintiff was given medication for a respiratory tract infection. On June 22, 1963, plaintiff was treated for otitis media, an ear infection, and received treatment for the ailment again on July 26, 1963. On August 10, 1963, plaintiff was treated for an upper respiratory infection. Plaintiff wqs last seen on August 22, 1963, but it is not known whether a diagnosis was made at that time.
Plaintiff remained apparently healthy until October 22, 1963, when his mother took him to the Genesee County Health Department for a smallpox vaccination. The vaccine was manufactured and distributed by defendant. Plaintiff had been vaccinated for dtp and polio in January, February and March, 1963.
According to plaintiff’s mother, a few weeks after the smallpox vaccination a scab formed and then fell off. However, a few days later another scab formed and plaintiff developed a red rash. Plaintiffs mother called the county health department and was told to place a plastic shield over the vaccination spot. A few days later, plaintiff started to run a temperature, and on December 22,
1963, was admitted to McLaren Hospital. Plaintiff was admitted with otitis media and tracheo bronchitis. On the tenth day of plaintiffs hospitalization, his parotid glands became swollen and doctors believed that he had the mumps. Also on the tenth day, plaintiffs vaccination site was first mentioned on his chart—it was noted that the vaccination was "still active.”
After three weeks in McLaren Hospital, plaintiff was transferred to Hurley Hospital’s isolation unit. On January 22, 1964, plaintiff was diagnosed as having agammaglobulinemia, which is an immune deficiency. Children with immune deficiencies like agammaglobulinemia should not be vaccinated for smallpox, as they cannot put up an adequate defense against the smallpox vaccine which itself contains a live virus. Frequent infections are a symptom of agammaglobulinemia. Because the nurses who vaccinated plaintiff did not know that plaintiff had agammaglobulinemia, plaintiff was vaccinated. He developed generalized vaccinia, which is the spread of the vaccinia virus throughout the whole body, and vaccinia necrosum, which is the death of tissue caused by the progressive vaccinia. Plaintiff was transferred to the University of Colorado Medical Center on January 24, 1964, where he was treated by Dr. C. Henry Kempe, an expert on complications resulting from smallpox vaccinations, and by Dr. Vincent Fuljin-iti. Drs. Kempe and Fuljiniti determined that plaintiff suffered from agammaglobulinemia.
Plaintiff’s left arm had become swollen while still in Flint, and bumps appeared on his nose. Before going to Colorado, plaintiff’s vaccination spot had grown to the size of a fifty-cent piece. In Colorado, the spot continued to grow and scabs formed over most of his body. Plaintiff’s left arm continued to swell and eventually turned black and had to be amputated. A few weeks later, his left shoulder was amputated. Much of plaintiff’s face and body was left scarred.
On January 23, 1979, plaintiff filed suit against defendant. Plaintiff alleged that defendant was liable for his injuries because defendant failed to include in its package insert accompanying the smallpox vaccine a warning that children with immune deficiencies or chronic infections should not be immunized with the vaccine. Plaintiff claimed that, had such a warning been provided, the nurses who immunized plaintiff would have been alerted to ask plaintiff’s mother whether plaintiff suffered from an immune deficiency or had had many infections. Defendant filed a motion for summary judgment, alleging it was immune from suit under the doctrine of governmental immunity. The court denied the motion, finding that when plaintiff filed suit defendant was not covered by common-law or statutory governmental immunity. The court based its decision on Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), in which common-law governmental immunity was abrogated.
The case went to trial without a jury. On November 19, 1984, the court issued its findings of fact and conclusions of law. The court found that defendant was negligent in failing to warn of the dangers of immunizing an immune-deficient child and that defendant’s negligence was a proximate cause of plaintiff’s injuries. On December 26, 1984, the court entered judgment in favor of plaintiff in the amount of $814,620. This amount was reduced by $224,360, which was the amount of a settlement between plaintiff and Genesee County. The final judgment was thus $590,260.
On appeal, defendant first claims that the court erred in ruling that defendant was not covered by governmental immunity. Defendant argues that Pittman should not be applied to cases which were filed after Pittman was decided, but in which the cause of action accrued before such date. Wé disagree.
In Pittman, the Supreme Court abrogated the common-law defense of state governmental immunity. The Court further held that "[t]he holding we announce today is prospective, with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of governmental immunity had been made and preserved.” Pittman, supra, p 50. The Court cited Bricker v Green, 313 Mich 218; 21 NW2d 105 (1946), in which the Court held that its new rule abrogating imputed negligence would be applied to "pending and future cases.” Bricker, supra, p 236. Neither the Pittman Court nor the Bricker Court addressed the issue of whether "future cases” included cases commenced after the date of its decision whose causes of action accrued before the date of its decision. We believe that the trial court’s conclusion that Pittman applies to deprive defendant of the defense of governmental immunity is correct.
In analyzing the issue whether Pittman operates to deprive defendant of its defense, it is helpful to examine previous cases in which our Supreme Court has decided the application of new rules of law. In Murray v Beyer Memorial Hospital, 409 Mich 217; 293 NW2d 341 (1980), the Court deter mined the application of Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978). The Court in Parker v Highland Park had held that municipally owned general hospitals did not enjoy governmental immunity. The Murray Court held:
[T]he rule of Parker is to be applied to all cases pending on December 27, 1978, in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date. See Placek v Sterling Heights, 405 Mich 638, 662-668; 275 NW2d 511 (1979); Pittman v City of Taylor, 398 Mich 41, 50; 247 NW2d 512 (1976); Daley v LaCroix, 384 Mich 4, 14; 179 NW2d 390 (1970); Bricker v Green, 313 Mich 218, 236; 21 NW2d 105 (1946). [Murray, supra, pp 221-222.]
In Placek, supra, the Court adopted the doctrine of comparative negligence and then determined to what extent the new rule should be applied. The Court first noted that there are three main categories of application:
A new rule can be (1) made applicable to all cases in which a cause of action has accrued and which are still lawfully pending and all fixture cases, (2) made applicable to the case at bar and all future cases or (3) made to exclude the case at bar but be made applicable to all cases to be filed hereafter or after an arbitrary control date specified herein. See Myers v Genesee County Auditor, 375 Mich 1, 11; 133 NW2d 190 (1965). [Placek, supra, p 662.]
In Myers, supra, the Court stated:
We now take up the question whether [the] decision here is to (1) include the case at bar; (2) exclude the case at bar but be made to apply to all cases to be decided hereafter or after an arbitrary control date herein specified; (3) be made applicable to all cases in which a cause of action has accrued, the assertion of which is not barred by other defenses, including but not limited to statutes providing for the limitation of actions.
When we overruled the doctrine of imputed negligence ... we did so as to "pending and future cases” as well as to that case itself. See Bricker v Green, 313 Mich 218 [236; 21 NW2d 105; 163 ALR 697 (1946)]. We adopt the same policy here. [Meyers, supra, p 11.]
Thus, the new rule was to be applicable to a case filed after Myers was issued in which the cause of action had previously accrued. Placek followed Myers in holding that the new rule was
applicable to the instant case and all appropriate cases in which trial commences after the date of this opinion including those in which a retrial is to occur because of remand on any other issue. Further, we find comparative negligence applicable to any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal. Finally, comparative negligence shall be the applicable rule in any case commenced but not submitted to the trier of fact prior to the date of this decision, but in no case shall it apply unless there is an appropriate request by counsel prior to submission to the trier of fact. [Placek, supra, pp 667-668.]
In contrast to Murray, Placek and Myers, is Parker v Port Huron Hospital, 361 Mich 1; 105 NW2d 1 (1960). Parker v Port Huron Hospital abolished the immunity from tort liability formerly enjoyed by charitable, nonprofit hospitals and declared that the new rule would "apply to the instant case and to all future causes of action arising after September 15, 1960, the date of the filing of this opinión.” Parker v Port Huron Hospital, supra, p 28. Charitable hospitals therefore retained their immunity from liability for injuries caused by the negligence of their employees before the filing of the opinion. Justice and fairness required this result because some charitable, nonprofit hospital corporations may have relied on the old rule and failed to protect themselves with insurance. It seems probable that had the Pittman Court intended its rule to be applied only to future causes of action, it would have cited Parker v Port Huron Hospital, rather than Bricker v Green, supra.
A finding that the Pittman rule operates retroactively to eliminate the state’s immunity defensé comports with the general rule that appellate court decisions are to be given full retroactive effect unless limited retroactivity is preferred where justified by (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect that retroactivity will have on the administration of justice. Tebo v Havlik, 418 Mich 350, 360-361; 343 NW2d 181 (1984); King v General Motors Corp, 136 Mich App 301, 306; 356 NW2d 626 (1984), lv den 422 Mich 871 (1985). The purpose of the new rule, to provide fairness and justice to those injured by wrongful conduct on the part of the state, Pittman, supra, p 48, is furthered by retroactivity. With respect to the reliance factor, Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), which abrogated governmental immunity for municipal corporations, put the state on notice that the continued existence of the doctrine of governmental immunity was uncertain. Retroac-tivity should not be detrimental to the administration of justice, since the state now enjoys governmental immunity, and most suits in which the cause of action accrued before August 1, 1970, the effective date of MCL 691.1407; MSA 3.996(107), would be barred by the statute of limitations. And, as plaintiff points out, since statutory governmental immunity precluded successful actions on most claims arising after the Pittman decision, “future cases” could only mean cases whose causes of action arose before the filing of the Pittman decision but which were not commenced until after it.
Defendant alternatively argues that it is immune under the provisions of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996 (101) et seq., as amended in 1970. Defendant asserts that the act applies to plaintiffs claim because he did not bring suit until January, 1979. This argument is meritless, as the issue of governmental immunity must be resolved according to the law as it existed at the time that the cause of action accrued. Pittman, supra, p 46.
Thus, we feel that the trial court correctly held that defendant was not entitled to governmental immunity.
Next, defendant claims that the trial court erred in finding that defendant was negligent and that defendant’s negligence was a proximate cause of plaintiffs injuries. The findings of fact of a trial court sitting without a jury will not be set aside unless they are clearly erroneous. MCR 2.613(C), formerly GCR 1963, 517.1. A finding is clearly erroneous if, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976); Auto Electric & Service Corp v Rockwell International Corp, 111 Mich App 292, 296; 314 NW2d 592 (1981), lv den 414 Mich 936 (1982). In the instant case, the trial court made extensive findings of fact. We have carefully reviewed the record and find that these findings are not clearly erroneous.
Plaintiff has filed in this Court a "Delayed Brief on Cross-Appeal.” Plaintiff stated in this brief that he filed a timely claim of cross-appeal from the judgment, appealing from the court’s denial of his motion for new trial to amend the findings of facts and conclusions of law pursuant to GCR 1963, 527.1, now MCR 2.611(A)(2)(c), in which he requested the court to increase the damage award to take into account inflation. Plaintiff obtained a stipulation in this Court for an extension of twenty-eight days to file an appellate brief, but that period expired in August, 1986. Plaintiff claims that no appellate brief was filed because of the holding in Bosak v Hutchinson, 422 Mich 712; 375 NW2d 333 (1985). In Bosak, the Court held that, in light of the lack of testimony on the subject of inflation, the trial court was correct in refusing to instruct the jury to take into account a thirteen percent rate of inflation in calculating the plaintiffs’ future damages. Bosak, supra, p 747. Since plaintiff in the instant case had provided no testimony on inflation, plaintiff claims that he felt an appellate brief on the issue would have been futile. Plaintiff urges that he should now be allowed to file an appellate brief, in light of Kovacs v Chesapeake & Ohio R Co, 426 Mich 647; 397 NW2d 169 (1986). In Kovacs, the Court held that the trial court was correct in instructing the jury that it could consider the effect of inflation on the amount of damages it found the plaintiff to have suffered. The Court stated that the plaintiff should not be required to first introduce evidence on inflation, since inflation is a fact known to every juror without expert testimony. Kovacs, supra, p 651.
We feel that the posture of Bosak and Kovacs did not warrant plaintiff’s failure to file a timely appellate brief and does not warrant the allowance of the filing of a delayed appellate brief. A close reading of Bosak and Kovacs reveals that Kovacs did not overrule Bosak. Rather, each was decided on its own facts. The fact that the Bosak Court found no error in the trial court’s refusal to instruct does not mean that the trial court’s refusal to take into consideration inflation in the instant case would have been upheld. Indeed, at the time Bosak was decided, plaintiff still had the benefit of this Court’s decision in Kovacs, in which we affirmed an instruction in which the trial court instructed the jury to consider inflation. Kovacs v Chesapeake & Ohio R Co, 134 Mich App 514; 351 NW2d 581 (1984). The Bosak Court recognized the Kovacs decision and distinguished it because the instruction in Kovacs was general, while the Bo-sak plaintiffs wished a specific instruction regarding a thirteen percent rate of inflation. Bosak, supra, p 747. Plaintiff in the instant case could have cited this Court’s Kovacs decision in his appellate brief. Although leave to appeal in Kovacs had been granted, plaintiff could have preserved the issue for appeal to the Supreme Court by filing an appellate brief in this Court. Thus, we feel that, since plaintiff’s reasoning for failure to file a timely appellate brief was not sound, plaintiff should not be allowed to file a tardy appellate brief.
Because we hold that defendant is not covered by governmental immunity, we need not address defendant’s claim that the manufacture and distribution of the smallpox vaccine was a governmental function.
Affirmed. | [
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D. R. Carnovale, J.
The Department of Mental Health appeals as of right from a ruling of the probate judge that the assets of a certain support trust of which petitioner was the beneficiary could not be considered by the department in determining petitioner’s liability for services provided by the department. We reverse.
Petitioner Carol Miller, age forty-five, has been a resident of the Caro Regional Mental Health Facility, a state mental health facility, for twenty-nine years, since 1958. In February, 1985, the department recalculated petitioner’s liability for payment for services provided by the department and determined that she would have to pay for the full cost of her care. In reaching its determination, the department included as an asset of petitioner’s a trust established in 1983 by petitioner’s father, Dave C. Miller, of which petitioner was the beneficiary. Mr. Miller’s sister, Vivian Lewis, was named as trustee. At the time of Mr. Miller’s death in 1984, the trust was valued at $172,079.42. It was on the basis of the trust’s assets that the department determined that Carol Miller could pay for her own care. A hearing officer affirmed the department’s decision. However, the probate judge reversed the decision of the department and the hearing officer and ruled that the trust could not be included as assets of Carol Miller’s in determining her ability to pay for her care. The department appealed to this Court.
The legal issue before us is whether the state was permitted to consider the trust assets as an asset of Carol Miller’s when determining her ability to pay for the department’s services.
By statute, an individual receiving services from the department is responsible for the cost of those services, MCL 330.1804; MSA 14.800(804), although services cannot be denied merely because an individual is unable to pay. MCL 330.1810; MSA 14.800(810). Significantly, the determination of the financial liability of a resident of a mental health facility is to be based on the resident’s total financial situation:
A single individual’s ability to pay shall be determined from a consideration of his total financial situation. Such consideration shall include, but need not be limited to, the following factors: income, expenses, insurance proceeds, number and condition of dependents, assets and liabilities. [MCL 330.1818(c); MSA 14.800(818)(c). Emphasis supplied.]
We believe that the department can consider the trust in the present case in determining petitioner’s "total financial situation.” Primary to our decision is a finding that the trust is a support trust rather than a discretionary trust. The distinction is crucial. In a discretionary trust, the trustee cannot be compelled to pay any part of the income or principal on behalf of the beneficiary. 1 Restatement Trusts, 2d, § 155(1), p 323; Coverston v Kellogg, 136 Mich App 504, 508; 357 NW2d 705 (1984). However, in a support trust, the trust assets can be reached for payment for "necessary services rendered to the beneficiary or necessary supplies furnished to him.” 1 Restatement Trusts, 2d, § 157(b), p 328; Coverston, supra at 512-513.
Article 3 of the instant trust states:
In the event the Beneficiary Carol M. Miller, survives the Settlor, the Trustee shall pay to or extend on behalf of such Beneficiary so much of the income of the trust and, also, such amounts of principal (even to the extent of all) as the Trustee deems proper for the support, maintenance and welfare of said Beneficiary.
Based on this language, we conclude that the trust is a support trust rather than a discretionary trust. Coverston, supra. Moreover, we conclude that services provided by the department are "necessary services” within the meaning of 1 Restatement Trusts, 2d, § 157(b). See also In re Sykes Estate, 131 Mich App 49; 345 NW2d 642 (1983), lv den 419 Mich 935 (1984).
We believe that the Legislature intended to require residents who could afford to pay for the cost of their care to do so. Accordingly, it makes no sense to conclude on one hand that the trust funds can be reached for payment of "necessary services” provided by the department and then to conclude on the other hand that the trust funds cannot be used by the department in determining a resident’s ability to pay for services provided. Therefore, we hold that a trust fund’s assets that can be reached for the payment of "necessary services” provided by the department are assets that the department can consider in determining a resident’s liability for the cost of the resident’s care.
Other states that have considered the issue have reached a similar conclusion. See Lackman v Dep’t of Mental Hygiene, 156 Cal App 2d 674; 320 P2d 186 (1958), and Dep’t of Mental Health & Developmental Disabilities v First Nat’l Bank of Chicago, 104 Ill App 3d 436; 432 NE2d 1086 (1982).
In re Sykes Estate, supra, cited by petitioner, is inapposite. The issue there was whether the trustee abused its discretion in refusing to pay the department’s claims against the beneficiary for the value of the department’s services. The issue in the present case is whether a support trust’s assets can be considered by the department in determining a resident’s financial liability for services provided.
Petitioner raises two issues that we could refuse to consider because she has not filed a cross-appeal. In re Chavez Estate, 127 Mich App 430; 339 NW2d 35 (1983). Nonetheless, we will address both issues because they have been thoroughly briefed by both parties and because they involve questions of law for which all necessary facts have been presented. Ledbetter v Brown City Savings Bank, 141 Mich App 692; 368 NW2d 257 (1985).
First, petitioner claims the department’s calculation of her financial liability was incorrect. We agree.
According to MCL 330.1826; MSA 14.800(826), when calculating a resident’s financial liability, the department is not to "exhaust or denude any person’s financial net worth below an amount equal to 50% of the person’s original net worth.” In the instant case, the department interpreted the term "original net worth” to refer to petitioner’s net worth as of the time she first became a resident of the Caro facility in 1958 rather than as of the time it redetermined her financial liability. We conclude that a resident’s original net worth should be determined each time the department determines or redetermines a person’s financial liability. This would be consistent with the Legisla ture’s intent, evident throughout the pertinent provisions, of keeping financial determinations current.
Second, petitioner argues that the department violated petitioner’s equal protection rights by charging her a per diem rate for the cost of her care. We hold that the department’s calculation of a resident’s cost on a per diem basis is acceptable. To hold otherwise would place an unreasonable burden on the department. Significantly, the use of per diem charges is permitted in the State Correctional Facility Reimbursement Act, MCL 800.401 et seq.; MSA 28.1701 et seq., which allows the state to collect the cost of a prisoner’s incarceration from the prisoner.
The decision of the probate judge is reversed. The case is remanded for recalculation of petitioner’s financial liability in accordance with this opinion. We do not retain jurisdiction. | [
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Per Curiam.
Plaintiffs appeal as of right from a November 13, 1985, judgment of the Roscommon Circuit Court denying relief on plaintiffs’ suit, which sought to quiet title to properties and claimed nuisance, but granting relief on defendants’ counterclaim for trespass.
In 1927, the plat of Cedar Bluffs First Annex subdivision within Denton Township, County of Roscommon, was duly recorded. Cedar Bluffs First Annex lies on the south shore of Houghton Lake. Platted at the eastern extremity of Cedar Bluffs First Annex is a portion of land designated as "Liberty Street” and ostensibly dedicated to public use. That portion of Liberty Street situated within Cedar Bluffs First Annex is thirty-three feet wide. It extends north to the lakeshore and south to the subdivision limits.
In 1944, the plat of Westfall Heights subdivision, also within Denton Township, County of Roscom-mon, was duly recorded. Westfall Heights subdivision lies on the south shore of Houghton Lake, immediately east of the Cedar Bluffs First Annex subdivision. Platted at the western extremity of Westfall Heights is a portion of land designated as Liberty Street. As in Cedar Bluffs First Annex, Liberty Street is thirty-three feet wide. It extends north to the lakeshore and south to the subdivision limits. The Westfall Heights plat also ostensibly dedicated Liberty Street to public use.
Taken together, the two parcels designated as Liberty Street are sixty-six feet wide. That portion of Liberty Street in dispute extends approximately 148 feet from Houghton View Drive, the first street south of the lakeshore, north to the lake-shore itself. The center portion of Liberty Street, approximately seventeen feet, was paved in 1962. To the east and west of the paved portion are sloped banks about twelve feet wide. The slope of those banks increases as Liberty Street drops toward the lakeshore. At the top of the banks are horizontal portions of Liberty Street, about twelve feet wide. Abutting the horizontal portion of Liberty Street on the west is a lot within Cedar Bluffs First Annex. Abutting, the horizontal portion of Liberty Street on the east is a lot within Westfall Heights.
In 1973, plaintiffs Ernest C. Bebow and Nancy L. Bebow purchased the Westfall Heights lakefront lot abutting Liberty Street. Some time after the Bebows purchased the property, they replaced an aging wooden sea wall with concrete. The new sea wall extends across the twelve-foot horizontal portion of Liberty Street, then slopes twelve feet toward the paved portion of Liberty Street, matching the contour of the banks of Liberty Street. It is not disputed that the new sea wall is in the location of the former sea wall. Defendants also concede that the Bebow sea wall provides some necessary protection for Liberty Street.
In 1978, plaintiff Eyde Brothers Development Company purchased lakefront lots 1 through. 4 in the Cedar Bluffs subdivision. Those lots run north to Houghton Lake and south to Houghton View Drive. Lot number 1 abuts Liberty Street. In 1980, Eyde Brothers built a sea wall across the lakefront of their property in much the same manner as the Bebows. The Eyde Brothers sea wall extends across the twelve-foot, horizontal portion of Liberty Street then slopes twelve feet toward the paved portion of Liberty Street, matching the contour of the banks of Liberty Street. Unlike the Bebows, however, Eyde Brothers also constructed a fence along the eastern edge of the horizontal portion of Liberty Street in 1980. The effect of the fence is to enclose the west, twelve-foot, horizontal portion of Liberty Street within the Eyde Brothers property. The Eyde Brothers fence additionally turns along Houghton View Drive, enclosing 2.3 feet of that drive ostensibly dedicated to public use in the Cedar Bluffs First Annex plat.
On September 26, 1980, Eyde Brothers and the Bebows brought suit as plaintiffs against Roscom-mon County and other defendants under quiet-title and nuisance theories. The thrust of plaintiffs’ claim under the quiet-title theory was that the Liberty Street and Houghton View Drive proper ties were never actually dedicated because they were not properly accepted by defendants. The thrust of plaintiffs’ nuisance theory was that defendants were essentially the owners of an unsupervised and unmaintained park—a condition resulting in litter, noise and congestion which interfered with plaintiffs’ use of their own properties.
Defendants answered on September 28, 1983, denying that Liberty Street had not been dedicated and denying that Liberty Street constituted a nuisance. Defendants also filed a counterclaim, alleging trespass on the part of Eyde Brothers in the construction of its fence and sea wall. Defendant Denton Township intervened in the suit by order of the circuit court dated October 23, 1984.
A bench trial was held in the circuit court on July 16 through 18, 1985. Proposed findings of fact were subsequently filed by both parties. On October 7, 1985, the circuit court entered its opinion in favor of defendants. The trial court held that five factors supported its conclusion that there was acceptance by defendants and therefore a proper dedication of Liberty Street: (1) there was acceptance under the "McNitt Act,” 1931 PA 130, repealed, 1951 PA 51, §2, repealed 1969 PA 319, § 297, with continued foot changes submitted by the county to the state; (2) there was use by the public of the entire width of Liberty Street; (3) public funds were used to construct a paved roadway on Liberty Street; (4) public funds were used to install a drain; and (5) Denton Township established a dock ordinance regulating the use and placing of docks at the foot of public streets in the township. The trial court further held that there was no evidence to indicate abandonment of Liberty Street by the public.
Regarding plaintiffs’ nuisance theory, the trial court found that the actions by the public in using Liberty Street were not so outrageous as to require a closing of the street. The court did note that there had been occasions, particularly on summer weekends, when the public had engaged in activities constituting a nuisance. However, the trial court held that it did not have authority to close Liberty Street, even if the nuisance had been continuous and outrageous. The trial court instead encouraged plaintiffs to contact defendants when such behavior occurred so that existing laws and ordinances could be enforced. Finally, the trial court held that any money damages for the nuisance previously created would be speculative.
Regarding defendants’ counterclaim, the trial court found that there had been a trespass by Eyde Brothers. The trial court ordered Eyde Brothers to remove their fence extending along Liberty Street and remove that portion of their sea wall extending across Liberty Street. The trial court made no findings regarding that portion of Eyde Brothers’ fence extending along Houghton View Drive.
i
THE FEE INTEREST IN THE DISPUTED PROPERTY
On appeal, plaintiffs argue that the trial court erred in holding that there was a proper dedication of Liberty Street and that title to the property has therefore vested in the county or township. According to plaintiffs, dedication requires both an offer, submitted by properly recording the plat, and an acceptance by formal action or by undertaking repairs or improvements, by the public. Plaintiffs submit that there was no formal acceptance by defendants nor was there an informal acceptance within a reasonable time. Thus, plaintiffs argue that Liberty Street continues to be privately owned, although plaintiffs’ briefs and pleadings do not specify by whom Liberty Street is owned. Under this theory, plaintiffs suggested at oral argument that the property might revert to the abutting landowners. Alternatively, plaintiffs argue that if there was an acceptance by defendants, it was informal and therefore limited to the improved or paved portion of Liberty Street.
Our analysis of the question of the ownership of Liberty Street leads us first to the express language of the plat act at the time that Cedar Bluffs First Annex and Westfall Heights plats were recorded. In 1927, when the plat of Cedar Bluffs First Annex was recorded, Michigan’s plat act provided:
The [plat] map so made and recorded in compliance with the provisions of this act shall be deemed a sufficient conveyance to vest the fee of such parcels of land as may be herein designated for public uses in the city or villages within the incorporate limits of which the land platted is included, or if not included within the limits of any incorporated city or village, then in the township within the limits of which it is included in trust to and for the uses and purposes therein designated, and for no other use or purpose whatever. [1925 PA 360.]
When the Westfall Heights plat was recorded, Michigan’s plat act contained nearly identical language:
The plat so made and recorded in compliance with the provisions of this act shall be deemed a sufficient conveyance to vest the fee of such parcels of land as may be herein designated for public use in the municipality within the limits of which the land platted is included, in trust to and for the uses and purposes therein designated and for no other use or purpose whatever. [1929 PA 172, repealed 1967 PA 288, § 292. MCL 560.292; MSA 26.430(292).]
It should be noted that Michigan’s plat act did not use the word "dedication” nor did it refer to any process of acceptance by the municipality. Instead, the transfer of the fee in lands dedicated for public use is apparently complete upon a proper recording of the plat. Here it is not disputed that Liberty Street and Houghton View Drive were designated as public property in the plats. Nor is it disputed that the plats were properly recorded. Thus, looking only to the plat act, we would quickly conclude that the fee to these parcels has been vested in the public since the recording of the plats. However, that result is somewhat modified by the interpretive case law.
In Wayne Co v Miller, 31 Mich 447, 448-449 (1875), Justice Cooley explained that the filing of a plat does not necessarily transfer publicly designated lands:
Without venturing to express any definite opinion whether such a plat should be regarded as a grant or as a mere offer to dedicate, it is very clear to our minds that it is one or the other, or perhaps partakes of the nature of both, and that some action by competent public authority is essential before it can have the intended effect. If the plat is only an offer to dedicate, the offer must be accepted or it may be withdrawn, and after any considerable lapse of time must be regarded as no longer open for acceptance, unless the circum stances are such as to make the offer continuous. On this subject our own decisions have been full and explicit. —People v Jones, 6 Mich 176 (1858); Lee v Lake, 14 Mich 12 (1865); Baker v Johnston, 21 Mich 319 (1870).
But if the pilat is regarded as a grant, it is equally necessary that there should be acceptance. No one can thrust a grant upon another without his assent. —Thompson v Leach, 2 Ventris 198; Jackson v Goodell, 20 Johns 187; Hurst v McNeil, 1 Wash CC 70. It is true, acceptance of a grant may be presumed when it is beneficial,—Tompkins v Wheeler, 16 Pet 118; Maynard v Maynard, 10 Mass 456; Church v Gilman, 15 Wend 661, 663; Peavey v Tilton, 18 NH 151; Townson v Tickell, 3 B & Aid 36; but there can be no conclusive presumption that a grant of land for a public way is so. We may almost take judicial notice that an offer of land for such a purpose is often—and very properly—declined, for the reason that no such way as the one proposed is needed, and by the acceptance the public would be burdened with obligations without corresponding benefits.
Accord: Ryan v Royal Oak Twp, 289 Mich 469, 473; 286 NW 793 (1939); Salzer v State Treasurer, 48 Mich App 34, 37; 209 NW2d 849 (1973); Nelson v Roscommon Co Rd Comm, 117 Mich App 125, 131; 323 NW2d 621 (1982). Cf. Pulcifer v Bishop, 246 Mich 579, 582; 225 NW 3 (1929); Kirchen v Remenga, 291 Mich 94, 110-112; 288 NW 344 (1939) (platting and sale of lots constitutes a transfer of private rights in publicly designated lands to the purchasers of lots).
Not even Justice Cooley has attempted to square the rule of acceptance with the explicit language of the plat act that recording "shall be deemed a sufficient conveyance to vest the fee.” However, the policy underlying the additional re quirement of acceptance is sound. Furthermore, the plat act was repeatedly amended between 1839 and 1967 without significantly altering the language addressing conveyance of lands designated for public use. The Legislature is presumed to be aware of prior interpretations when amending a statute. General Motors Corp v Detroit, 141 Mich App 630, 634; 368 NW2d 739 (1985). We can only conclude that there has been legislative acquiescence in, the rule of acceptance of parcels of property dedicated for public use when platted.
Acceptance of such parcels may be: (1) formal by resolution; (2) informal through the expenditure of public money for repair, improvement and control of the roadway; or (3) informal through public use. Hooker v City of Grosse Pointe, 328 Mich 621, 630; 44 NW2d 134 (1950). However, acceptance must be made within a reasonable time after the offer. Miller, supra, 449; Field v Village of Manchester, 32 Mich 279, 281 (1875); Nelson v Roscommon Co Rd Comm, supra, 131. What constitutes a reasonable time is largely governed by the surrounding circumstances. As long as the original proprietor or one claiming through him takes no steps to withdraw the offer, it is considered to be continuing. White v Smith, 37 Mich 290, 295-296 (1877); Ackerman v Spring Lake Twp, 12 Mich App 498; 163 NW2d 230 (1968).
Defendants have argued that there was formal acceptance of both Liberty Street and Houghton View Drive by resolutions of the Roscommon County Road Commission pursuant to the McNitt Act, 1931 PA 130, repealed, 1951 PA 51, § 21. Evidence was produced at trial to establish that, on April 2, 1937, the county road commission adopted a resolution to take over maintenance of all streets dedicated for public use in recorded plats within Roscommon County. Further evidence established that, on March 16, 1953, the county road commission resolved: (a) to formally acknowledge, confirm and reaffirm their prior taking over as county roads all streets required to be taken as county roads pursuant to the McNitt Act; and (b) to take over as county roads pursuant to 1951 PA 51, § 19, MCL 247.669; MSA 9.1097(19), all dedicated streets and alleys in specified subdivisions, including Cedar Bluffs First Annex and Westfall Heights.
The trial court apparently held that these "McNitt Act acceptances” were sufficient in and of themselves to vest the fee in Liberty Street in the public. To the extent that the trial court’s opinion so holds, we disagree. Prior decisions indicate that acceptance may in part be based upon the McNitt Act. Rice v Clare Co Rd Comm, 346 Mich 658; 78 NW2d 651 (1956); Pulleyblank v Mason Co Rd Comm, 350 Mich 223; 86 NW2d 309 (1957); Ackerman, supra; Salzer, supra. However, the McNitt Act does not allow incorporation of a private street into a county road system. 1931 PA 130, § 1; Pulleyblank, supra, 230; Salzer, supra, 39. Thus, before McNitt Act resolutions can effect incorporation of a street into the county road system, the street must be "public” in some sense. Mere designation of a street as public in a plat is insufficient. Salzer, supra. However, "McNitt Act acceptance” in addition to other acts of acceptance may furnish proof that the holding of a street by the general public is open, notorious and exclusive. Pulleyblank, supra.
Since no other acts of formal acceptance were alleged by defendants, we turn to evidence of informal acceptance. In this regard, the trial court noted evidence that public funds had been used to install a drain and pave the Liberty Street roadway in 1962. Acceptance of lands dedicated for public use may be made by expenditure of public money for improvement and control of the roadway. Hooker, supra.
The trial court’s findings of improvements to Liberty Street are not disputed. However, plaintiffs raise two arguments against the trial court’s holding that Liberty Street was thereby accepted by the public. First, plaintiffs assert that the offer of dedication through the recording of the plat was not accepted within a reasonable time. This argument is easily dismissed. As we have observed, such an offer is considered to be continuing as long as the original proprietor or those claiming through him take no steps to withdraw the offer. White, Ackerman, supra. Defendants point to no evidence indicating that steps were taken to withdraw the offer of Liberty Street prior to 1962 and we can find none in the record. Thus, we conclude that there was acceptance of Liberty Street through the improvements made in 1962.
Plaintiffs’ second argument in this regard is that, even if there was acceptance by way of the 1962 improvements to Liberty Street, that acceptance is limited to the extent of the improvements —presumably the seventeen foot width of the paved portion of the street. In this regard, plaintiffs cite Wayne Co v Miller, supra, 449, Field v Village of Manchester, supra, 281, Pontiac Twp v Featherstone, 319 Mich 382, 390-391; 29 NW2d 898 (1947), and Nelson v Roscommon Co Rd Comm, supra, 132. Those cases are, however, distinguishable from the instant case. In Miller, Field and Featherstone, not only had the public authority failed to make improvements to the designated public land, but the private litigants had each erected fences and excluded the public from the land for a number of years. Thus, these cases may be seen as specific examples of the failure of public authorities to informally accept the disputed land prior to a withdrawal of the offer by those claiming through the original proprietor of the plat. Nelson is somewhat different in that no fence had been erected by the private landowner. However, the, private property owners in Nelson owned lots on both sides of the disputed street and had effectively excluded the public by allowing selective growth of trees, bushes and undergrowth for some eighty years.
Here, on the other hand, plaintiffs did nothing to exclude the public from any portion of Liberty Street until Eyde Brothers erected their fence in 1980. This dispute began immediately thereafter, with defendants’ demands that the fence be removed and the filing of plaintiffs’ suit. We are not impressed by plaintiffs’ suggestion that construction of the Bebows’ sea wall effectively excluded the public. It would seem unassailable that the design of the sea wall, matching the contours of the banks of Liberty Street, would not present a barrier to public use. Indeed, to the extent that the Bebow sea wall has prevented erosion of the banks of Liberty Street, we would be inclined to conclude that it actually enhanced and protected public use. We therefore believe that the general rule of acceptance by improvement is applicable in this instance. It is not essential that every part of a highway should be worked in order to evidence the intention of the public = authorities to accept and maintain the entire highway. Olsen v Village of Grand Beach, 282 Mich 364, 372; 276 NW 481 (1937); Pulleyblank, supra, 227; Elias Bros, Inc v City of Hazel Park, 1 Mich App 30, 34; 133 NW2d 206 (1965).
In summary, Liberty Street was designated as land reserved for public use by the platting of the Cedar Bluffs First Annex and Westfall Heights subdivisions. It was accepted by public authorities with the construction of a drain and paved surface in 1962. The occupation of the land has been continuous since that time. Furthermore, by virtue of McNitt Act acceptance, public occupation has undeniably been open and notorious. We therefore conclude that, in accordance with the Plat Act and applicable case law, public authorities have a fee interest in the entire width of Liberty Street as platted.
Our resolution of this issue obviates the need to address plaintiffs’ arguments directed to the retro-activity of MCL 560.255b; MSA 26.430(255b) and the issue of highway by user. However, our analysis does not resolve the question of the alleged encroachment of the Eyde Brothers’ fence along Houghton View Drive. While we are inclined to believe that the same analysis would apply to this portion of the disputed property, we are unable to do so because of the absence of findings of fact by the trial court. See Part ii. This matter is therefore remanded to the trial court for further findings of fact and application of legal principles regarding the platting and acceptance of the disputed portion of Houghton View Drive.
ii
THE NUISANCE CLAIM
The word "nuisance” has been variously defined and is so comprehensive that its existence must be determined from the facts and circumstances of each case. Ebel v Saginaw Co Bd of Road Comm’rs, 386 Mich 598, 606; 194 NW2d 365 (1972). As explained previously by this Court in Martin v Michigan, 129 Mich App 100, 108; 341 NW2d 239 (1983), lv den 422 Mich 891 (1985):
There are two categories of nuisances: nuisances per se and nuisances in fact. The latter category is further divided into intentional nuisances and negligent nuisances. Gerzeski v Dep’t of State Highways [403 Mich 149; 268 NW2d 525 (1978)] supra. A nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances. Thus, the existence of a nuisance per se is established by proof of the act which created it and becomes a nuisance as a matter of law. The defendant’s liability is established at that point. Ford v Detroit [91 Mich App 333; 283 NW2d 739 (1979)] supra, p 335.
In contrast, a nuisance in fact is a nuisance by reason of circumstances and surroundings, and an act may be found to be a nuisance in fact where its natural tendency is to create danger and inflict injury to person or property. The existence of a nuisance in fact is a question for the trier of fact, which may or may not find the existence of a nuisance from proof of the act and its consequences. Ford v Detroit, supra, pp 335-336.
The distinction between an intentional nuisance in fact and a negligent nuisance in fact is particularly important in this case, since the defendants are governmental units. Only an intentional nuisance in fact falls within an exception to the rule of governmental tort immunity. Rosario v City of Lansing, 403 Mich 124, 132; 268 NW2d 230 (1978); Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978). See generally, Martin, supra, 108-109. As we have recently explained in Velmer v Baraga Area Schools, 157 Mich App 489, 500; 403 NW2d 171 (1987).
An intentionally created nuisance requires proof that the person creating or continuing the nuisance knew or must have known that harm to plaintiff was substantially certain to follow. Pate v Dep’t of Transportation, 127 Mich App 130, 135-136; 339 NW2d 3 (1983); Rosario, supra, 143, n 2. It is not even enough that the person creating the nuisance knows that harm "might result”; he must know that harm is "substantially certain to follow”. Zyskowski v Habelmann, 150 Mich App 230, 240-241; 388 NW2d 315 (1986).
See also Velmer, supra, pp 501-502 (distinguishing intentional, negligent omissions from intentional, negligent commissions).
The locality and surroundings of the challenged operation or thing become an important factor in arriving at a proper judicial decision of the existence or nonexistence of an actionable nuisance in fact. That which would be actionable or abatable in one place or locality might not be such in another. Obrecht v National Gypsum Co, 361 Mich 399, 417; 105 NW2d 143 (1960); Borsvold v United Dairies, 347 Mich 672, 681; 81 NW2d 378 (1957); Smith v Western Wayne Co Conservation Ass’n, 380 Mich 526, 536; 158 NW2d 463 (1968). Thus, for example, it has been held that the more residential the area, the less noise will be tolerable. Smith, supra, 537. More noise is tolerable before bedtime than afterwards. Smith, supra.
In general, a court of equity has the power to enjoin a nuisance. Norton Shores v Carr, 81 Mich App 715, 724; 265 NW2d 802 (1978), lv den 403 Mich 812 (1978). It is the policy of the courts to tailor the remedy to the problem and, where possible, to abate the nuisance without completely destroying legitimate activity. Norton Shores, supra.
Here, plaintiffs have pled that a number of the public’s uses of Liberty Street constitute a nui sanee. Count i, paragraph a, of the complaint alleges:
8. That Liberty Avenue from Houghton Lake to Houghton View Drive is a nuisance for the following reasons:
A. With great frequency, this section of road is used by people who are so noisy that they impair the peace, rest and comfort of Plaintiffs within their own homes. This noise continues at all hours of the day and night.
B. That the people who use this section of the road frequently leave this area strewn with litter and garbage.
C. That cars are often parked illegally on this section of the road and are not ticketed or towed despite the Plaintiffs requests that they be ticketed or towed.
D. That many trespassers enter onto the Plaintiffs’ property from this section of the road who are difficult to handle because they are under the influence of alcohol.
E. That this section of road invites trespass onto the Plaintiffs’ property because no fence was built at the edge of the Right of Way by the Roscommon County Board of Road Commissioners.
F. That trespassers do enter onto the Plaintiffs’ properties from Liberty Avenue and use Plaintiffs’ private docks and private beaches. That the Road emptying into Houghton Lake at this point invites trespassers to the Plaintiffs’ property.
H. That Defendants do not provide nor does a police department, State, County or local authority, adequately patrol this section of the road, nor does the dnr adequately patrol this section of the road or the beaches, lakefront and water that this Road leads to and empties into. The failure of Defendants to carry out their duties have created this nuisance to Plaintiffs.
There was conflicting testimony as to the existence and frequency of the public actions of noise, loitering, littering and trespass. There was also conflicting testimony as to the knowledge of local law enforcement officials about those activities and the adequacy of their response.
Unfortunately, the trial court’s findings do not allow this Court to determine how these factual issues were resolved or how nuisance principles were applied by the trial court. In regard to the question of nuisance, the trial court simply concluded:
1. The Court does not find that it has the authority to close Liberty Street for this reason.
2. Arguendo, for purposes of this opinion, if the Court does have authority, then the Court does not find, in its discretion, that the actions by the public are so outrageous that the street should be closed.
3. The Court does find that there have been occasions when the public has engaged in activities which do constitute nuisances.
Plaintiff, Patrick Eyde, testified that, since he purchased the property in the winter of 1978, there have been many instances of improper behavior by the public. Such instances occur in the summer, and, in particular, on week-ends.
Witness Roy Kaleto, former owner of Plaintiff Bebows’ property, described improper behavior. He hasn’t returned to the property since he sold it in 1973.
Both Plaintiffs Ernest Bebow and Nancy Bebow described improper behavior.
Testimony of Robert Sullivan, Defendant Denton Township Treasurer, described what the township had received by way of complaints and what the township had done by way of enforcement.
The issue of a public nuisance is a continuing issue. The Court would encourage the Plaintiffs to contact the Defendants to reasonably act to enforce applicable laws.
The trial court’s findings of fact leave many issues unresolved, including: (1) the specific nature of the nuisance; (2) whether the activities on Liberty Street constituted a nuisance in fact or nuisance per se; (3) whether, assuming that the nuisance was one in fact, it was an intentional or negligent nuisance in fact; (4) the primary and reasonable use of plaintiffs’ property and whether the nuisance interfered with that use; and (5) what specific relief, other than closing Liberty Street entirely, might be tailored so as to abate the nuisance.
We believe that specific trial-court findings in this case are particularly important. Although it has been said that liability for nuisance is a species of tort liability, Rosario v City of Lansing, supra, 131, n 4; 58 Am Jur 2d, Nuisances, § 19, p 580, equitable authority in nuisance actions is well established. Norton Shores, supra. In some jurisdictions, nuisance actions may be brought in either equity or law. 58 Am Jur 2d, Nuisances, § 142, p 714. Moreover, before we can determine whether these defendants are liable for nuisance, the nature of the nuisance must be clear.
As we have explained in Nicpon v Nicpon, 9 Mich App 373, 377-378; 157 NW2d 464 (1968):
An appellate court’s primary function in regard to fact finding is review of the trial court’s record and determination whether that record supports the trial court’s findings. It is not the function of an appellate court to decide disputed questions of fact in the first instance and then choose between affirmance or reversal by testing its factual conclusion against that which the trial court might have or, if the trial judge’s reasoning at the time of judgment were identical with that of the appellate court at the time of review, must have reached for it to issue the judgment it did.
Clear and complete findings by the trial judge are essential to enable us properly to exercise and not exceed our powers of review.
"We must know what a decision means before the duty becomes ours to say whether it is right or wrong?” Mr. Justice Cardozo, for the Court, in United States v Chicago, M St P & P R Co, 294 US 499, 511; 55 S Ct 462; 79 L Ed 1023, (1935).
We decline to speculate as to what the trial court might have found or how it might have applied its equitable powers of relief based upon those findings. This case must therefore be remanded for further findings of fact and application of the legal principles discussed herein by the trial court.
Remanded for further proceedings consistent with this opinion. We retain jurisdiction.
1 1967 PA 288, § 253, MCL 560.253(2); MSA 26.430(253), similarly provides:
The land intended for the streets, alleys, commons, parks or other public uses as designated on the plat shall be held by the municipality in which the plat is situated in trust to and for such uses and purposes.
2 1839 PA 91, which preceded 1925 PA 360, contained identical language regarding the transfer of lands platted for public use.
That common-law rule has been codified at MCL 247.190; MSA 9.270.
At various times in the course of this litigation, plaintiffs have asserted that Liberty Street has been abandoned by defendants. Plaintiffs do not raise this issue on appeal. | [
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Campbell, J.
Respondent was convicted of rape. The offense, if commited, was done while respondent had the young girl, who was the subject of it, apart in her chamber for the purpose of examination and treatment for some female difficulty. According to her story, he used locally some articles which, it is supposed and testified, might prevent some significant appearances and consequences, which would otherwise have been likely to become manifest. Her account, if true, made out a clear and aggravated case. He, in his sworn statements, denied any sexual intercourse of any kind. There was nothing in the case which could relieve the jury from believing one or the other of these witnesses upon the question of intercourse, and it is difficult to see how any complicated issues could arise. In this conflict the circumstantial evidence became essential in aiding the jury to determine which was to be substantially credited, and upon this there was therefore a contest upon the trial, and there were facts open to comment. There was the testimony of physicians who made a personal examination shortly after, which, if true, made it reasonably certain that she had been violated by some one; and, so far as the record shows, there was no testimony pointing in any other direction as to the person who did the act. It appears, however, that other wit nesses, sworn as medical experts, are claimed to have given a different view of the meaning of the appearances. All this was before the jury, and no points are made upon it on the law. But the radical differences between the chief witnesses on the main fact were those on which all the other testimony was meant to bear.
Objection was made to the testimony of the mother in showing that on the next day but one after the occurrences the appearance and behavior of the girl were such that she insisted on knowing what was the matter, and the daughter told her what had occurred. We think this was admissible under the previous rulings of this Court, referred to on the argument. In all such cases it is desirable to know how soon or in what way the outraged person complains. Its force ife for the jury. In the present case the mother had directed, if not compelled, the daughter to submit to medical treatment of a necessarily unpleasant nature, and had been induced to leave the room. It was after an interview with respondent that., the mother had herself caused, and in connection with appearances, and a shame-faced look in the child, that she made the inquiry, which it was certainly her duty to make, and which it was as proper to show. The jury were not, so far as we can see, allowed to be misled into giving this testimony any further force than legally belonged to it. It was, to a certain extent, a part of the transaction or res gestee, which, in rape cases, according to most of the authorities, would1 include such accounts of the recent crime as are to be expected from the injured woman. We do not think the ruling was erroneous.
Two further objections to answers required by the court to be given by a medical witness to certain interrogatories require more attention, because they were not such as he could properly be called on to answer, and he strongly objected to them as not involving medical science. That they were improper is too manifest to bear discussion. But it is not so clear that the answers worked any legal wrong.
One of them occupies two full printed pages, and asks the doctor whether, in his opinion, the facts assumed in the hypothesis presented would constitute rape. The other related to some rather metaphysical complications which the doctor very sensibly intimated could in no way affect his answer to the other question, and to this we see no possible legal objection.
The long question, however, assumed as facts in the hypothesis all that the girl had shown in her narrative of the offense, including all the circumstances attending the respondent’s visit, and his previous preparations and subsequent appearances. It was very properly, objected by the witness that this called on him for an opinion which would not be a medical opinion.
The case indicates that this was not the only similar instance, and the practice of presenting such hypotheses by counsel to witnesses is worthy of strong condemnation. In most cases it asks a witness to usurp the functions of the jury, and may often lead them to disregard their own functions and accept conclusions which they should form for themselves. But it may also be observed that another result, even where the question involves science, is nearly as dangerous. No opinion on a scientific question can be of any service to a jury, either in giving them direct knowledge, or in enabling them to compare opinions, unless they know just what elements enter into the opinion. Human memory is not usually so tenacious that a question of such great length, involving many distinct facts or elements, can be fully remembered by a witness to whom it is propounded on the stand, and it is practically unlikely, if not impossible, that when he answers it he answers it in view of all these separate elements. He necessarily answers it by assuming for himself what is material and what is immaterial, and if he were at the same time to show what matters he has eliminatéd, there could be no difficulty in ascertaining what is needed, and testing all witnesses by the same standard. But where this process is repeated by different witnesses, they may not all act on- the same basis, and conflicts of opinion will appear, which are more apparent than real. In science, as everywhere else, all inquiries should be brief and clear enough to leave out all rubbish and direct attention to tangible results. In regard to such a dispute as arose here, the strictly medical inquiries were very few and simple, and if required to be made in a simple form would have been more serviceable. Here they were only necessary by way of corroboration, for no medical testimony can usually be needed, under our present statutes, to ascertain whether rape has been committed. In the present case the witness was called on to usurp the functions of the court and not of the jury. His opinion turned out, when given, to be correct upon the law, and we cannot reverse a judgment because the law has been rightly laid before the jury, by any one. The error was cured by the answer. But it is better that the law should be laid down solely by the legal instructor of the 3ury- ,
The remaining questions relate to the charge. It was very long, and most of the errors assigned are due to this, as various parts have been dwelt on as indicating misleading directions. There were no requests denied that were not, so far as they were proper at all, covered by the charge as given. The essence of the exceptions is that it was an argumentative charge, bearing very strongly against the respondent. We do not, however, think that it is quite fair to select out single passages and deal with them as if they were independent. The method of excepting was to cut up this voluminous charge into paragraphs, such as counsel chose to divide up, and treat each of those so-called paragraphs, although sometimes not entirely relating to one part of the subject, as a minor and distinct charge. Even in this way the exception referring to such a paragraph frequently leaves us in doubt just what was aimed at. But, although this is bad practice, we have nevertheless looked into the whole charge, and are disposed to consider all that was urged on the argument as affecting it. We have done so, because the charge itself is much beyond the ordinary scope of charges usually given in cases involving so short an inquiry. We are obliged to see, practically, that the only real dispute was whether the girl told the truth. About this simple issue there was made up a great entanglement of discussion on tlie trial, and the judge seems to have thought it proper to discuss all of the various suggestions made on both sides, so. as to present to the jury all the conflicting views. This is all we can find in considering these exceptions; and while we think such a re-statement of the discussion is very likely to confound the jury, we do not see any reason in this record to infer that they did not have the case fairly presented. The judge took pains from time to time to explain that it was the business of the jury to form their own conclusions, and to warn them of the necessity of doing no injustice, and of not convicting if there was any reasonable doubt. We do not think that in his comments on the enormity of the offense, if committed, and on the relative positions of the parties, he exceeded legal limits or inculcated any unwholesome views. We do not think the cause of decency would be subserved by our spreading upon our reports the particulars of the offense as turned over in various ways before the jury. We think it sufficient to say that while from the great number of the rulings we have found it necessary to consider the case with more obstacles in the way of comparison than we should have liked, we do not discover that any legal wrong has been done, and
We affirm the'judgment.
The other Justices concurred. | [
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Champlin, J.
The defendants operated a saw-mill at Muskegon, and under a contract with plaintiffs manufactured their logs into lumber for a specified price per thousand feet. No time of payment was agreed upon, but payments were made from time to time as the sawing progressed. The plaintiffs were permitted to ship the lumber manufactured away from time to time as they chose, in ease no objection was made by defendants. The sawing extended through the season of 1881, and the lumber in dispute was left in the mill-yard of defendants, where it had been manufactured and cross-piled under their contract with plaintiffs. The defendants claimed a lien on this lumber for the balance unpaid of their saw bill, and rendered a statement of account therefor, and requested payment. The plaintiffs did not pay, and no reason is shown for their refusal. They demanded the lumber, and defendants refused to deliver it until their account was paid; and plaintiffs brought replevin. The defendants pleaded the general issue, and gave notice of their lien for sawing, and claimed a special property in the lumber to the extent of such lien.
On the trial the defendants introduced and proved their account against the plaintiffs, which contained three small items, amounting in the aggregate to $13, which were not for sawing and piling lumber, and these the defendants ashed leave and were permitted to withdraw from the case. The amount due defendants for sawing was shown to be $953.57.
After the testimony was in, the plaintiff’s counsel stated to the court that there was no dispute about the facts to go to the jury at all. We extract from the record:
“ Court- — ■ Gentlemen, I think you had better submit this case to the jury.
Mr. Campbell — We object to submitting the case to the jury, and we ask the court, as a question of law one way or the other, to instruct the jury whether there was a lien by defendants on this lumber at the time this suit was brought, or not. If they did have a lien, they are entitled to a judgment ; if they had no lien, and even if they were owing defendants that amount, they would not have any lien. I submit that the case cannot be argued upon any other hypothesis than this, and we ask the-court to instruct the jury either that there was a lien or that there was not.”
The court then inquired of counsel for the defendant if he wished to say anything to the jury, and he replied that he did not.
The counsel for the plaintiff requested the court to instruct the jury that the defendants having re-stated their account, and having deducted certain items, that thereby the accounts were in such a condition that there could be no lien, and that the jury should find for the plaintiffs.
The court then asked plaintiffs’ counsel this question:
“ Then I understand it is admitted that if there was a lien on this property defendants would be entitled to a judgment of $953.57. And on the part of the plaintiffs it is claimed that this question of lien and the question of waiver is a pure question of law, and should be determined by the court.”
Mr. Campbell — “Tes, your honor; and that the jury should be instructed one way or the other — either that there was a lien on this property by the defendants on the day this suit was brought, or that there was not.”
The plaintiff’s counsel made some further requests to charge, but .in -none of them were any facts submitted to the jury to pass upon. The court instructed the jury that in his opinion the defendants had a lien upon the lumber, and directed a verdict for the defendants.
We find no error in the record. The testimony did not show a waiver of the lien, and
The judgment is affirmed.
The other Justices concurred. | [
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Champlin, J.
The plaintiff claimed that he entered into an agreement with defendant by which he was to furnish and deliver to one John Labonta an unlimited amount of merchandise, as he, Labonta, might call for, or order by mail, or otherwise; and defendant was to pay plaintiff for all the goods so ordered or called for by Labonta; that in pursuance of that agreement plaintiff delivered goods to Labonta, from time to time, at the request of defendant, ■ and, at the time this action was brought, plaintiff claimed a balance due him of about four hundred dollars. On the trial the plaintiff gave evidence tending to prove the contract as alleged in the declaration. The plaintiff was the only witness who testified to the contract, and his statement of it was denied by the defendant, who testified that he told plaintiff that Labonta, his son-in-law, was intending to engage in trade in a small way; that he had a little money and that he would help him a little; and asked plaintiff if he could not let Labonta have some goods, and he said he would. The defendant contends that the contract, as set out in the plaintiff’s declaration, is void as being against the Statute of Frauds, for the reason that the promise of defendant is collateral, and is only to pay the debt or default of Labonta.
This is a mistake. ' The promise and undertaking of defendant, as alleged in the declaration, is an original promise, and rests upon a sufficient consideration. The goods were to be furnished to Labonta, it is true, but upon the express agreement that defendant should pay for them. Under the declaration, the entire credit was originally given to defendant.
The defendant also insists that, under the evidence, which is all returned in the record, it was the duty of the trial judge to have taken the case from the jury, and decide the case as matter of law in favor of defendant. But this the trial judge could not do, if there was any evidence tending to prove the plaintiff’s claim. The testimony of the plaintiff, however inconsistent with itself, tended, in some parts thereof, to sustain the declaration, and the effect and weight to be given to it was solely a question for the jury, and it would have been error in the court to have taken the case from them.
The court instructed the jury that the burden of proof was upon the plaintiff to show by a fair preponderance of evidence of the existence of the contract, and that in pursuance of such contract he delivered the goods, relying entirely upon the promise of Jensen to pay the debt. • And if the-jury was satisfied by a fair preponderance of evidence that the bargain was made as plaintiff claimed, and that he relied entirely upon it and never looked to Labonta for his pay,, then he' was entitled to recover; otherwise he was not entitled to recover. But if the jury believed the theory of defendant, that no contract of this kind was ever made, and that he never agreed to pay any sum whatever absolutely, he is not liable and they should find no cause of action. The circuit judge placed the case very fully, and fairly before the jury, and at the conclusion instructed them as follows:
“ The only question for you to determine is, ‘ was this bargain made between the plaintiff and defendant, whereby goods were to be delivered to Labonta upon the credit of the defendant, and did the plaintiff, relying upon it, deliver-the goods solely upon the credit of this man Jensen, and looking to no one else at all for his pay?’ That is the question. If you solve that question in favor of the plaintiff, then he is entitled to a verdict; if you solve it against him, then he is not entitled to a verdict. The plaintiff must have looked to the defendant, Jensen, from the begin-. ning to the end of the transaction.”
There is no error in the charge of the court. "We do not think it is open to the criticism that “ the charge, as given assumed that the evidence made out an absolute promise to pay.” On the contrary, it was the very question he submitted to the jury, to be determined by them from all the-, evidence in the case.
The plaintiff testified :
“Last August Mr. Jensen came up to me, in Manistee,, and made arrangements to furnish his son-in-law goods when he called for them. The object that Mr. Jensen wanted goods for his son-in-law was because he was a roving charac ter, and he would see them paid for. I should deliver the goods to John Labonta, and he would see them paid. He stated the object in wanting the goods. His son-in-law was a sailor by profession, and he wanted to settle him down. He wanted his daughter to run the store, and his son-in-law to work around the mills, if the store didn’t require his services. And I agreed to do so.”
If this testimony of the plaintiff was found by the jury to be true, the agreement was not within the Statute of Frauds. The statute does not prevent a person from buying goods on his own credit, to be delivered to another, unless in writing. In such case the important question is, to whom was the credit given ? And this question the court fairly submitted to the jury.
And the fact that the goods are charged on the books of the seller to the person to whom they were delivered is not conclusive that they were sold upon his credit. Foster v. Persch 68 N. Y. 400; Hazen v. Bearden 4 Sneed 48; Walker v. Richards 41 N. H. 388; Swift v. Pierce 13 Allen 136; Barrett v. McHugh 128 Mass. 165; Champion v. Doty 31 Wis. 190; Ruggles v. Cotton 50 Ill. 412. The plaintiff charged the goods delivered as follows: “John Labonta, by order of Charles Jensen.” The plaintiff testified that he gave credit to the defendant when he let the goods go, and in response to a question put to him on cross-examination by defendant’s attorney, “ Who did you look to for pay for those goods % ” replied: “Jensen;” and that he did not look to Labonta for it. The court instructed the jury that “ the way the goods are charged upon the books does not exclude the parties from showing the exact fact to whom the credit was given.” While there was no error in this portion of the charge, we think the charge made upon the books is quite as consistent with the view that credit was originally given to defendant as to Labonta; and the testimony received upon the subject as to whom credit was given was unexceptionable.
There are no errors in the record that call for a reversal of the judgment and therefore it is affirmed.
The other Justices concurred. | [
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Sherwood, J.
The declaration in this case is upon the common counts in assumpsit. Plea, general issue.
On the 29th of October, 1879, Noye & Sons of Buffalo, New York, proposed in writing to furnish to the defendants at Flint in this State, a quantity of mill machinery for the 'sum of $4872.50, to be paid for as follows: cash, $1672.50; in a first mortgage on real estate in Seneca county, Eew York, $2000; and the defendants’ note for the balance of $1200. The defendants accepted the proposition with the understanding that the mortgage in Seneca county referred to should, upon investigation, prove to be satisfactory to Noye & Sons.
The most of the machinery was delivered to the defendants prior to February, 1880, and no question is made as to the delivery of the rest afterwards.
On the 11th of February, Noye wrote requesting defendants to send on the mortgage. The defendants replied, February 25th, inclosing a check for $1500, and a description of the mortgage, which included the book and page of the record of the same, and a statement of the quantity of land and improvements, and that the interest had been paid promptly. Three days thereafter Noye & Sons acknowledged the receipt of the letter.
On the 24th of March following, after all the machinery had been delivered, Pierson went to Buffalo, with the mortgage duly assigned, to settle the business with Noye & Sons. He was referred by them to Mr. Kellogg, their bookkeeper, with whom to transact the same. The mortgage matured two years sooner than the defendants had represented in the letter of February 25th, and Mr. Kellogg referred the matter to a member of the firm of Noye & Sons, who informed Mr. Pierson and the bookkeeper that it made no difference, if the mortgage was all right. Kellogg then made a statement of the account, debiting the defendants $4882.50, and crediting them as follows:
Cash........ $1500 00
One-half of freight bill . . . 68 37
Assignment of mortgage . . . . 2120 00
Six months’note to balance . . . . 1194 13
Total..... $4882 50
Settled as above. John T. Noye & Sons,
Kellogg.
Noye & Sons on same day sent the assignment forward for record, requesting the clerk of Seneca county to inform them as to the value of the property. On the 5th of April the clerk wrote them that he was informed $1200 would be a fair value for the property, and on April 25th said it was worth $1500. April 6th, Noye & Sons wrote defendants that they should expect them to make up any deficiency arising from the property, and on the 21st of May following sent to the defendants the mortgage and demanded the amount of money they had been credited for it. This demand not being complied with, Noye & Sons transferred their interest to the plaintiff, who brings this suit,, and thereupon the defendants tendered back the mortgage. The cause was tried in the Superior Court of Detroit, and after the testimony was given the court directed a verdict for the defendants.
We think this ruling of the judge of the Superior Court was correct. The declaration is for goods sold and delivered and not upon a warranty that the security turned out upon the indebtedness was good for the amount for which it was .received; and the only question of importance in the caséis, Was the mortgage received as payment to the amount for which it was turned out ? This, of course, depends upon the fact whether it was so accepted by Noye & Sons or not. The uncontradicted evidence upon that point is that Noye & Sons were to receive the mortgage mentioned as part payment for the machinery. In their letter of October 29th, 1879, they propose to take the mortgage in payment; and in the letter dated May 21st, 1880, in stating how they received the mortgage, say: “We bound ourselves to accept in part payment of the consideration of the contract a first mortgage on farm in Fayette, Seneca county, N. Y., for $2000.” The plaintiffs’ assignors having thus told what they meant in the contract by the language used, precluded any other or different construction.
The only thing Noye & Sons reserved was that they might satisfy themselves as to the mortgage. To enable them to do so, and make investigation, memoranda describing the mortgage and containing reference to the record of the same, were sent to Noye & Sons when called for by them, and three weeks thereafter the defendant Pierson called on Noye & Sons, at the office in Buffalo, for a settlement of the transaction. They did so, and as evidence of the same and the terms thereof, they received from Noye & Sons the statement above given, and sent the assignment to the clerk’s office in Seneca county for record.
A reasonable time seems to have been taken before the settlement to satisfy Noye & Sons as to the mortgage, and if so, it was their duty to ascertain the nature and character and sufficiency of the mortgage, and after making the settle, ment stated I think they should be held conclusively presumed to be satisfied with the mortgage. But whether this should be so or not, it is certain that if they still had a right to return the mortgage and demand payment of the amount thereof in money, they waived that right by their letter of April 6th, wherein they state that they shall expect the defendants to make good any deficiency, and “ this is to notify you we shall look to you for payment; ” and in that letter elected to hold defendants for any loss or deficiency under the contract.
This being the case, the proofs offered by plaintiff’s counsel tending to show a breach of warranty were inadmissible and properly rejected by the court. The facts showed the plaintiff could not recover under his declaration, and the judge of the Superior Court committed no error in taking the case from the jury.
The judgment must be affirmed.
The other Justices concurred. | [
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Cooley, C. J.
The plaintiff sues for being wrongfully threatened with expulsion from the cars of defendant, and compelled to pay fare a second time after he had bought a ticket which the conductor refused to take.
It appears that on September 19, 18S2, the plaintiff and one Goodyear were at Mantón, on the,road of defendant, and about to proceed to the north. They had then been together some days. At Mantón they bought tickets for Traverse City from the agent of defendant. Plaintiff noticed that the ticket given to him was not like that given to Goodyear, and he called the agent’s attention to the fact, and inquired if it was good, and was told it was. In this the agent was mistaken. The ticket was one part of an excursion ticket from Sturgis to Traverse City, and had been canceled from Sturgis to Grand Rapids. The evidence is conflicting as to whether it had not also been canceled from Grand Rapids to Walton, a station north of Mantoh. When the ticket was presented to the conductor he told plaintiff it was not good separated from the other part. He also claimed that it had been used by another person to Walton, and he told the plaintiff he must pay his fare to Walton or he should put him off the cars. The plaintiff at first refused, and was advised by Goodyear to persist in his refusal, but when the conductor took hold of the bell-rope to stop the train, and, as plaintiff says, put his hand on plaintiff’s shoulder, he consented to pay the fare, and did so, talcing the conductor’s receipt therefor. The fare paid was twenty-five cents. The plaintiff then proceeded on his journey.
To show that he was entitled to something more than merely nominal damages the plaintiff gave evidence that he was not well at the time of the occurrence; that he had a chronic diarrhea, and he thought the trouble was greater afterwards than before. It does riot seem, however, to have interfered wfith his business, which was that of a commercial traveler, nor had it kept him from visiting the houses of ill-fame at Cadillac a day or two before. A physician was put upon the stand as an expert, and was asked whether, if a man afflicted with chronic diarrhea, and riding upon a public railroad car, should be taken hold of by the conductor, and under a threat to eject him from the car, the person excited under the influence of it, it would have any effect upon his health. The reply was, that it would be likely to cause relaxation of the bowels temporarily.
In submitting the case to the jury the judge instructed them that if they should find from the evidence that the plaintiff purchased the ticket in question in good faith, and had paid for the same, and only refused to leave the train under an honest belief of having paid his fare, and that the ticket was good from Mantón to Traverse City, and that this belief was induced by the assurances of the agent of the company of whom he purchased the ticket, and if there was nothing upon the face of the ticket which would apprise him of any infirmity in it, then any attempt of the conductor to remove the plaintiff from the car, by the actual taking hold of his person, or laying his hands upon him for that purpose, was an assault and battery, for which the plaintiff had a right to recover any and all damages naturally and legitimatelyresuiting therefrom. Under this instruction the plaintiff had a verdict for $366.61.
In Frederick v. Marquette &c. R. R. Co. 37 Mich. 342: s. c. 26 Am. Rep. 531, it was decided that, as betwmen the conductor and the passenger, the ticket must be the conclusive evidence of the extent of the passenger’s right to travel. No other rule can protect the conductor in the performance of his duties, or enable him to determine wliat he may or may not lawfully do in managing the train and collecting the fares. If, when a passenger makes an assertion that he has paid fare through, he can produce no evidence of it, the conductor must at his peril concede what the passenger claims, or take all the responsibilities of a trespasser if he refuses, it is easy to see that his position is one in which any lawless person, with sufiicient impudence and recklessness, may have him at disadvantage, and where he can never be certain, if he performs his apparent duty to his employer, that he may not be subjected to severe pecuniary responsibility. Such a state of things is not desirable, either for railroad companies or for the public. The public is interested in having the rules whereby conductors are to govern their action certain and definite, so that they may be enforced without confusion and without stoppage of trains; and if the enforcement causes temporary inconvenience to a passenger, who by accident or mistake is without the proper evidence of his right to a passage, though he has paid for it, it is better that he submit to the temporary inconvenience, than that the business of the road be interrupted to the general annoyance of all who are upon the train. The conductor’s duty, when the passenger is without the evidence of having paid his fare, is plain and imperative, and it can serve no good purpose and settle no rights to have a controversy with him. The passenger gains nothing by being put off the car, and loses nothing by paying wdiat is demanded and staying on.
The plaintiff, therefore, in this case, if it w-as found that the ticket he held was not good by reason of former use and cancelment, should have paid his fare when it was demanded, and looked afterwards to the railroad company for the refunding of the money, and for compensation for any trouble he might be put to in obtaining it. And it would have been very prudent and proper for him to adopt this course, even though there was nothing on the face of the ticket to apprise him of the invalidity. If the conductor, who was manager of the train, informed him that for any reason the ticket was one he could not receive, a contest with him over it must generally be very profitless, and therefore unadvisable. But we are all of opinion that if the plaintiff’s ticket was apparently good, he had a right to refuse to leave "the car.
The following cases support Frederick v. Marquette &c. R. R. Co., and some of them in their facts closely resemble the one before us: Townsend v. N. Y. C. & H. R. R. Co. 56 N. Y. 295: s. c. 15 Am. Rep. 419; Chicago &c. R. R. Co. v. Griffin 68 Ill. 499; McClure v. Philadelphia &c. R. R. Co. 34 Md. 532: s. c. 6 Am. Rep. 345; Shelton v. Luke Shore &c. R. R. Co. 29 Ohio St. 214; Downs v. N. Y. & N. H. R. R. Co. 36 Conn. 287: s. c. 4, Am. Rep. 77; Petrie v. Pennsylvania R. R. Co. 42 N. J. Law 449; Yorton v. Milwaukee &c. R. R. Co. 54 Wis. 234: s. c. 41 Am. Rep. 23, and 6 Am. & Eng. R. R. Cas. 322. . Whether the ticket the plaintiff held was fair upon its face was a disputed question in the case, and must depend for its solution upon' the view,taken by the jury of the credibility of the witnesses who testified respecting it..
The medical evidence which was given in the case, respecting the effect of the alleged assault upon the plaintiff’s health, seems to call for some comment. As the assault was a battery only in a technical sense, and there was no pretense of injury except such as might come from mere words— from the mere expression on the part of the conductor, of a determination to put the plaintiff off the car unless he paid his fare — the proposition that it was proper to call expert witnesses to show the possibility of injurious consequences from such words, to the plaintiff’s health, is suggestive of possibilities in the trial of causes which the trial judge may well contemplate with some solicitude. If expert evidence of the sort were admissible in this case, it is difficult to conceive of a case of assault and battery or of any other case in which vexing or provoking words are made use of, where the expert witness may not become an important factor in determining ' the result. But the field for his operations could by no means be restricted to cases in which disturbing words had been made use of; nearly every case of tort is accompanied by some circumstance which is calculated to annoy and vex the party entitled to sue for it; and if the possible effects upon the mind, and through the mind upon the health, are to be the subject of expert investigation and testimony in a case like this, they must be so at the discretion of the parties in all cases, and the medical witness may become as much an incident to the session of a trial court as the jury itself. Should this ever come to be the ease, the parties, in putting their questions to the expert witnesses, should at least be required to take into account — when considering possible consequences — such contemporaneous or nearly contemporaneous facts as may also conduce to the disturbance of health; such, for example, as some which appeared in this case and have been mentioned above.
The judge, in his instructions, evidently attached importance to this expert testimony, and it no doubt conduced to swell the damages awarded.
The case should go back for a new trial.
Sherwood and Campbell, JJ. concurred. Ohampmn, J. did not sit in this case. | [
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Sherwood, J.
The defendant was charged with the crime -of adultery committed with one Yarnella Smith on the 21st day of August, 1883, was tried at the Berrien circuit, and -convicted and sentenced to two years’ imprisonment. A large number of exceptions were taken on the trial to the rulings and charge of the court, upon twenty-nine of which the defendant assigned error; in disposing of thé case, however, but few of them need be considered.
On the trial the prosecuting attorney was permitted to make proof of acts of familiarity and intimacy between the defendant and Mrs. Smith, which occurred over two years before the prosecution was commenced. Such acts, within a réasonable time before the acts complained of, and also occurring very soon • thereafter, so long as they may be regarded as continuous, are competent and admissible testimony ; but those occurring two years before the criminal act charged must be held too remote and it is error to admit them. The defendant’s motion to strike out this testimony should have been granted. People v. Davis 52 Mich. 569, decided at last term ; People v. Jenness 5 Mich. 305.
Mrs. Smith was a competent witness in the case for the People as well as the defendant. Parsons v. People 21 Mich. 512. Of course she could not be compelled to answer if she declined upon the statutory ground. She was not sworn upon either side, and the record does not show that she was in the State at the time of the trial.
The court charged the jury that Mrs. Smith could not be subpoenaed and testify to her guilt, “but the defendant might have subpoenaed her if he was innocent, and she was innocent, and have her swear to that fact i” that he did not do this, and it was a circumstance against him;, and after repeating this in substance several times in the charge, the court further said: “Now, gentlemen, as I said before, take all these familiarities that have been proven to you — take the facts and circumstances as they occurred at that house that day, and the fact that he might have had Mrs. Smith here to testify if he saw fit, and from all these say whether you are satisfied beyond a reasonable doubt that this man at that time did have sexual intercourse with this woman.”
There was not a particle of proof before the court or jury that defendant knew anything about where Mrs. Smith was; he and Mrs. Smith were two principals. The judge declares the law to be that, in such a case, where one of the two is tried it is his duty to call the other as a witness, and his neglect so to do will be taken as a circumstance against him. There is neither reason nor authority for this rule, and the error committed in giving these charges was seriously prejudicial to the rights of the defendant.
It is hardly necessary to notice the other exceptions, as the occasion for them will not be likely to occur on the second trial.
The judgment must be reversed and a new trial granted.
The other Justices concurred. | [
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Butzel, J.
On March 3,1953, Marilyn Ruth Daniels, a 13-year-old girl, plaintiff herein by her guardian, together with 2 other girls had driven from Lansing to Battle Creek to visit a mutual friend. They were guest passengers in a car operated by its owner Jewel Gill. On arrival in Battle Creek in the early evening they drove to the home of one Phyllis Virgil. Thereafter Mr. Gill proceeded across the street to a poolroom. He loaned his car to the girls in order that they might visit Phyllis’ mother-in-law. Plaintiff, sitting in the right front seat, was 1 of 4 girls in the car then being driven by a Mrs. Emma Barber, 15 or 16 years of age. She had no operator’s license. It appeared that they were all unfamiliar with Battle Creek, including Phyllis Virgil who apparently had just recently moved there. However, it also appeared that the latter’s home was on Washington avenue a short distance from the railroad crossing where the accident occurred. En route to the mother-in-law’s home they crossed these tracks. On finding the lady absent from her borne tbe girls went for a ride during which they became lost and sought directions back to the house on Washington avenue. They were told to travel east on Hamblin street to Washington and thence to the right or south.
A block or so south of the intersection of Washington with Hamblin is the railroad crossing in question. It consisted of 3 main tracks with 2 spur tracks a few feet to the north. The main tracks were slightly raised and were guarded by the familiar . white warning posts of crossbuck design equipped with an automatic flashing red light and bell warning apparatus. The poolroom across from Phyllis’ home was on Washington avenue, a short distance south of the tracks. A slight rain was falling though the evidence showed it did not obscure vision. However, the windows were raised.
On turning into Washington from Hamblin the girls proceeded south over the crossing where they were struck by an eastbound freight train running on the middle of the 3 main tracks. The right front portion of the automobile collided with the left front of the engine of the train. Plaintiff lost her left eye and suffered other injuries as a result of the collision. She brought suit in the circuit court for the county of Ingham and secured a judgment on a jury verdict of $25,000. Defendant has appealed after denials of its motions for new trial and judgment non obstante veredicto.
The principle question here concerns defendant’s negligence. It is plaintiff’s contention that the crossing signals required by statute, CL 1948, § 469.8 (Stat Ann § 22.768), either were not working at all or were not working for the statutorily prescribed period. As evidence plaintiff offered 2 categories of testimony, characterized in brief of counsel as follows: First, that she and her witnesses did not hear the statutory signals; second, that while being alert and looking, plaintiff, the driver of the car and the other passengers did not see the moving-signal light required by the statutory regulation.
The pertinent testimony of the driver is as follows :
“Q. You have said that at no time did you see any flashing lights on the crossing, is that right?
“A. No, I didn’t.
“Q. And you were looking?
“A. Yes, I was looking. * * *
“Q. Did you at any time see the headlight of a train?
“A. No, I didn’t.
“Q. Did you at any time hear any whistles?
“A. No, I didn’t.
“Q. Did you at any time hear any bells or gongs ?
“A. No.
“Q. Did you at any time see any flashing lights?'
“A. No.”
This testimony was essentially reiterated by the other occupants of the automobile. They also testified that they were anxious to find Mr. Gill so that they could return to Lansing. Two testified that they were looking straight ahead to where they expected to find the poolroom. They were not looking out of either side of the car as they approached the crossing and 1 occupant testified that she did not even see the white crossbuek sign to which the statutory signals were affixed. While all said they were unfamiliar with the area, they admitted that they had passed over the same tracks a few hours before. They testified that the signals were working after the accident. None saw the train at all. Defendant contends that the evidence offered by plaintiff was-merely negative evidence of any failure of the signals to operate, as opposed to its own positive evidence that they were operating, and therefore was insuffi cient to take the case to the jury as a question of fact.
In order to have a jury question in such instances the cases generally require either positive testimony that the signals were not working or testimony that the signals were not seen or heard accompanied by evidence that a certain degree of attention and care was being exercised .toward the possible area of danger. Mere testimony that the signals were not heard or seen does not, in and of itself, present an issue of fact as to whether or not they were operating. These principles were discussed and summarized in the case of Lambert v. Minneapolis, St. Paul & Sault Ste. Marie R. Co., 209 Mich 107. They have been adhered to in later decisions. See Moreau v. Grandmaison, 220 Mich 238 (affirming judgment for defendant); Mulvaney v. New York Central R. Co., 233 Mich 350 (reversing judgment for plaintiff); Elias v. Collins, 237 Mich 175 (52 ALR 1118) (affirming directed verdict for defendant); Holser v. City of Midland, 330 Mich 581 (reversing judgment for plaintiff); Buchthal v. New York Central R. Co., 334 Mich 556 (affirming directed verdict for defendant); Hudson v. Grand Trunk Western R. Co., 227 Mich 1 (23 NCCA 682) (jury question); Miller v. Manistique & Lake Superior R. Co., 234 Mich 184 (jury question); Patton v. Grand Trunk Western R. Co., 236 Mich 173 (jury question).
Without passing upon.or considering the degree or' extent of attentiveness necessary to raise a jury question, the issue which basically split the Court in Hart v. Grand Trunk Western R. Co., 278 Mich 343, we find a question of fact present in this case. Following the testimony above quoted, there occurred on cross-examination of the same witness:
“Q. The lights that were flashing were those flasher lights and the gong just before you get to the crossing?
“A. No they weren’t on then.”
Here is positive testimony that the signals were not operating properly. Whether or not this statement should be given much weight or credibility in light of all of the other testimony to the effect that the signals merely were not heard or seen, is exclusively a question for the jury and not for this Court. We cannot disturb their finding. Appellant does not contend in this Court that the verdict is against the great weight of the evidence. We must accept the jury’s decision on the disputed question of fact even though we, as triers of facts, might have reached a different result. Steudle v. Yellow & Checker Cab & Transfer Co., 287 Mich 1. Accordingly we need not consider the case of Cinadar v. Detroit, Grand, Haven & Milwaukee R. Co., 193 Mich 38, except to say that it is inapplicable and adequately explained in the Lambert Case, supra, at p 111.
Appellant urges that plaintiff was contributorily negligent as a matter of law. There is no evidence that plaintiff assumed those duties which the plaintiff in Buchthal v. New York Central R. Co., supra, did but failed to exercise and was thereby found “unquestionably guilty of contributory negligence.” At most it was a jury question.
Appellant also contends that the verdict of $25,000 was excessive. Plaintiff was 13 years of age at the time she was injured. As a result of the accident she suffered many abrasions and lacerations about the face and what the doctor described as a skull fracture. The injuries to her left eye necessitated its removal by way of surgery some 16 days later. She suffered pain. She had 144 stitches in her face and was somewhat disfigured. “We are cited to Newell v. Detroit, Toledo & Ironton R. Co., 235 Mich 687, where a verdict of $25,000 was remitted to $15,000. Nothing appears in that opinion except that the 24-year-old plaintiff lost his eye and thereby his earning power. More important, however, it was decided in 1926. On consideration of all of the circumstances and recent awards involving loss of an eye, some of which are collected in 16 ALR2d 3, 130, and supplements, we do not find the verdict in this case excessive.
The judgment is affirmed, with costs.
Carr, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Campbell, J.
Plaintiff sued defendants for levying on and selling certain property, which was, as he claims, used by him in his business of a hack and express-wagon driver in Kalamazoo. The property consisted of horses, vehicles and other articles appurtenant to such a business. The levy was made January 6, 1883, and the sale in the latter part of March. The sheriff accepted him as receiptor for some of the property, and on the 8th of January he replevied the whole of .it, with possibly some trifling exceptions, and retained it until a few days before the sale when he was ordered to deliver it up for want of a replevin bond which he had failed to give.
The court below held the execution void, and held that the property was exempt from levy, and allowed the jury to find, in addition to the value on the day of levy and 7 per cent, interest from that date, special damages, and they found a verdict for $650.
The objection to the execution was that it did not contain the name of the plaintiff. It did, however, contain, in its body, every other descriptive requisite. Beyond this it was properly endorsed with the title of the cause and with the other minutes required by law. Even if the omission of that one descriptive item would have made it irregular if not otherwise supplied, (which is not quite clear to us, and on which we need not pass,) it certainly could not be made void by a clerical omission which left remaining enough to fully identify it. But the endorsement, under our practice, is usual and proper if not necessary, and when put on forms a part of the process sufficiently for all purposes of identification. The writ was sufficient. The court in the charge told the jury there was no proof of any' judgment. But the plaintiff’s counsel themselves introduced this execution and claimed exemption rights against the levy, so that the defendants were not called on to prove the judgment which was fully described in the writ and endorsement.
We do not think the court had a right to determine the fact of exemption and of defendant’s wrong in not allowing it. There was testimony tending to prove that plaintiff disavowed title in some, if not in all, of the property. His own testimony, if believed,. put the valne considerably beyond the statutory limit of exemption, and the verdict of .the jury cannot be reconciled with any reasonable theory that would put the value so low. He could not complain that the officers levied on property which he repudiated, and he could not complain of the loss of any property beyond the statutory limit of $250. In either point of view, this opened some questions of fact.
Evidence was given of a chattel mortgage for $150 made in December, 1882, and payable in one year thereafter. This mortgage was acquired after the execution sale by the execution purchaser, who was the judgment creditor. All of this testimony the court struck .out. If this mortgage was valid,— and upon .this record we cannot tell how far it is so, — it had a very decided bearing on the controversy, both as reducing plaintiff’s interest in the property, and also as affecting his claim that he had been damnified by disturbance in possession and loss of his sources of income. If he had given the mortgagee a right to take possession, as it may be presumed from this record he had, that'might have some significance upon the"probable breaking up of his business,, on the theory advanced for him that he was unable to pay his debts. In the absence of fuller details we can only say it was admissible.
Upon this record we cannot very well consider just how far damages are allowable for interruptions in business caused by levies .on exempt property. The court left the case to the jury in such a way as to enable, and apparently to cause, them to reach what seem to be excessive results. They were first directed to treat the conversion as complete on the taking, which occurred on January 6th, which was the date of the levy, and to allow the value of the property, with seven per cent, interest from that date. They were not restricted in this estimate to the $250 exempted by law. The testimony of several witnesses, and the appraisal on plaintiff’s replevin, put the value very much lower; but he put it much higher, and the jury must have taken a pretty large view of the value. In addition to this, the jury were allowed to estimate plaintiff’s loss by impairing or damaging his business, and the amount of profits which he has lost.
Upon this it may be remarked, in the first place, that it is not very clear how interest and profits both can be allowed. Interest is allowed as a legal compensation for lost use. If it is competent to show greater profits than the interest would cover, both cannot be proper at the same time.
But another very serious fault in the charge is its failure to tell the jury what time should be covered by their estimates. It appears beyond question that, except possibly for a day or so after the levy, the plaintiff was not interrupted in his possession at all down to about the day of sale, and that the possession was soon thereafter, if not at once, held in connection with the chattel mortgage. It is impossible, under any of the estimates shown on the trial, to raise these damages up to the measure of the verdict.
As only the more prominent points were argued, and the questions of testimony as bearing on special damages were not dwelt upon, we shall not discuss them. Some of the testimony appears to have been irrelevant, and bore more on questions of feeling than of law, while, it had probably an influence in swelling the verdict. But we confine ourselves to the points chiefly insisted on.
The judgment must be reversed and a new trial granted.
The other Justices concurred. | [
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Butzel, J.
This case arose through enforcement of the provisions of PA 1941, No 207, as amended (OL 1948 and OLS 1954, §29.1 et seq. [Stat Ann 1952 Rev § 4.559(1) et seq.]), the fire prevention act. After due notice, Joseph A. Childs, commissioner of the Michigan State police, filed a petition in the Ottawa county circuit court in chancery for an order to show cause why defendant, Walter E. Anderson, should not abate a fire hazard by razing the building and removing all rubbish and debris from the premises known as 312 River street, Holland. A like petition was filed in regard to the building at 306 River street, Holland. Attached to the petitions were the determinations of the fire hazard and the orders for abatement thereof. Answers were filed to each petition averring that the buildings did not constitute fire hazards under the law and that the order was arbitrary and unreasonable. By way of further answer and showing of cause why an order should not be entered, defendant asserted that all electrical lines to the buildings had been discontinued, that no gas, oil or other substance commonly used for heating or other purposes were being delivered to the premises, that the flues, chimneys and heating apparatus were not defective and, in any event, not in use, that there was no explosive or inflammable material, waste or other material in or about the premises, which were likely to create combustion, and that there was nothing in or about the premises which, because of its inherent nature, would cause an otherwise preventable fire.
Upon trial the testimony of the witnesses proved these latter allegations of defendant to be true. Photographic exhibits of both the interior and exterior of the structures supplemented the testimony. Each of these houses owned by defendant is 2 stories in height with 1 story additions in the rear. While both are old and not things of beauty they are equal in appearance to many of the modest homes found in the older sections of cities and rural communities. Except for a plumbing concern which had occupied the rear of one for storage, the houses have been unoccupied for some time and appear to have suffered considerable damage through vandalism. The exteriors require some repairs but are in fair condition. It was shown that the chimneys were in bad condition, 1 having fallen on top of the roof, but these were not in use. A very large number of windows have been broken. The interiors have also been damaged to a considerable extent and require repairs. The plaster has been broken in a few places, some boards have been loosened, and a door appears to be off its hingés." A tarpaulin stretches across some windows and there may be places which are oily. There was considerable rubbish but that has been removed. As -noted, utilities are turned off and there is nothing in the houses which Would be likely to bring about spontaneous combustion. The only danger of fire would be that vandals and trespassers might start one. The cost;of repairs or.rehabilitation is not shown but it necessarily must be less than the value of the buildings if properly.) repaired. A witness for plaintiff admitted that, aside from the probability of the building itself taking fire, there was no greater chance that these houses would catch fire than the courthouse in which these cases were heard.
At the close of the proofs, attorney for defendant stated:
“We will make the offer here in open court, to remove any specific item that can be shown within the houses that are constituted and inherent fire hazard. If this tarpaulin is oily it will be taken out, if there is any trash that is oily it will be taken out and the houses will be boarded up securely so trespassers or vandals cannot gain access thereto.”
However, the court refused defendant’s offer and ordered the complete razing of the buildings, though he was initially hesitant about one of them. He did so principally because of the age and dilapidated condition of the 2 buildings and because he felt that boarding up would be but a temporary cure at best as the natural working of the elements would cause further deterioration. He further concluded that no matter how well-intentioned the defendant’s offer, it would not meet the purposes of the act. The cases were consolidated for trial and are treated as one on appeal.
The statute, CL 1948, § 29.1 (Stat Ann 1952 Rev § 4.559 [1]), defines a “fire hazard” as:
“Any building, premises, place or thing which by reason of its nature, location, occupancy, condition or use may cause loss, damage or injury to persons or property by reason of fire, explosion, or action of the elements.”
CL 1948, §29.8 (Stat Ann 1952 Rev § 4.559 [8]) further provides that on inspection for the discovery of the existence of a fire hazard the inspector shall report :
“Any building or premises, either public or private, which for want of repairs, lack of or insufficient fire escapes, automatic or other fire alarm apparatus or fire extinguishing equipment, or by reason of age or dilapidated condition, defective electrical wiring or electrical equipment, defective chimneys, defective gas connections, defective heating apparatus, accumulation of rubbish, waste materials or'inflammable substances or decorations, or from any other condition, or for any other reason whatsoever, may cause an otherwise preventable fire.”
The commissioner may order that the building be repaired, razed, or have such things done to it as would protect the peace, security and safety of persons and property. On the hearing of the order to show cause, the court (CL 1948, § 29.13 [Stat Ann 1952 Eev § 4.559(13)]) “may modify or change the order of the commissioner according to the facts and circumstances as shown by the proofs, or he may affirm the order and direct compliance therewith upon such terms and conditions as he may impose.”
Upon consideration of this statute and its purpose we are of the opinion that the facts in this case do not justify an order that the buildings be razed.
As plaintiff concedes, this statute must be administered with caution. The remedy prescribed should be no greater than is necessary to achieve the desired result. It was shown that the principal and only source of fire would be from trespassers or vandals. To say that the houses are old and dilapidated does not alone justify their razing or make them a nuisance. See 9 Am Jur, Buildings, § 40, pp 234, 235; 39 Am Jur, Nuisances, § 77, p 354. Defendant has offered to remove any inherent fire hazards. Defendant has also offered to board up the windows and in fact states in his brief that it has already been done. Aside from preventing vandalism this would also remove one of plaintiff’s objections described by a witness as follows:
“If the building caught fire, these open windows would give draft and fresh air and speed the fire and spread it very rapidly.”
It has been decided.in a number of cases that something less than destruction of the entire building-should be ordered where such will eliminate the danger or hazard. See 14 ALR2d 92; 9 Am Jur, Buildings, § 40, p 236. The need for repairs and alterations does not in this case constitute the fire hazard and therefore it is not necessary that we order them. The purpose of the statute is to eliminate the hazard, not to make the houses tenantable. This purpose can best be achieved in this instance by action less drastic than razing.
The decree of the circuit court should be modified so as to provide that the order to raze the buildings be affirmed unless defendant within 60 days boards up the windows and other openings so as to keep out trespassers and vandals, and also removes the tarpaulin, if oil soaked, and any other inherent sources of fire. If defendant complies, the order to raze the building shall be annulled and be of no effect. If defendant does not comply, the order shall remain effective. No costs.
Carr, C. J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Kelly, J.
This is an appeal from a $500 judgment, for plaintiff, in a slander case. The case was tried in Wayne county without a jury.
Plaintiff is a white woman and, at the time of accusation, was married. Defendant is a colored woman and separated from her husband. Mr. Hughes Caldwell is also colored, and a married man. All 3 work at the Chrysler factory in Detroit.
Plaintiff alleged that the slander consisted in defendant’s statement to various people that she had observed plaintiff kissing Hughes Caldwell, and further that plaintiff had asked defendant for the use of her apartment for immoral purposes.
Question 1: Does the record support the judgment?
Plaintiff testified and called 3 witnesses in her behalf. Plaintiff’s witness Mildred Kellock, a steward at the plant, testified that the defendant told her she had observed plaintiff kissing Caldwell. She testified:
“Not long after it happened it came up in discussion which it has been discussed a lot in the plant pro and con but Letha says she told the truth. That’s, what she has told me because Sylvia has asked me many times if Letha would apologize she would drop the case because being their chief steward they both came to me and I told Letha what Sylvia has said and Letha would not apologize because she said she wasn’t lying, she told the truth, and she would not apologize because that would make a liar out of her.
“Q. When was the occasion she told you this the first time ?
“A. After the suit came up.
“Q. She never told you before that?
“A. No.”
In-regard to the apartment incident, this witness stated:
“She did not make any remarks to me concerning using her apartment. She did not make any remarks to me in relation to the foreman. As to whether she never made that remark, I heard it discussed amongst people. I didn’t hear it from Letha. There has been considerable discussion about it in the plant.”
Hughes Caldwell, plaintiff’s witness, denied the kissing charges made by the defendant.
Plaintiff’s witness Lucille Tellier, an employee at the plant, testified that plaintiff and defendant left the work table at the same time and when they came back defendant said to plaintiff: “ ‘Catherine and I saw you kissing in the stairway.’ ” She offered no testimony in regard to the apartment incident.
Plaintiff testified:
“I never did kiss Hughes or have anything to do with him or go out on any dates with him.”
In regard to the apartment incident, plaintiff said:
“Q. On about Monday, June 29, 1953, a few days after this last remark she made that you were kissing Hughes, did she make any other remarks to you ?
“A. Something about whorehouse.
“Q. What was it she said?
“A. I don’t know how she said it but she said, ‘You are trying to make a whorehouse out of my apart ment,’ although she has asked me to go there many a time.
“The Court: She said what?
“A. ‘Trying to make a whorehouse out of my apartment.’
“Q. (By Mr. Leader): She said that to you?
“A. Yes.
“Q. That was about when?
“A. Sometime in June.
“Q. Was that in the presence of other employees?’
“A. Yes.
“The Court: Who was present?
“A. Lucille was there, Lucille Tellier was there, she heard it and other girls in the spray booth heard it.”
Plaintiff testified that she had her lawyer write defendant asking defendant to stop spreading the slanderous statements, but that after receiving the letter the defendant continued to spread the slanderous rumors.
Defendant entered a plea of truth and offered evidence tending to prove truth.
Defendant’s witness Theresa G-. Boyle testified that in October, 1951, she heard plaintiff ask defendant for the use of her apartment; that the following week she had a conversation with plaintiff wherein plaintiff informed her “that she had taken her boy friend to her own home and her husband came home unexpectedly and almost caught her.”
Catherine Billingsley was examined by the court. She testified:
“As to whether I remember the date in question when this episode came up, I don’t remember the date but I know it happened. I was with Letha. As to telling you just what I saw, well, I saw this girl sitting here and that fellow over there. They was coming up the stairs and they were • together and they were very close together. What they did I don’t know.
“Q. You didn’t see them kiss each other?
“A. When 2 people get close together you don’t know what is happening.
“Q. They were right in front of you. You have eyes in your head. What did you see ?
“A. Well, he kissed her.
“Q. Did you see him kiss her?
“A. Sure. * * *
“The Court: Now you know definitely they kissed each other?
“A. Well, when they get close together that’s what they did.
“The Court: Are you just guessing because they were close together or did you see them?
“A. I saw them.
“The Court: What else did they do then?
“A. That’s all.
“The Court: Was it á long kiss or a short one.
“A. No.
“The Court: Which was it?
“A. Short.
“The Court: Did they stop on the stairway or continue walking up the stairs ?
“A. Just for a few minutes.”
In regard to the $500 judgment, appellate contends that plaintiff showed no actual damage and only claimed damages because of injury to her good reputation and, also; that the utterances of defendant caused her husband to divorce her.
This Court has held that where the trial judge has the opportunity to see the witnesses and listen to their testimony, and the controlling issue is one of fact, in cases tried by the court without a jury, this Court will not reverse unless the evidence clearly preponderates in the opposite direction. Nagy v. Balogh, 337 Mich 691; Allen v. Grand Trunk Western Railroad Co., 334 Mich 104. We do not believe that the evidence in this case clearly preponderates in the opposite direction, and, therefore, find that the trial judge was justified in finding for the plaintiff.
In regard to the testimony sustaining the $500 damages, this Court has held in Newman v. Stein, 75 Mich 402 (13 Am St Rep 447), and in Pfeiffer v. Haines, 320 Mich 263, that in cases of this kind no special damages need be shown because when the slander consists of a charge of immoral conduct it is actionable per se.
Question 2: Is appellant correct in her contention that the court erred in rejecting certain evidence of witness Boyle and the court file in regard to a previous divorce action in which plaintiff was a party 10 years prior to this case; and further, was this case tried in an atmosphere that discloses a lacle of “judicial calm and impartiality”?
An examination of the record discloses that the court did not err in this regard. The court refused to allow testimony in regard to specific acts of the plaintiff, such as coming to work at various times under the influence of liquor. The court refused defendant’s offer of proof that the witness Theresa G. Boyle would testify that the plaintiff told her that she had become pregnant and had suffered a miscarriage, but did not know by what man she had become pregnant, and that all this happened at a time when plaintiff was unmarried. The court was correct in denying to defendant the right to offer said proofs. !
In Proctor v. Houghtaling, 37 Mich 41, 45, this Court stated:
“In an action of slander there can only be 2 issues, —one of its publication and the other of its justification. Upon the trial, where there is no justification, there may be matters in mitigation, but these are not put in issue because they form no absolute defense.
“It would be very dangerous to allow issues to be made on the trial concerning specific acts of the plaintiff, or specific rumors, or charges against her not going to the direct issue, in the cause. She could have no means of defense against malicious fabrications which are by no means unusual in such cases, and the reputation of the purest persons could easily be ruined or damaged by allowing free scope to such testimony. As has often been remarked, the general reputation of anyone may be expected to be within the knowledge of attainable witnesses at all times, but- it would be impossible to be prepared for all the particular slanders which perjured and malicious witnesses might invent. A large mass of such rubbish has been introduced into this case, without any respectable authority to maintain its reception. The practice is not to be commended.”
This Court cannot agree with appellant that she was denied a fair trial, or that the record proves that' the trial was carried forward in an atmosphere that disclosed a lack of “judicial calm and impartiality.”
The record discloses that there was a very definite difference of opinion between the trial court and the attorney for the appellant in regard as to what was and what was not proper evidence and the court made certain statements in regard to this difference of opinion. But the case was tried without a jury, and we find no reversible error.
Affirmed, costs to appellee.
Carr, C. J., and Biitzel, Smith, Boyles, Reid, and Dethmers, JJ., concurred with Kelly, J.
Sharpe, J., concurred in the result. | [
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Reid, J.
On leave granted (see Michigan Court Rule No 60, § l[b] [1945]), plaintiff appeals in the nature of mandamus from an opinion and an order of the circuit court granting a new trial. We hear the appeal as a motion. See Michigan Court Rule No 70, § 2 (1945). Appellant prays that we direct the trial court to set aside its order (made on plaintiff’s declination to remit $3,000 from the verdict) granting a new trial and that we direct the trial court to re-enter the judgment entered by the clerk on the verdict of $5,000 damages in favor of plaintiff against the defendants. Defendants have not cross-appealed and are limited to a request that the writ should be denied.
Plaintiff sues for damages for malicious prosecution and false imprisonment. The jury returned a verdict for $5,000 for plaintiff, for which sum the clerk entered a judgment. Defendants moved for a judgment for defendants notwithstanding the verdict, and for a new trial on the ground among other things that the verdict was excessive and against the great weight of the evidence. The trial court ordered a remittitur of $3,000. Plaintiff declined to remit the sum of $3,000 from the verdict, whereupon the trial court on December 23, 1954, ordered the judgment set aside and that a new trial he had.
Plaintiff appeals from the order and also from the opinion on which it was based. The opinion was filed December 2,1954, and recited facts and summarized proceedings had in this case before the court, and concluded as follows:
“That leaves only one point for discussion; namely, the second point as to the verdict of the jury being excessive. In this respect, I agree with the position taken by the defendants, having in mind that the plaintiff produced no evidence except his own testimony with reference to injured feelings and shame which would indicate any damage to him or his reputation. He was incarcerated in the jail for a period of 6 hours. He was not injured in his business nor among his friends insofar as this record discloses. He should have been arrested for his refusal to obey the officers when he was improperly parked and was told to move. He was not within his rights, and had he been arrested for that, there would be no liability upon the part of these policemen who were attempting to enforce the law and were being thwarted therein by the plaintiff. It seems to me that $5,000 in damages for a mistake in a charge placed against him, especially when that was done under the advice of a municipal judge, is shocking and is far more than this plaintiff is entitled to recover. This court will require the plaintiff to remit $3,000, leaving a judgment for $2,000 to be entered within 30 days from the receipt of this opinion; otherwise a new trial will be granted to these defendants. If he does file a remittitur of $3,000 within that period of time, then a new trial will be denied. At the end of 30 days, depending upon the action of the plaintiff, the proper order may be presented for entry upon this opinion.”
The court in his charge to the jury read excerpts from the ordinances of the city of Benton Harbor and from the statutes of the State of Michigan, as to the correctness of which such citations we are not called upon to rule.
The court further charged the jury:
“That the offense of false arrest and imprisonment was completed at the beach, and I now charge you that it continued until the release of plaintiff from confinement in the county jail. I charge you that the defendants, the 2 police officers, are liable for. all damages suffered by plaintiff from the time of his arrest until his release. When an officer makes even a lawful arrest he must use care to see that his prisoner is not oppressed and that he must not be treated inhumanely, and if such oppression and inhumane treatment develop while the prisoner is in the custody to which the officer surrendered him, he is liable for all damages suffered, provided, of course, the arrest originally was false and not a legal arrest.”
The court further charged the jury that the mere fact that the defendants could have arrested plaintiff for illegal parking did not justify them in arresting him on the charge of disorderly conduct.
We note that plaintiff persisted in leaving his car at a place at the beach forbidden by the park authorities and that he persisted, after courteous and respectful requests on the part of the officers, in not removing his car from the forbidden spot. The officers took the plaintiff in custody evidently for his wrongful parking; the arrest sheet recited “Offense: Disorderly.” Defendant Guy testified:
“The first charge which I laid against him was a parking violation; the second charge was disorderly conduct; the third charge was refusal to obey a police officer when he was engaged in public interest and safety in directing traffic. I changed the charge of disorderly conduct the next morning. After I had talked to the municipal judge and after I had told him what had taken place down at the beach. I never signed a complaint for disorderly conduct, and no warrant was ever issued, nor was there any complaint for violation of the parking law.”
The complaint and warrant contained the following:
“He, the said Elmer Donovan did refuse to comply with an order of a police officer of the city of Benton Harbor, to-wit: James S. Guy, to remove said motor vehicle from a no parking zone on Jean Klock drive when such officer was guiding, directing, controlling or regulating traffic on said Jean Klock drive, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”
The charge as contained in the complaint and warrant was evidently made on suggestion of the municipal judge.
Evidently the trial judge considered the verdict for $5,000 to be largely punitive rather than for actual damages.
For a decision based upon considerable discussions of authorities of a remittitur required by the court, see Von Essen v. Vos, 333 Mich 644. In the Von Essen Case, among other authorities cited is the case of Hintz v. Michigan Central R. Co., 132 Mich 305, which case also see.
"We herein make no finding of facts to govern a new trial. We do not determine that the actual damages amounted to $2,000.
In view of the fact that there is no showing of actual malice and only malice implied from an arrest for disorderly conduct rather than for viola tion of parking rules, there should have been only a verdict for actual damages, with no exemplary or punitive damages. See Guenther v. Whiteacre, 24 Mich 504; and Wilson v. Bowen, 64 Mich 133.
Plaintiff by his persistent refusal to repark his car invited his arrest for a violation of the parking ordinance. His wrongful conduct invited the disgrace of arrest.
Mandamus is a discretionary writ and a careful examination of the entire record convinces us that the trial court had before it sufficient grounds for considering that the verdict of $5,000 was excessive and sufficient grounds after refusal of remittitur for considering that there should be a new trial. The court did not in any manner abuse its discretion either as to remittitur or as to the matter of a new trial.
The order appealed from is affirmed. The case is. remanded to circuit court for further proceedings. Costs to defendants.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred. | [
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Sherwood, J.
The plaintiff brings his action on the case for injuries received while in the employ of defendants, using machinery which he alleges was unsafe. The defendants are partners, and for many years have been largely engaged in carrying on the business of manufacturing wagons at Buchanan, in this State. They are not mechanics. Their business in the shops, at the time the accident complained of occurred, was under the general management of M. S. Mead, against whose competency for the position nothing appears in this record. Tie had the general superintendence of the entire business at the works, and George McNeil had the oversight and immediate charge of the blacksmith shops in which the injury to plaintiff occurred, and nothing is alleged against his competency and fitness for his position. Various machines for sundry and divers purposes, all connected, with the plaintiff’s business, however, were run and operated in this shop, and quite a large number of men were employed therein for that purpose. The motive power used for propelling the machinery was steam, and there is no complaint but that this was properly managed. For fourteen months before the accident occurred the plaintiff, who was then twenty-three years of age, had been working in the blacksmith shop for the defendants, cutting iron and punching holes in iron plates with the punching-machine, known as the Long & Alstater power press, and by which he claims to have been injured. The machine had been in use in the shop as long as the plaintiff had been there, and was in general use in such business establishments long before plaintiff used it, and he used it for two hours immediately preceding the accident, and when in the shop used it a quarter of the whole time he was employed. The die and punch were both new. The punch had been set twice. Mr. McNeil set it both times, and the plaintiff was present.'
In describing the accident, the plaintiff says: “ I always sat right in front of the machine. I only have a recollection I was punching these plates, and placed one on the gauge out here, (describing the model before him,) sitting in front of the machine, and swung it in, and heard the crash; * * * that is all I know about it. I cannot describe the crash even. * * * I know I did not become unconscious. * * * I don’t know whether I went over or not. I think I threw my head back. I don’t hardly think it threw me from my feet.” One piece of steel went into his eye, another into his cheek, and another into his forehead. The plaintiff further testified that he had no thought of danger at all, in connection with punching the piece of iron, when the injury occurred. Plaintiff further stated he could use the machine and punch as well as Mr. Mcbl eil could; that he understood how to use the machine, and noticed nothing wrong in the way the die was set; noticed the working of the punch; saw nothing wrong with it; never knew there was any defect about the machine or its working ; never had any accident with the machine before ; never saw any indication of an accident; and that the die was always held firm, so far as he could discover.
None of the witnesses testify that the machinery used was more dangerous or unsafe than others of that kind, and the only ground upon which the plaintiff seeks to recover is that the defendants were negligent in using Long & Alstater’s setscrew method in fastening and holding the die; that to use it was negligence. The cause was tried by jury, and under the rulings and charge of the circuit court the plaintiff obtained a verdict for $4383.33. Defendants appeal.
It is unnecessary, under the previous rulings of this Court, to discuss this case at length, or to examine separately each of the 61 assignments of error. But three questions of ini-, portance are necessarily involved. (1) Was the plaintiff injured by the machine of the defendant? (2) Was the-defendant negligent in furnishing the plaintiff with proper and reasonably safe machinery to use ? (3) If they were, was this fact known to plaintiff, and, if it was, did he continue to use the same without protest or objection ?
It may be said the verdict has settled the first question in favor of plaintiff, and this is true if it was based upon testimony properly admitted under a charge properly given by the circuit judge. We shall ..not, however, enter upon an examination of the record upon this point in our discussion of the case, but leave it as the jury has found it.
Upon the second point, it is not claimed that the machinery was not good, sound, and well made; neither does it appear from the record that the plaintiff ever made any'objection to its use, or notified defendants that it was in any respect improper or dangerous for the purposes for which it was used, or anything of the kind. He was in the employ of a company, none of whose members were accustomed to machinery. If the machinery or any of the appendages were dangerous, or one position was more dangerous than another, the plaintiff’s means of knowing that fact were far greater than defendants’. He gave no notice of anything of the kind; in fact, it seems never to have occurred to him that there was any danger.
It is difficult to see how the defendants can be held responsible to a skilled employee for an injury received while using machinery with which he was particularly acquainted, and which neither he nor any other person ever regarded as unsafe. The testimony does not show or tend to show that the machinery, from the use of which the in jury occurred, was defective, either in construction or for want of repair; neither does it appear that anything could have been done to the machine by the defendants to guard against danger or accidents more than was done. All machinery is dangerous to a greater or less extent, and particularly when operated by steam. The defendants had to select the kind of machinery they wished in conducting their business. At this day, when inventions of machinery are of daily occurrence, frequently a large number of different kinds are made to accomplish the same purpose, and great difference of opinion exists as to the bind best adapted to the use intended in the minds of men well skilled in their construction and use. The comparative merits of the different kinds, whether as to safety or utility, are questions most difficult to solve; and to say that it shall be left to a court or jury to determine in any given case which kind a manufacturer shall use in order to avoid liability in case of an accident to an employee while using it, would be imposing a duty upon the court and an injustice upon the party alike intolerable. A manufacturer must be permitted to choose the machinery he desires to use, and to control his business in his own way, provided he does no unlawful act. He may use new or old machinery, according to his liking, and if it is sound, well made, and kept in repair, he will not be liable for an accident occurring to an employee using it, so long as the only cause alleged is that there is a better and safer kind of machinery used for the same purpose.
There is no question in this case but that the in jured party had as much knowledge of the machine and appliances used, and of all the circumstances relating to the machinery and its safety, as did the defendants or their foreman. There is no showing in this case that defendants or their foreman did not use ordinary care and prudence in protecting the plaintiff against dangers not within his knowledge or observation, and the accident of which he complains, and this is all they were required to do. The risks and dangers, whatever they were, so far as the record shows, were voluntarily assumed by the plaintiff, and no question is made but that lie-was fully capable of understanding and appreciating them, and in such case the risk was his, whatever it might be.
No employer, by an implied contract, undertakes that his machinery and appliances are safe beyond a contingency, or even that they are as safe as those of others using the same kind of machinery, “or that accidents shall not result to those in his service from risks which, perhaps, others would guard against more effectually than it is done by him.” Not only did the injured party in the case know all the danger there was in using the machine that the employers or their agents knew, but his position was such that if any change occurred or was made involving an increase of danger, he would be the first to see it; and if he continued his service after such change without protest it would be at his option, and if in jured he would be remediless. “ The «plaintiff must be held to have understood the ordinary hazard attending his employment, and therefore to have voluntarily taken upon himself this hazard when he entered'into the defendants’ service.”
Under the.third point, had the defendants negligently furnished an unsafe machine to the plaintiff to use, under the circumstances of this case he could hardly have failed to have discovered the fact; and if he chose to continue the service after such knowledge, he assumed the consequences of the increased hazard, and he would have no cause against the defendants for injury resulting from such increased hazard.
From what has been said it will be discovered that the plaintiff’s whole theory of liability in this case (which seems to have been adopted by the court) is erroneous, and it therefore becomes unnecessary to consider the various assignments of error based upon the charge.
The judgment must be reversed and a new trial granted.
The other Justices concurred. | [
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R. M. Maher, J.
Plaintiffs appeal as of right from the January 6, 1986, order of the Washtenaw Circuit Court granting defendants’ motion for summary disposition on plaintiffs’ claims of medical malpractice and negligence pursuant to MCR 2.116(C)(7), immunity granted by law. Plaintiffs also appeal that aspect of the circuit court’s order striking, on its own motion pursuant to MCR 2.115(B), plaintiffs’ other claims not subject to governmental immunity.
I. FACTS
Plaintiffs’ claims arise out of the care and treatment provided to Mark Maurer while he was an inpatient at Children’s Psychiatric Hospital, a division of the University of Michigan Hospital. The individually named defendants were staff members at the hospital while Mark Maurer was a patient.
The facts, as set forth in the complaint, are as follows. Mark was an inpatient at Children’s Psychiatric Hospital from July 7, 1981, until May of 1982. He was eight years old at the time of his admission. In the course of his treatment as an inpatient, Mark was repeatedly threatened and sexually assaulted by a fellow patient named "Billy.” Billy was a twelve-year-old resident in the same ward. Defendants knew that sexual assaults had taken place on the ward and were aware that Billy was a threat to the other children. However, defendants failed to prevent or investigate the attacks.
Plaintiffs’ circuit court complaint was filed on October 31, 1983. On December 8, 1983, the parties stipulated to a consolidation of the circuit court claims with claims previously filed in the Court of Claims. The consolidated claims of plaintiffs are denominated as: (1) malpractice; (2) negligence; (3) gross negligence; (4) assault; (5) deprivation of civil rights; (6) intentional infliction of emotional distress; (7) breach of implied contract; (8) defective building and supervision; (9) nuisance; (10) civil conspiracy; and (11) loss of consortium.
On July 15, 1985, defendants filed a motion for summary disposition, alleging that the crux of plaintiffs’ claims was malpractice or negligence and expressing a "sincere” belief that Mark was given proper care during his admission at Children’s Psychiatric Hospital. More significantly for the purposes of this appeal, defendants asserted that they were all immune from tort liability under 1964 PA 170 as amended by 1970 PA 155, MCL 691.1401 et seq.; MSA 3.996(101) et seq., and requested relief under MCR 2.116(C)(7).
A hearing was held on defendants’ motion on December 19, 1985. At the hearing, defendants continued to assert that summary disposition was proper on plaintiffs’ medical malpractice and negligence claims under MCR 2.116(C)(7). Additionally, and for the first time, defendants asserted that summary disposition under MCR 2.116(C)(8) should be granted on plaintiffs’ other claims because they were either redundant or failed to state a claim. The circuit court took the motion under advisement. On January 6, 1986, the circuit court issued an order granting summary judgment on plaintiffs’ malpractice and negligence claims under MCR 2.116(C)(7), citing Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). The trial court also struck plaintiffs’ remaining claims, noting that they were redundant and poorly drawn, citing MCR 2.115. Plaintiffs appeal from that order.
II. GOVERNMENTAL IMMUNITY
A. Applicable Law.
The first matter to be addressed in this appeal is whether the trial court erred by applying the rule of Ross, supra. In Ross, our Supreme Court largely rewrote the law of governmental immunity. However, the Ross Court gave no indication as to whether its new rules would be applicable to pending cases. Plaintiffs’ complaint was filed on October 31, 1983—fourteen months prior to Ross. Defendants’ motion for summary disposition was not filed until July 15, 1985—some six months after Ross.
In Hyde v University of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986), our Supreme Court held that Ross was to have a "limited retroactive application” which the Court explained as follows:
[T]he rules articulated in Ross apply to all cases commenced after January 22, 1985, the date our opinion was issued, and to those cases pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved. [Hyde, supra, 230.]
That rule appears simple on its face. However, as anticipated by the Hyde dissent, it is somewhat more complicated in application.
In Powers v Peoples Community Hospital Authority, 426 Mich 223; 393 NW2d 847 (1986), a case consolidated with Hyde, the complaint was also filed after Parker v City of Highland Park, 404 Mich 183; 273 NW2d 413 (1978), but before Ross. After stating its rule of limited retroactivity, the Supreme Court reasoned:
In Powers, plaintiff’s malpractice claim was filed after Parker was decided. Ross was issued while the case was still pending in circuit court. The court correctly concluded that plaintiff’s claim should be denied pursuant to Ross. [Powers, supra, p 242.
Obviously, the fact that the Powers claim was filed after Parker but before Ross does not dispose of the issue of whether governmental immunity had been preserved. Moreover, somewhat earlier in Powers, the Court had noted that the defendant hospital had moved for summary judgment on the ground of governmental immunity only after Ross was released. Powers, supra, p 236. Some resolution to this problem is provided in footnote 7 of Powers, where the Court explained:
This [post-Noss summary judgment motion] was the first time that the pcha had raised the "defense” of governmental immunity. However, the pcha’s failure to raise the issue in its first responsive pleading did not waive it. See n 35. Plaintiffs complaint, filed prior to Ross, contained sufficient facts to raise a governmental immunity issue, or more specifically, a lack thereof. The complaint indicated that the pcha operated a public general hospital, which was not entitled to immunity from tort liability pursuant to Parker. Moreover, paragraph two alleged that the pcha was a profit-making institution. This allegation was sufficient to invoke the statutory "proprietary function” exception. [Powers, supra, p 236, n 7.]
Footnote 35, in turn, explains:
Unlike other claims of immunity, sovereign and governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability. Ross, supra; Galli [v Kirkeby, 398 Mich 527, 541, n 5; 248 NW2d 149 (1976)]; McCann v Michigan, 398 Mich 65, 77, n 1; 247 NW2d 521 (1976). Compare MCR 2.111(F)(3)(a). [Powers, supra, p 261, n 35.]
Thus, although it is not expressly stated in Powers, we are led to believe that the rule of limited retroactivity allows the issue of governmental immunity to be preserved solely by a plaintiffs pleadings in avoidance thereof prior to Ross. The fine print in which this rule is embodied does some injustice to the irony it promulgates. But then justice would appear to have little to do with a rule that penalizes those plaintiffs who pled most carefully in the tumultuous years prior to Ross. Nevertheless, the pleadings in the instant case, whether by genius or serendipity, have avoided the immediate pitfall of Powers. Here, although the complaint was filed after Parker and before Ross, it does not specifically allege that defendants were not entitled to immunity, nor does it allege that the defendant hospital was profit-making or that it was engaged in proprietary functions.
The complaint in this case does include a number of claims which, if properly stated, might ávoid the effects of governmental immunity. Defendants have alleged that these claims were nothing more than an unsophisticated attempt to circumvent the rule of governmental immunity. Thus, defendants argue that plaintiffs raised the issue of immunity by pleading in avoidance thereof in much the same manner as the Powers plaintiffs.
We would be less than frank to deny our own inclination to view the plaintiffs’ pleadings as an attempt to avoid the effects of governmental immunity. Nevertheless, we are unconvinced that plaintiffs’ pleadings have preserved the issue of governmental immunity in the same manner as that endorsed by the Powers Court. While the profit-making or proprietary function pled in Powers has no ordinary meaning apart from the issue of governmental immunity, the additional claims of the plaintiffs at bar might state causes of action whether pled against a governmental or nongov ernmental entity. We are not prepared to divine the true purposes of plaintiffs in pleading these claims. Such a step would take us beyond the harsh irony of Powers, into its Kafkaesque shadows. We therefore conclude that the issue of governmental immunity was not properly raised and preserved prior to January 22, 1985. Ross is therefore inapplicable to plaintiffs’ claims.
B. The Pre-Ross Immunity of the Governmental Entity.
Since plaintiffs’ claims against the defendant governmental entity were filed subsequent to Parker v City of Highland Park, supra, and since Ross is inapplicable, the issue of governmental immunity must be decided under the rule of Parker. Murray v Beyer Memorial Hospital, 409 Mich 217; 293 NW2d 341 (1980). In Parker, our Supreme Court held that activities conducted by a municipally owned general hospital providing medical services to the public for fees do not constitute a governmental function and therefore are not entitled to immunity. Following Parker, we held' in Churchwell v Regents of the University of Michigan, 97 Mich App 463; 296 NW2d 75 (1980), that the activities of the University of Michigan Hospital, though state-owned, did not constitute a governmental function entitled to immunity. We see no reason to review Churchwell’s interpretation of Parker at this late date. We therefore hold that the defendant governmental entity is not entitled to immunity. The trial court erred by granting summary disposition under MCR 2.116(C)(7) to this defendant.
III. OFFICER IMMUNITY.
A. Applicable Law.
Sovereign or governmental immunity, as noted in the Powers footnote quoted supra, are not affirmative defenses, but rather characteristics of government which prevent imposition of tort liability. It is for this reason that Michigan courts have held that plaintiffs must plead affirmatively in avoidance of sovereign or governmental immunity to state a claim against governmental entities. See Hoffman v Genessee Co, 157 Mich App 1; 403 NW2d 485 (1987). On the other hand, immunity is not an inherent characteristic of individual governmental employees and therefore must be raised as an affirmative defense in responsive pleadings. Hoffman, supra. See also MCR 2.111(F)(3). Thus, defendants argue that they were themselves entitled to raise the issue as to the individual defendants and the issue might therefore have been preserved prior to Ross, although not raised in the complaint.
We fully agree with this aspect of defendants’ argument, though the fact remains that none of the defendants raised the issue of governmental immunity prior to Ross. Defendants acknowledge this fact, but argue further that they might have amended their pleadings to add the affirmative defense of governmental immunity. Defendants point out that, under MCR 2.118(D), an amendment would relate back to the date of their original response, which predated Ross.
There are two problems with this argument. First, defendants have not moved to amend their pleadings either in the trial court, under MCR 2.118(A), or in this Court, under MCR 7.216(A)(1). Moreover, as one commentator has explained, the chief purpose of the rule allowing the relation back of amendments is to determine whether or not the statute of limitations has been satisfied. 1 Martin, Dean & Webster, Michigan Court Rules Practice, pp 474-481. We confess a great deal of trepidation in response to defendants’ invitation to extend this rule from avoidance of the statutes of limitation to avoidance of stare decisis. Finally, excluding gross legal malpractice, to allow a relation back of amendments in this instance would be to entirely nullify the "limited” retroactive application of Ross apparently anticipated in Hyde and Powers. Therefore, addressing only those arguments raised by defendants, we would be inclined to apply pre-Ross law to the claims against the individual defendants. However, giving further consideration to the matter, we believe that it would be grave and perhaps ludicrous error to do so.
Although the matter was given scant attention by the parties in their briefs and arguments before this Court, Ross not only rewrote the law of governmental immunity as applied to governmental entities, but also as to individual employees— sometimes referred to as the law of officer immunity. As explained in Ross:
The governmental immunity act does not address whether or when individual officers, employees, and agents are immune from tort liability. It merely authorizes governmental agencies to defend, indemnify, and insure officers and employees who have committed negligent torts during the course of their employment and while acting within the scope of their authority. §§ 8, 9. Thus, the existence and scope of individual immunity continues to be a creature of judicial decision-making. [Ross, supra, pp 628-629.]
As further explained in Ross, the law of individual immunity was quite settled in Michigan prior to 1979: Officers and agents and employees were immune when engaged in discretionary, as opposed to ministerial, acts which were within the scope of their authority. Ross, supra, pp 625-626, citing Wall v Trumbull, 16 Mich 228, 235-238 (1867).
In 1979, two plurality decisions of our Supreme Court unsettled the law of individual governmental immunity. Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979); Lockaby v Wayne Co, 406 Mich 65; 276 NW2d 1 (1979). Following those decisions, this Court split three ways on the issue of officer immunity. Most panels held that governmental employees are generally immune when the tort occurs in the scope of their employment. See, e.g., Knapp v Moreno, 137 Mich App 769; 359 NW2d 560 (1984), vacated 422 Mich 886 (1985). Other panels held that governmental employees are generally immune when the tort occurs within the scope of their employment, but only if their employment was within a "governmental function” as then defined. See, e.g., Pomi-lee v Detroit, 121 Mich App 121; 328 NW2d 595 (1982), lv den 422 Mich 891 (1985). Still others continued to apply the ministerial/discretionary test established prior to Bush and Lockaby. See, e.g., Fisher v Dep’t of Mental Health, 128 Mich App 72; 339 NW2d 692 (1983), rev’d 422 Mich 884 (1985).
Ross seemingly put an end to the chaos following Bush and Lockaby by reinstituting a modified ministerial/discretionary test for officer immunity. However, if we were to give literal effect to Hyde, the relatively safe haven of Ross would be out of reach and we would be thrown once again into the chaos of the Bush and Lockaby plurality decisions.
The effect of deciding these tort claims under the pre-Ross Michigan law of officer immunity would be alternately fascinating, perverse and paradoxical. Perhaps the first question one might ask is what pre-Ross law applies? Should panel members refer to their own pre-Ross decisions? Should new members of this Court return to the fertile ground of Bush and Lockaby for yet another Michigan common law rule of officer immunity? Might new splits be resolved by a Supreme Court deciding what it might have held if it had never decided Ross? It is one thing to come face to face with irony, stepping through the looking glass is entirely another matter.
We decline to apply Hyde to the issue of officer immunity for the technical reason that the issue was not before the Hyde Court. We decline to apply pre-Ross law to the issue of officer immunity for the simple and practical reason that Michigan had no pre-Ross law of officer immunity. We therefore hold that the individual defendants in this case are subject to the law of officer immunity as set forth in Ross and subsequent decisions of this Court.
B. Application of the Law.
The now-familiar rule of Ross regarding officer immunity is as follows:
Lower level officials, employees, and agents are immune from tort liability only when they are
1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority,
2) acting in good faith; and
3) performing discretionary, as opposed to ministerial acts. [Ross, supra, pp 633-634[ ]
Here there has been no allegation that the individual defendants acted in bad faith, nor is it disputed that the defendants were, at all pertinent times, acting within the scope of their employment. The only remaining issue under Ross is whether plaintiffs have properly pled that defendants were engaged in ministerial, rather than discretionary, acts.
The Ross Court has provided considerable guidance in distinguishing discretionary from ministerial acts:
"Discretionary” acts have been defined as those which require personal deliberation, decision, and judgment. Prosser, [Torts (4th ed)], § 132, p 988. This definition encompasses more than quasi-judicial or policy-making authority, which typically is granted only to members of administrative tribunals, prosecutors, and higher level executives. However, it does not encompass every trivial decision, such as "the driving of a nail,” which may be involved in performing an activity. For clarity, we would add the word "decisional” so the operative term would be "discretionary-decisional” acts.
"Ministerial” acts have been defined as those which constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice. Id. We believe that this definition is not sufficiently broad. An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a nontortious manner. In a nutshell, the distinction between "discretionary” and "ministerial” acts is that the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making. Here too, for clarity, we would add the word "operational” so the operative term would be "ministerial-operational” acts.
Many individuals are given some measure of discretionary authority in order to perform their duties effectively. Therefore, to determine the existence and scope of the individual’s immunity from tort liability in a particular situation, the specific acts complained of, rather than the general nature of the activity, must be examined. The ultimate goal is to afford the officer, employee, or agent enough freedom to decide the best method of carrying out his or her duties, while ensuring that the goal is realized in a conscientious manner. [Ross, supra, pp 634-635.]
Turning again to the complaint, we find that some of the allegations of negligence are directed toward ministerial acts, while others are addressed to more discretionary acts of the individual defendants. In the former category are the following allegations of negligence or malpractice contained in paragraph 21:
21. that Defendants herein were negligent and violated the standards of care required of them as professionals in the care, treatment and housing of Mark Maurer during his stay at the said Children’s Psychiatric Hospital in the following manner:
a. Failed to ensure that Mark Maurer was free from physical and emotional harm through physical or sexual assaults and. abuse by fellow patients at said hospital.
c. Failed to properly supervise the patients on the ward or floor where Mark Maurer was a resident to ensure his safety.
d. Failed to properly investigate complaints and information regarding threats, physical and sexual assaults, and abuse upon Mark Maurer which were brought to their attention by Mark Maurer and his parents.
In our view, the staff of a psychiatric hospital may exercise considerable judgment or deliberation in deciding whether to provide inpatient care and what the nature of the care, i.e., the treatment plan, will be. However, once the decision has been made to provide such care, it must be carried out in a conscientious manner. Bolton v Jones, 156 Mich App 642; 401 NW2d 894 (1986). It cannot seriously be contended that defendants retained discretion to allow or ignore repeated physical or sexual assaults upon patients entrusted to their care. We hold that plaintiffs have properly pled that the negligent acts of the individual defendants occurred in the course of ministerial duties.
Since the pleadings establish that the individual defendants were acting in the course of ministerial duties during some of the acts of negligence, they are not entitled to officer immunity under Ross. The trial court erred in granting summary disposition to the individual defendants under MCR 2.116(C)(7).
IV. THE ORDER OF SUMMARY DISPOSITION ON PLAINTIFFS’ ALTERNATIVE THEORIES.
As we have previously noted, plaintiffs have leveled eleven separate claims in their complaint —each arising out of the same transaction or occurrence. After disposing of plaintiffs’ malpractice and negligence claims under a theory of governmental immunity, the trial court took exception to the "unconventional-practice [sic] of the plaintiffs in raising a multiplicity of purported causes of action from the same series of incidents . . . .” On its own motion, the trial court then proceeded to strike plaintiffs’ claims under these alternative theories, citing MCR 2.115. On appeal plaintiffs take exception to the trial court’s action in doing so.
The Michigan Court Rules provide in pertinent part:
(B) Motion to Strike. On motion by a party or on the court’s own initiative, the court may strike from a pleading redundant, immaterial, impertinent, scandalous, or indecent matter, or may strike all or part of a pleading not drawn in conformity with these rules. [MCR 2.115(B).]
Here, the trial court ruled that plaintiffs’ alternative theories were not properly pled; that they failed to state claims upon which relief may be granted. MCR 2.116(C)(8).
We find no error in plaintiffs’ election to plead various types of claims based upon the same transaction or occurrence. See, generally, 2 Martin, Dean & Webster, Michigan Court Rules Practice, pp 28-33. We are inclined to agree with the trial court’s conclusion that plaintiffs’ alternative theories were not properly drawn. On the other hand, we also note that plaintiffs had previously filed a motion to amend their complaint. Furthermore, we are aware that Michigan’s liberal rule of amended pleadings is well-established under MCR 2.118(A)(2) and case law. Commodities Export Co v Detroit, 116 Mich App 57; 321 NW2d 842 (1982). We conclude that it was an abuse of discretion on the part of the trial court to strike the alternative theories under these circumstances without a hearing. Commodities Export Co, supra. Nevertheless, we do not preclude the trial court from striking any or all of these claims upon remand after affording plaintiffs a hearing on their motion.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Costs to plaintiffs.
As discussed in Part hi, infra, we take no position on whether these claims do state causes of action or are subject to summary disposition under MCR 2.116(C)(8).
As an aside, it should be noted that, if we were to apply the pre-Boss rule of the majority of the panels of this Court, the positions of counsel at oral argument would be perverse. Plaintiffs, who urged that pre-i?oss law should prevail, would find that there was no liability on the part of the individual defendants and, hence, no vicarious liability on the part of the governmental entity. Defendants, of course, argued contrary to this result.
It is not alleged that any tortious act was committed by the members of the board of regents in their individual capacities.
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Per Curiam.
Respondents appeal as of right the-trial court’s order affirming the Insurance Commissioner’s order. Intervenors-cross-appellants cross-appeal. We affirm in part and reverse in part.
On December 16, 1979, the Insurance Commissioner issued a notice advising Lawyers Title Insurance Corporation and its affiliates, Wayne-Oakland Title Agency, Lincoln Title Agency Company, and Interstate Title, Incoporated, that hearings were to be held to determine whether their actions violated state antitrust, unfair competition and insurance laws as well as federal real estate laws. Chicago Title Insurance Company, Transamerica Title Insurance Company, and Commonwealth Land Title Insurance Company intervened in the hearings before the Insurance Commissioner; therefore, these agencies shall be referred to as intervenors.
The hearings began on February 9, 1981, and ended on July 9, 1982. Following extensive briefs by all the parties involved, the hearing officer issued a 110-page proposed decision, concluding that respondents violated MCL 500.1208, 500.2017 and 500.2066; MSA 24.11208, 24.12017 and 24.12066, but not MCL 500.1242(3),. 500.1243 and 500.2012; MSA 24.11242(3), 24.11243 and 24.12012 and not Insurance Bureau Rule 500.4. The parties filed objections to these proposed findings of fact and the commissioner along with the hearing officer heard oral arguments. On March 19, 1984, the Insurance Commissioner issued her final opinion and order. Therein, she reversed the hearing officer’s decision only insofar as he concluded that respondents had violated MCL 500.2066; MSA 24.12066. Moreover, the Insurance Commissioner concluded that respondents, other than Lawyers Title, violated MCL 500.1207(3); MSA 24.11207(3). The commissioner fined Wayne-Oakland, Lincoln and Interstate $100 for violating MCL 500.1207(3); MSA 24.11207(3) and $500 for violating MCL 500.2017; MSA 24.12017. The commissioner also fined Lawyers Title $1,000 for violating MCL 500.2017; MSA 24.12017 under two different counts of the complaint. Finally, the commissioner issued a cease-and-desist order requiring the real estate brokers, who were also shareholders in Wayne-Oakland, Lincoln and Interstate, to divest themselves of their interest in these agencies.
Respondents appealed to the circuit court, claiming that they had not violated MCL 500.2017; MSA 24.12017 and that the proceedings below were unfairly instituted and conducted. Wayne-Oakland, Lincoln and Interstate also appealed the commissioner’s finding that they had violated MCL 500.1207(3); MSA 24.11207(3). Intervenors cross-appealed, claiming that the commissioner should have found that respondents also violated other provisions of the state Insurance Code as well as state antitrust and federal real estate laws. The circuit court affirmed the commissioner’s opinion and order.
As noted above, respondents now appeal and intervenors cross-appeal to this Court. We note that the parties do not dispute the commissioner’s factual findings; instead, they challenge the commissioner’s interpretations of MCL 500.1207(3) and 500.2017; MSA 24.11207(3) and 24.12017 and her application of those statutes to the facts in this case.
Before reaching the merits of the parties’ claims, a brief factual explanation is required. Before 1974, real estate brokers and agents who referred their clients to a title insurance company often received a commission from that title insurance company. In 1974, the United States Congress passed the Real Estate Settlement Procedures Act (respa), 12 USC 2601 et seq., which prohibited real estate agents and brokers from receiving referral fees when a federally-related mortgage was involved. To avoid violating respa directly, some real estate brokers organized their own title insurance companies to which they referred their real estate customers. As shareholders in these title insurance companies, the real estate brokers received dividends based on the title insurance company’s profits which were derived from their referrals. For example, in this case, Wayne-Oakland’s, Interstate’s and Lincoln’s shareholder-real estate brokers divided their respective company’s stock in proportion to the amount of referral business expected to be generated by each shareholder-real estate broker.
In the mid-1970s, Lawyers Title recognized that title insurance agencies with real estate brokers as owners would have "guaranteed” title insurance business from their respective real estate agencies. Lawyers Title then entered into an agreement with the other respondents whereby those respondents became the exclusive agents of Lawyers Title. Lawyers Title did title searches and issued insurance policies for the other respondents; in turn, they earned profits and paid substantial dividends to their shareholder-real estate brokers. We note that the commissioner found that only two of the other respondents’ owners were not real estate brokers.
We now turn to the applicable standards of review in this case. The decision of an administrative agency should be affirmed if it is supported by competent, material, and substantial evidence and is not contrary to law. Const 1963, art 6, § 28. See also Farmers State Bank of Concord v Dep’t of Commerce, Financial Institutions Bureau, 77 Mich App 313, 322-324; 258 NW2d 496 (1977), lv den 402 Mich 864 (1978). We also give great weight to the Insurance Commissioner’s interpretation of a statute which she is charged with enforcing. Michigan Life Ins Co v Comm ’r of Ins, 120 Mich App 552, 558; 328 NW2d 82 (1982), lv den 417 Mich 1077 (1983). Finally, our Court has often recognized that the insurance industry is of great public interest and that, therefore, insurance laws are to be liberally construed to favor the interests of the public. Id.
We now address the parties’ claims. Lawyers Title claims that the Insurance Commissioner erred when she concluded that it violated MCL 500.2017; MSA 24.12017, which provides:
The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance:
Issuing or delivering or permitting agents, officers, or employees to issue or deliver, agency company stock or other capital stock, or benefit certificates or shares in any common law corporation, or securities or any special or advisory board contracts or other contracts of any kind promising returns and profits as an inducement to insurance.
The Insurance Commissioner held that Lawyers Title violated this section twice. First, Lawyers Title violated this section when it executed exclusive agency contracts with the other respondents and, second, when it "permitted” the other respondents to issue stock to the shareholder-brokers. The Insurance Commissioner also found that the other respondents violated this section when they paid dividends to their shareholders.
The parties in this case differ over the application of the phrase "inducement to insurance.” Respondents claim that inducement to insurance means inducement to purchase insurance (i.e., inducement to the insured). The intervenors and the Insurance Commissioner argue that inducement to insurance can be read more broadly. Each party relies on MCL 500.2066(1); MSA 24.12066(1) to support its interpretation. That section provides:
No insurer, by itself or any other party, and no insurance agent or solicitor, personally or by any other party, transacting any kind of insurance business shall offer, promise, allow, give, set off or pay, directly or indirectly, any rebate of, or part of, the premium payable on the policy or on any policy, or agent’s commission thereon, or earnings, profit, dividends or other benefit founded, arising, accruing or to accrue thereon, or therefrom, or any other valuable consideration or inducement to or for insurance, on any risk in this state now or hereafter to be written, which is not specified in the contract of insurance; nor shall any such insurer, agent or. solicitor, personally or otherwise, offer, promise, give, sell, or purchase any stocks, bonds, securities or any dividend or profits accruing or to accrue thereof, or other thing of value whatsoever as inducement to insurance or in connection therewith which is not specified in the policy contract.
The Insurance Commissioner held that the respondents in this case did not violate § 2066(1) because that section prohibits actions by insurers to induce an insurance purchaser (i.e., an insured) to purchase a policy. The commissioner and the interve-nors argue on appeal that § 2017 and § 2066 can be interpreted differently because the penalties for violating each section differ. Compare MCL 500.2038; MSA 24.12038 with MCL 500.2066(2)-(3) and 500.2069; MSA 24.12066(2)-(3) and 24.12069. Moreover, while § 2066(1) refers to inducements to insurance "not specified in the policy contract,” the commissioner and the intervenors note that §2017 contains no such language. This is important because the policy contract is executed between the insured and the insurer. While the distinctions made by the commissioner and in-tervenors are apparent from a comparison of these statutes, we find that inducement to insurance, an ambiguous phrase, must be construed to effect the Legislature’s intent. Hinton v Parole Bd, 148 Mich App 235, 239-240; 383 NW2d 626 (1986). We conclude that the phrase inducement to insurance in § 2017 should be read consistently with the similar phrases in MCL 500.2024 and 500.2066; MSA 24.12024 and 24.12066. Natsch v City of Southfield, 154 Mich App 317, 321-322; 397 NW2d 294 (1986), lv pending; Todd v Textron, Inc, 140 Mich App 412, 420-421; 364 NW2d 718 (1985), lv den 423 Mich 852 (1985). Construing the statutory scheme as a whole, we can only conclude that inducement to insurance means inducement to the insured to purchase insurance. Id. MCL 500.2017-500.2025 and 500.2066; MSA 24.12017-24.12025 and 24.12066. Hence, we accept respondents’ position that they did not violate § 2017 because they did not offer insureds stock or other contracts promising a return or profit as an inducement to purchase insurance. Consequently, we reverse the commissioner’s order that respondents violated § 2017 as well as the fines imposed for those violations. Farmers State Bank of Concord, supra. We decline to reach the parties’ other arguments on this issue.
The other respondents also argue that the Insurance Commissioner erred when she found that they violated MCL 500.1207(3); MSA 24.11207(3), which provides:
Except as provided in sections 1212 and 1860 and subsection (4), an agent shall not reward or remunerate any person for procuring or inducing business in this state, furnishing leads or prospects, or acting in any other manner as an agent.
The commissioner held that the other respondents violated § 1207(3) when they paid dividends to their shareholder-owner-brokers based upon the number of shares owned by each broker. It must be remembered that the stock was originally distributed to reflect the amount of business each broker would refer.
The other respondents claim that the commissioner’s holding would effectively ban all closely held title corporations whose shareholders would naturally refer their associates to their corporation and, in turn, receive dividends. We disagree. In this case, Lawyers Title executed an exclusive agency agreement with the other respondents. The respondents were organized to reward or remunerate the other respondents’ shareholder-owner-brokers as nearly as possible for their expected referrals. This factual situation is obviously unique and the commissioner clearly did not intend her holding to apply to all closely held corporations because she only required the owner-shareholder-brokers to divest themselves of their interest in the respondent corporations. Her holding did not apply to nonbroker shareholders of respondents.
The other respondents also claim that § 1207(3) was only intended to apply to monetary rewards for referrals to persons who are not licensed insur- anee agents and not to forbid distribution of bona fide corporate dividends. Respondents fail to point out that the corporate dividends which they characterize as bona fide were also found by the commissioner to be a reward or remuneration for their shareholder-brokers to procure business. We further agree with the commissioner that the fact that the brokers might not receive dividends in direct proportion to their referrals is irrelevant under § 1207(3). The important facts are that the brokers were receiving dividends from respondents for procuring title insurance business and that they were receiving these dividends for the amount of title insurance business they were expected to refer.
Finally, the other respondents claim the commissioner’s holding that they violated § 1207(3) is inconsistent with her holding that they did not violate respa. We find that respa, a federal law enacted after § 1207(3), is not dispositive on the issue of how this Court should interpret § 1207(3), absent preemption. Respondents do not argue that respa preempted § 1207(3). We agree with the commissioner’s findings that Wayne-Oakland, Lincoln, and Interstate violated § 1207(3) and we uphold the $100 fines imposed.
Respondents next claim that the Insurance Commissioner announced a new rule by applying § 1207(3) to their activities and, therefore, the commissioner should have proceeded by rule-making rather than by initiating a contested case. Respondents claim that the practice of having broker-owned title companies was commonplace. This statement of the commissioner’s findings is misleading. What the commissioner did find is that, prior to the enactment of respa in 1974, many real estate brokers were able to benefit from the referral of title insurance business by negotiat ing the payment of a commission or "kickback” for each referral. After réspa became law, real estate brokers sought alternative means of benefitting from real estate referrals which they controlled. Many of the brokers, including respondents and intervenors, set up their own title agencies so that they could continue to profit from their referrals by sending their customers to their own agencies once direct kickbacks had been forbidden. None of the respondent agencies started doing business prior to 1975.
It appears that in 1975, attorneys for the in-tervenors brought their doubts concerning the legality of the practices of respondents to the attention of the Insurance Bureau. The bureau, with the assistance of intervenors’ attorneys, formulated a questionnaire which was circulated to title insurance agencies. The results of the survey were analyzed and a report was issued by the bureau in 1976 entitled Real Estate Broker Ownership of Title Insurance Agencies: Consumer-Protection Imperatives. This report was highly critical of broker ownership of title agencies.
This report led to the issuance on June 3, 1977, by Insurance Commissioner Thomas Jones, of an interpretive guideline, Bulletin 77-2. The bulletin was addressed to all title insurers and title agents licensed to do business in Michigan, and it concluded that broker ownership of title insurance agencies violated various provisions of Michigan law:
Among the statutes and regulations relevant to this inquiry are those which prohibit indirect rebating and restrict controlled business, those which require a licensed agent to be actively involved in the solicitation of business, and those which prohibit unfair methods of competition and unlawful restraints of trade. MCL 500.1204(3)[,] 500.1205(1)[,] 500.1207(3) and (5)[,] 500.1208[,] 500.1242(1), (2) and (3)[,] 500.2001 [et seq.,] 500.2066 [MSA 24.11204(3), 24.11205(1), 24.11207(3) and (5), 24.11208, 24.11242(1), (2) and (3), 24.12001 et seq., 24.12066], and R 500.4 (formerly, R 501.4) of the Michigan Administrative Code. The formation and operation of a title insurance agency controlled by real estate brokers to accommodate the placement of their own business is not compatible with all of these standards.
The bulletin also spelled out the bureau’s future course of action toward such agencies:
No partnership or corporation shall qualify for licensure as a title insurance agent if such partnership or corporation is owned or controlled, directly or indirectly, by one or more real estate brokers (herein, controlling real estate brokers) licensed under the provisions of 1919 PA 306, as amended, MCL 451.201 [et seq.; MSA 19.791 et seq.], and it reasonably appears that a primary purpose of such partnership or corporation, if a license is granted, will be to issue title insurance policies or commitments with respect to real property purchased or sold by persons represented by one or more of such controlling real estate brokers or their employees.
These guidelines for determining qualification for initial licensure shall also be used to determine whether presently licensed title insurance agents and title insurers have violated Chapters 12 and 20 of the Insurance Code of 1956, as amended, and are thus subject to proceedings pursuant to those chapters.
While respondents point out that the bulletin did not have the force of law because it was not issued pursuant to public hearings or comment, it certainly put respondents on notice as to the bureau’s position regarding respondents’ practices. Lawyers Title cautiously acknowledged the impact of the bulletin by not entering into any insurance contracts with broker-owned agencies after its issuance.
The Insurance Commissioner instituted proceedings against respondents on December 6, 1979. Contrary to respondents’ allegations, we find that the commissioner’s interpretation of § 1207(3) did not announce a new rule. Moreover, even if it had, we find that the commissioner’s decision to proceed by way of a contested hearing or adjudicative proceeding rather than a rule-making proceeding was not an abuse of discretion. See National Labor Relations Bd v Bell Aerospace Co, Div of Textron, Inc, 416 US 267; 94 S Ct 1757; 40 L Ed 2d 134 (1974); American Way Life Ins Co v Comm’r of Ins, 131 Mich App 1; 345 NW2d 634 (1983), lv den 419 Mich 937 (1984); Michigan Life Ins Co v Comm’r of Ins, 120 Mich App 552; 328 NW2d 82 (1982), lv den 417 Mich 1077 (1983).
Respondents also claim that the commissioner’s interpretation of § 1207(3) should be given prospective effect only. As a general rule, a judicial decision is given retroactive effect. Tebo v Havlik, 418 Mich 350, 360; 343 NW2d 181 (1984), reh den 419 Mich 1201 (1984). Where a judicial interpretation changes settled law, our courts favor a rule of limited retroactivity, applying the new rule to the case before it and to pending and future cases. Id. Finally, a decision may be applied prospectively only when a newly-announced rule would have a harsh effect because of reliance upon the old rule. Moorhouse v Ambassador Ins Co, Inc, 147 Mich App 412, 421-422; 383 NW2d 219 (1985), lv den 425 Mich 856 (1986). We believe similar rules should apply to the quasi-judicial process of a contested hearing. Given the facts of this case, discussed above, we cannot say that the commissioner abused her discretion when she applied § 1207(3) to Wayne-Oakland, Lincoln and Interstate.
Respondents also claim that the Insurance Commissioner discriminated against them when she chose to bring proceedings against them but not against others, including intervenors, engaged in similar conduct. Having reviewed the record, we find that the decision to charge respondents with violating the insurance laws was not based upon a suspect classification and was not a decision by the commissioner to prosecute respondents to the exclusion of others engaged in the same conduct. Michigan Life Ins Co, supra, p 563; Oakland Co Prosecutor v 46th District Judge, 76 Mich App 318, 330-331; 256 NW2d 776 (1977). Instead, the commissioner’s decision was based upon the Insurance Bureau’s conclusion that, given its limited resources, , it should prosecute the agencies (respondents) which controlled the most business in the Detroit metropolitan area, where the problem of broker controlled agencies was the greatest.
We now turn to intervenor-cross-appellants’ arguments on appeal. Intervenors first argue that the commissioner erred when she reversed the hearing officer’s finding that respondents had violated MCL 500.2066(1); MSA 24.12066(1), which provides:
No insurer, by itself or any other party, and no insurance agent or solicitor, personally or by any other party, transacting any kind of insurance business shall offer, promise, allow, give, set off or pay, directly or indirectly, any rebate of, or part of, the premium payable on the policy or on any policy, or agent’s commission thereon, or earnings, profit, dividends or other benefit founded, arising, accruing or to accrue thereon, or therefrom, or any other valuable consideration or inducement to or for insurance, on any risk in this state now or hereafter to be written, which is not speciñed in the contract of insurance; nor shall any such insurer, agent or solicitor, personally or otherwise, offer, promise, give, sell, or purchase any stocks, bonds, securities or any dividend or profits accruing or to accrue thereon, or other thing of value whatsoever as inducement to insurance or in connection therewith which is not speciñed in the policy contract. [Emphasis supplied.]
Emphasizing the italicized language of the statute, the commissioner found that § 2066(1) was directed at the sellers and purchasers of insurance. The commissioner noted that her interpretation was consistent with Michigan law construing predecessors to § 2066. Citizens’ Life Ins Co v Comm’r of Ins, 128 Mich 85; 87 NW 126 (1901); State Life Ins Co v Strong, 127 Mich 346; 86 NW 825 (1901). OAG, 1941-1942, No 20213, p 179 (May 29, 1941). Other cases not cited by the commissioner also support her construction. Northern Assurance Co v Meyer, 194 Mich 371; 160 NW 617 (1916); Hef-fron v Daly, 133 Mich 613; 95 NW 714 (1903). OAG, 1945-1946, No 0-3658, p 392 (June 25, 1945). Moreover, the Insurance Bureau interpreted § 2066 as preventing the splitting of a commission with an insured and as preventing rebating (i.e., the insured being repaid part of the charge for the purchase of insurance). We accept the commissioner’s interpretation of § 2066(1). In doing so, we specifically note that the language of that section focuses on inducements "not specified in the policy contract” or "not specified in the contract of insurance.” Because the contract is executed between the insurer and the insured, it is clear that § 2066 was intended to apply to situations where1 the insured was induced to purchase insurance because some part of the premium would, in some manner, be returned to him.
Intervenors next claim that the other respondents violated MCL 500.1208; MSA 24.11208, which provides:
An agent, during any 12-month period, may not effect insurance upon his own property, life or other risk and the property, life or other risk of his employees, employer or business associates, in excess of 15% of the total premium which he effected during that period.
The intervenors claimed that the business referred by respondents’ broker-owners was actually the business of respondents and that the brokers’ real estate clients were the brokers’ business associates. The commissioner found that the other respondents did not write insurance policies for business associates when they insured their owner-shareholder-brokers’ real estate clients. We agree with the commissioner’s conclusion.
This section prevents an agent from using his license to obtain for himself and entities in which he has a financial interest a preference in the premium rate because he receives benefits (commissions or discounts) on the policies written. See, e.g., Quetnick v McConnell, 154 Cal App 2d 112; 315 P2d 718 (1957). We note that the term "business associates” should be read to include the same type of a relationship as between the agent and his employer or employee. Dickinson Co Memorial Hospital v Northern Professional Emergency Physicians, 141 Mich App 552, 557; 367 NW2d 833 (1984). We believe that the relationship in this case (assuming the brokers are agents for purposes of this statute), between the brokers and their real estate clients is not the same as the ongoing mutually beneficial economic relationship between an agent and his employees or employers and even himself. We find that the commissioner’s interpretation of § 1208 furthers the purpose of the statute and we affirm her conclusion that none of the brokers’ clients were business associates of the brokers and, in turn, respondents.
Intervenors also claim the Insurance Commissioner erred when she held that she had no jurisdiction to consider respondents’ alleged violations of respa and state antitrust laws in determining whether respondents’ licenses should be revoked. MCL 500.1242; MSA 24.11242 provides:
(1) The commissioner shall refuse to grant a license to act as an agent, a solicitor, an insurance counselor or an adjuster to an applicant who fails to meet the requirements of this chapter. Notice of the refusal shall be in writing and shall set forth the basis for the refusal. If the applicant submits a written request within 30 days after mailing of the notice of refusal, the commissioner shall promptly conduct a hearing in which the applicant shall be given an opportunity to show compliance with the requirements of this chapter.
(2) The commissioner, after notice and opportunity for a hearing, may suspend or revoke the license of an agent, solicitor, insurance counselor or adjuster who fails to maintain the standards required for initial licensing or who violates any provision of this act.
(3) After notice and opportunity for a hearing, the commissioner may refuse to grant or renew a license to act as an agent, solicitor, adjuster or insurance counselor if he determines by a preponderance of the evidence, that it is probable that the business or primary occupation of the applicant will give rise to coercion, indirect rebating of commissions or other practices in the sale of insurance which are prohibited by law.
(4) Without prior hearing, the commissioner may order summary suspension of a license if he finds that protection of the public requires emergency action and incorporates this finding in his order. The suspension shall be effective on the date specified in the order or upon service of a certified copy of the order on the licensee, whichever is later. If requested, the commissioner shall conduct a hearing on the suspension within a reasonable time but not later than 20 days after the effective date of the summary suspension unless the person whose license is suspended requests a later date. At the hearing, the commissioner shall determine if the suspension should be continued or if the suspension should be withdrawn, and, if proper notice is given, may determine if the license should be revoked. The commissioner shall announce his decision within 30 days after conclusion of the hearing. The suspension shall continue until the decision is announced. [Emphasis supplied.]
We agree with respondents’ claim that the unambiguous language of § 1243(3) applies to the commissioner’s decision to grant or renew a license; in contrast, § 1243(2) applies to the commissioner’s decision to suspend or revoke a license. Where statutory language is clear, judicial construction is neither required nor permitted. Attard v Adamczyk, 141 Mich App 246, 250; 367 NW2d 75 (1985). This case involved the commissioner’s decision to suspend or revoke respondents’ licenses; it did not involve the decision to grant or renew respondents’ licenses. Consequently, § 1242(3) does not apply to this case. While we note that this was not the commissioner’s reason for finding that she did not have jurisdiction to consider respa and state antitrust violations, we affirm her decision as reaching the right result for the wrong reason. Warren v Hewlett, 148 Mich App 417, 426; 383 NW2d 636 (1986). We further note that intervenors do not contest the commissioner’s ruling that under § 1242(2) she was only empowered to consider violations of the Insurance Code and not of respa and state antitrust laws in determining whether respondents’ licenses should be suspended or revoked.
Finally, intervenors claim that the Insurance Commissioner erred when she concluded that respondents had not violated MCL 500.2012; MSA 24.12012, which provides:
The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance:
Entering into any agreement to commit, or by any concerted action committing, any act of boycott, coercion or intimidation resulting in or tending to result in unreasonable restraint of the business of insurance.
The Insurance Commissioner found that no one applied pressure to the respondents’ broker-owners to direct business to Lawyers Title. Instead, the broker-owners (respondents) directed business to Lawyers Title because it was in their financial interest to do so. The commissioner further found that the exclusive agency agreement executed between Lawyers Title and respondents was standard practice in the insurance industry. The commissioner also found that agreements which provide inducements for persons to deal with certain companies do not constitute boycotts as to other companies. Proctor v State Farm Mutual Automobile Ins Co, 182 US App DC 264; 561 F2d 262 (1977), vacated and remanded on other grounds 440 US 942; 99 S Ct 1417; 59 L Ed 2d 631 (1979). We hold that the commissioner’s findings were supported by competent, material and substantial evidence and, therefore, we affirm them. Farmers State Bank of Concord, supra. See also Baldwin v Escanaba Liquor Dealers' Ass’n, 165 Mich 98, 110-115; 130 NW 214 (1911), and Nationwide Mutual Ins Co v Comm’r of Ins, 129 Mich App 610, 619; 341 NW2d 841 (1983), lv den 419 Mich 895 (1984). We note that the Insurance Commissioner may rid the industry of unfair trade practices not specified in the Insurance Code by proceeding under MCL 500.2043; MSA 24.12043.
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Per Curiam.
Plaintiff, Daniel MacDonald, appeals from a grant of accelerated judgment pursuant to GCR 1963, 116.1(5), now MCR 2.116(C)(7), based on the two-year limitation period applicable in medical malpractice cases. We affirm.
The facts are not substantially in dispute. Plaintiff, a mechanic, sustained a back injury while at work in December, 1979, and was disabled from employment. According to plaintiff, he subsequently was treated by two physicians over the following two years. He received workers’ disability compensation benefits from Michigan Mutual Insurance Company, his employer’s compensation carrier, apparently throughout 1980 and 1981 until being requested to submit to a medical examination. The examination was performed on December 1, 1981, by defendant, John A. Barbarotto, who is also an employee of plaintiffs employer.
Defendant is a chiropractor licensed to practice in the State of Michigan. Plaintiffs employer and its insurer asked defendant to submit his opinion concerning plaintiffs ability to return to work. Defendant compiled and forwarded his opinion indicating that plaintiff was not disabled and could, in fact, return to work. On the basis of defendant’s opinion, the insurer moved to terminate disability payments and the employer ordered plaintiff back to work. Plaintiff returned to work and alleges to have reinjured his back on May 6, 1982.
In November, 1983, plaintiff filed a medical malpractice action in the Wayne Circuit Court against the insurer, his employer and defendant. Service on defendant was never effected. The circuit court judge granted summary judgment in favor of the employer, holding that plaintiff had failed to state a claim upon which relief could be granted because no physician-patient relationship existed between plaintiff and the employer, and thus plaintiff was owed no duty of care under a malpractice theory. Plaintiff was permitted, however, to amend his complaint to allege fraud and misrepresentation. In August, 1984, defendant was dismissed from the case on the basis of never having been served, and two weeks later plaintiff instituted this separate action against defendant, couched in terms of negligence and fraud, in the Wayne Circuit Court.
Defendant moved for accelerated judgment, arguing essentially that plaintiffs second action was time-barred under the two-year period of limitation applicable in medical malpractice actions. MCL 600.5805(4); MSA 27A.5805(4). The circuit judge ruled that "the essence of the claim in the instant case, as it was in the plaintiff’s previous action against the defendant concerning the December 1, 1981 examination, is based in malpractice not fraud.” Thus, he concluded, plaintiff’s claim was barred by the statute of limitation. In dictum, the trial judge went on to conclude that even if plaintiffs action was not time-barred, it would be prohibited by the doctrine of collateral estoppel in that the factual and legal matters decided in the first case precluded the finding of a duty owed by defendant to plaintiff under a malpractice theory.
On appeal, plaintiff claims three grounds for error. First, plaintiff argues that his claim is not grounded in malpractice, but essentially in tor-tious fraud and misrepresentation, and was timely filed within the three-year period of limitation applicable to such claims. MCL 600.5805(8); MSA 27A.5805(8). The thrust of plaintiff’s fraud claim is based on the allegation that the physical examination performed by defendant exceeded the scope of the practice of chiropractic as limited by statute. MCL 333.16401; MSA 14.15(16401); see Attorney General v Beno, 422 Mich 293; 373 NW2d 544 (1985).
In determining that plaintiff’s action was grounded in malpractice, the circuit judge relied in large measure on Rogers v Horvath, 65 Mich App 644, 646-647; 237 NW2d 595 (1975), lv den 396 Mich 845 (1976). In Rogers, this Court held that the plaintiff had no cause of action for medical malpractice against a doctor who examined her on behalf of her employer in preparation for a workers’ compensation hearing. Key to the Court’s holding was the fact that the examination was not performed for the diagnosis and treatment of plaintiff and that, therefore, no physician-patient relationship existed. Rogers, however, did not deal specifically with the question of the appropriate statute of limitation, but rather with the appropriate duty of care in the absence of a physician-patient relationship.
If plaintiff’s claim is in fact grounded in mal practice, Rogers would require affirmance in this case on the ground that plaintiff failed to state a claim on which relief can be granted, MCR 2.116(C)(8). Moreover, if the claim is grounded in malpractice, it was, of course, untimely filed under the two-year period of limitation, and was thus properly dismissed by the trial court. Plaintiff tries to avoid the Scylla of Rogers and the Charybdis of the two-year period of limitation by showing that his action is based not in malpractice but in tor-tious misrepresentation and fraud. In determining the appropriate statute of limitation governing a case, we read the party’s claim as a whole and look beyond the procedural labels to determine the exact nature of the claim. Belleville v Hanby, 152 Mich App 548, 551; 394 NW2d 412 (1986). Rogers is helpful in deciding whether the instant plaintiff’s action is actually based in misrepresentation or fraud.
In Rogers, the plaintiff alleged fraud by the examining physician on the basis of his having reported a "false” diagnosis to plaintiff’s employer and having testified regarding that diagnosis at a workers’ compensation hearing. This Court held that, as a matter of law, plaintiff had failed to state a cause of action in fraud. Specifically, the Court found that plaintiff had not alleged reliance on the defendant physician’s representations or inducement to act or refrain from acting based on these representations. Although plaintiff in this case seeks to distinguish Rogers by claiming to have adequately alleged reliance and inducement, the facts do not support his argument.
While it seems clear that plaintiff’s employer and the compensation insurer acted on defendant’s opinion, it is difficult to understand how plaintiff was induced, or caused to rely in any way, on that opinion. According to his deposition testimony, plaintiff thought that defendant’s opinion was wrong. At his deposition, plaintiff answered defense counsel’s questions as follows:
Q. The fact that Dr. Barbarotto wrote a letter about your condition did not alleviate your concern that you might be injured, did it?
A. No.
Q. Reading that sentence, that Dr. Barbarotto did not find you disabled and found you capable of doing your duties, that did not change your mind, did it?
A. What do you mean?
Q. It did not change your mind from your belief that you were disabled and unable to do your duties?
A. No, it did not change my mind.
Q. Right. You disagreed with that, didn’t you?
A. Yes.
Q. You did not rely on that sentence and believe that you were able to work or do your duties, did you?
A. No.
Q. This letter did not convince you you were able to do your duties, did it?
A. No.
Plaintiff cannot successfully claim misrepresentation in the absence of reliance on defendant’s opinion or the belief that that opinion was true. Prosser, Torts (4th ed), § 108, p 714; Smart v New Hampshire Ins Co, 148 Mich App 724, 732; 384 NW2d 772 (1985). Plaintiff is bound by his deposition testimony. Northern v Fedrigo, 115 Mich App 239, 246; 320 NW2d 230 (1982); Stefan v White, 76 Mich App 654, 659-660; 257 NW2d 206 (1977).
Thus, since plaintiff failed to establish a prima facie case of fraud or misrepresentation, he cannot seek the protection of the three-year period of limitation applicable to such actions. Plaintiffs complaint is transparently based on malpractice, and the two-year malpractice period of limitation is accordingly applicable. Since plaintiff filed his action outside the two-year limit, we conclude that the trial court did not err in granting defendant’s motion on this basis.
Second, plaintiff argues that the circuit court erred in granting accelerated judgment as to plaintiffs negligence claim. Contrary to defendant’s assertion, this issue is not raised by plaintiff for the first time on appeal.
Medical professionals may be liable for ordinary negligence as well as for malpractice. Adkins v Annapolis Hospital, 420 Mich 87, 95, n 10; 360 NW2d 150 (1984), Becker v Meyer Rexall Drug Co, 141 Mich App 481; 367 NW2d 424 (1985), lv den 423 Mich 852 (1985), and Nemzin v Sinai Hospital, 143 Mich App 798, 804; 372 NW2d 667 (1985). However, a complaint may not avoid application of the two-year malpractice period of limitation merely be couching its causes of action in terms of ordinary negligence. Becker, supra, p 483.
In this case, paragraph 14 of plaintiffs complaint alleges:
That defendant, John Barbarotto, breached his duty to the plaintiff by the following negligent and/or gross negligent acts and/or omissions:
a) failing to correctly and promptly identify and report plaintiffs condition;
b) performing physical examination beyond the scope of his expertise;
c) failing to consider the significance of plaintiff’s symptoms and to recomment [sic] that a medical doctor be consulted.
Clearly, plaintiff alleges a breach of duty which arose out of the professional relationship between defendant, a licensed chiropractor, and plaintiff. Plaintiff in essence declares that defendant failed to properly discharge his professional duties, resulting in damage to plaintiff. Such is the key to a malpractice claim.
The Adkins panel of this Court, quoting Cotton v Kambly, 101 Mich App 537, 540-541; 300 NW2d 627 (1980), lv den 411 Mich 1033 (1981), specified that
medical malpractice . . . has been defined as the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in light, of the present state of medical science. [Adkins v Annapolis Hospital, 116 Mich App 558, 564; 323 NW2d 482 (1982).]
Plaintiff’s allegations that defendant incorrectly identified plaintiff’s medical condition and failed to consider the significance of plaintiff’s physical symptoms indicate that defendant’s negligence occurred, if at all, as a result of a failure to exercise a sufficient degree of professional skill. Thus, plaintiff’s claim is based in malpractice. A plaintiff may not evade the appropriate limitation period by artful drafting. See State Mutual Cyclone Ins Co v O & A Electric Cooperative, 381 Mich 318; 161 NW2d 573 (1968); Reiterman v Westinghouse, Inc, 106 Mich App 698, 705; 308 NW2d 612 (1981).
Having decided that plaintiff’s claim sounds in malpractice and that the circuit court did not err in granting defendant’s motion for accelerated judgment on the basis that the claim was filed untimely under the appropriate statute of limita tion, we decline to address plaintiffs argument based on dictum in the circuit court’s opinion concerning collateral estoppel.
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Per Curiam.
Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and the possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to a term of from three to fifteen years imprisonment for the armed robbery conviction plus a two-year consecutive sentence for the felony-firearm conviction. Defendant now appeals his conviction as of right. He raises a number of issues, one of which merits reversal.
After the close of proofs but prior to final argu ments, defense counsel requested the court to instruct the jury on the lesser-included offense of unarmed robbery. The court denied this request, finding that the evidence indicated a weapon had been seen and used. The court did charge the jury on the lesser included offense of larceny from a person. On appeal, defendant now contends that the trial court’s refusal to instruct the jury on unarmed robbery was error requiring reversal since it denied him his right to a fair trial.
It is well established that a trial court must instruct upon a necessarily lesser included offense when requested to do so, even though the evidence showed a completed offense. This is known as the automatic instruction rule. Failure to do so is error requiring reversal. People v Kamin, 405 Mich 482, 493; 275 NW2d 777 (1979); People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975); People v Chamblis, 395 Mich 408, 415-419; 236 NW2d 473 (1975), reh den 396 Mich 976 (1976), overruled in part on other grounds in People v Stephens, 416 Mich 252; 330 NW2d 675 (1982). A necessarily lesser included offense is one which must be committed as part of the greater offense, i.e., it is impossible to commit the greater without first having committed the lesser. Ora Jones, supra.
The reason for the automatic instruction rule is that the denial of a proper request for instructions on lesser included offenses exposes a defendant to possible conviction on a charged offense simply because a jury may be reluctant to acquit a person who is really guilty only of a lesser crime. Conversely, such a denial of a requested instruction increases the possibility that a person guilty of a lesser crime may be acquitted. Kamin, supra, p 495. Moreover, the jury is the sole judge of all facts presented and may choose to believe or disbe lieve any or all evidence, whether logical or not. Chamblis, supra, pp 420-421.
We find, then, in light of the clear mandate of the automatic instruction rule, the dispositive question in the present case is whether unarmed robbery is a necessarily lesser included offense of armed robbery. That question was answered in the affirmative by the Chamblis Court:
Unarmed robbery is a lesser included offense of armed robbery. It is armed robbery absent the element of use of a weapon. If there is evidence to allow the case to go to the jury on the higher armed robbery offense, there must necessarily be evidence adduced at trial to support a charge of unarmed robbery. [395 Mich 424. Emphasis in original.]
Accordingly, it is necessary to reverse defendant’s conviction for armed robbery. However, it is not necessary to order a new trial. Rather, consistent with the long-standing practice of this Court and the Supreme Court, the trial court is directed to enter a judgment of conviction for unarmed robbery and to resentence defendant accordingly. In the alternative, the prosecutor may, in his discretion, upon notice to the trial court prior to resentencing, have the trial court vacate the judgment of conviction and retry defendant on the armed robbery charge. People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975). See also People v Rogers, 411 Mich 202; 305 NW2d 857 (1981), Kamin, supra, People v Goliday, 153 Mich App 29; 394 NW2d 476 (1986), People v Shelton, 138 Mich App 510; 360 NW2d 234 (1984), and People v Hunter, 77 Mich App 759; 259 NW2d 216 (1977).
Somewhat more problematic is what to do about defendant’s felony-firearm conviction. The Supreme Court has held that it is not necessary to obtain a conviction on the underlying felony in order to obtain a conviction on felony-firearm. People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). With this in mind, we conclude that our reduction of defendant’s conviction from armed to unarmed robbery does not necessitate vacating defendant’s felony-firearm conviction. The jury found that defendant did commit a felony and we have not disturbed that basic finding. However, if the prosecution chooses to retry defendant, it does so at the risk that the new jury will conclude that no felony at all was committed. Accordingly, we believe the best practice is that, if the prosecutor chooses to retry defendant on the armed robbery charge, defendant shall also be retried on the felony-firearm conviction. Otherwise, defendant’s conviction and sentence on the felony-firearm charge is affirmed.
Our resolution of this issue renders it unnecessary to consider defendant’s remaining issues, with three exceptions. First, defendant argues that the trial court erred in instructing the jury that the gun need not be operable to convict on the felony-firearm count. We note a conflict in this Court. Compare People v Poindexter, 138 Mich App 322; 361 NW2d 346 (1984), and People v Ray, 119 Mich App 724; 326 NW2d 622 (1982). We choose to follow the majority of panels of this Court and hold that the firearm need not be operable in order to convict. Poindexter, supra.
We have also considered defendant’s arguments that the trial court should have sua sponte investigated further a juror who indicated he was a teetotaler and, if necessary, dismiss him for cause and the argument that defendant was denied effective assistance of counsel. Both are without merit and neither merits discussion.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Campbell, J.
In this case plaintiff sued defendant on an account for services, before William H. McEnally, a justice of the peace of Ingham county, and recovered judgment for $28.88, damages and costs. Defendant pleaded in abatement that the justice was interested, and on issue' joined to this plea, it was decided against him, and he appealed to the circuit court, where, upon a stipulated statement of facts, the plea was sustained and judgment given for defendant. The case now comes up on error.
These facts show simply that the plaintiff sent the claim to the justice to be sued, but no suit to be commenced until he had written defendant that the claim was left with him for collection, to be sued if not paid. There was no other arrangement, but the case states that the justice expected compensation if he collected the claim without suit, and plaintiff expected to pay in such case, but there was no understanding on the subject.
We do not see that this case differed in any way from the usual practice of sending claims to a justice for suit. The practice of giving a defendant an opportunity to pay without suit is a fair and proper one, and not, in our opinion, beyond the legitimate functions of such an officer. The statute provides expressly that, if a justice has advised with plaintiff, defendant may remove the cause to another justice on affidavit of that fact, as he may on affidavit that the justice is a material witness. Comp. L. § 5372. In the present ease defendant did not make any such affidavit, although he swore to his plea in abatement,'which was based entirely on the receipt from the justice of the letter before referred to. It is certainly a little singular that with or before such a plea, concerning which the justice might at least have been an important witness, defendant took no steps to have his case heard before some other justice.
Both parties seem to rely on West v. Wheeler 49 Mich. 505, as sustaining their respective views. In that case the note in suit had been endorsed and made payable to the justice or to his order for collection, and this endorsement was not canceled. As it had been held by this Court previously that an endorsement for collection was as effectual to' pass the legal title as any other, the justice there was not merely an agent of the plaintiff to collect, but he was an agent holding the actual title to the note sued on. There could be no doubt of the legal interest of the holder of the title.
The present case involves no such conditions. The justice had no interest whatever in the claim sued on, and was not, so far as there is any showing, disqualified by any advice or interference such as is contemplated by the statute.
The judgment should be reversed, and judgment given for plaintiff in accordance with the determination of the justice, with costs of both courts.
The other Justices concurred. | [
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Campbell, J.
Bespondent was convicted of the forgery and uttering of a note and mortgage purporting to have been made by Albert C. Bennett, payable to James A. Beebe or bearer, for $500, with intent to defraud Beebe who lives at Owosso.
Bespondent, on September 15, 1881, went to Beebe, representing himself to be A. G. Bennett, living in Elsie, and wanted to borrow $500. On Beebe’s objecting that he was a stranger, he proposed to get a line from Mr. Jones, a family connection of Beebe, and afterwards came back with such a paper representing the value of Bennett’s farm to be from $8000 to $5000. They then went to Mr. Stewart’s bank and had the papers made out, and respondent took them away for signature and acknowledgment. He brought them back executed, and Beebe gave him the money.
The exceptions taken present no questions not already settled, and need but brief reference. It was held in People v. Catón 25 Mich. 388, that a mortgage is within the statutes against forgery. It is too familiar doctrine to need authority that neither witnesses nor acknowledgment are necessary to make a mortgage actually binding as a security. People v. Marion 29 Mich. 31. It was also held in the latter case that the acknowledgment may be properly treated as a part of the conveyance itself. It was further held in Van Sickle v. People 29 Mich. 61, that a bond and mortgage given to secure it form such a connected transaction that there is no impropriety in including the forgery and uttering of both in the same prosecution. The same rule would of course apply to a note. It was further held in People v. Marion that all circumstances tending to explain the fraud and its extent and character, may be shown. This doctrine covers such objections as relate to the ownership and value of Bennett’s farm, and all the surroundings which entered into the scheme of respondent to accomplish his crime.
The representation of respondent to Beebe and Jones that he was Mr. Bennett, the owner of the Bennett farm, the preparation of the papers, their retention for signature, and their return signed, make up a sufficient chain of facts to prove forgery as well as uttering. It was also proper to show by the supposed acknowledging officer and subscribing witness (although the latter was not named in the information) that they did not sign the papers. It is not necessary in setting out the legal purport of a paper to give the names of subscribing witnesses. As a contract it is complete without them.
As Beebe explained sufficiently the failure to preserve the note sent to him by Jones, there was no reason why he could not be allowed to state its contents. The sheriff’s testimony of his inability to find or hear of any such man as the one whose name appeared as the second subscribing witness, was properly received. There is no other way of showing that a name is fictitious. The extent of his search and opportunities woirld go to the weight, but not to the competency, of his testimony. People v. Marion, supra.
As the sentence was within the limit allowed by statute, there is no reason for disturbing the judgment. No eri’ors appear, and
The judgment must be affirmed.
The other Justices concurred. | [
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Sherwood, J.
The certiorari in this case brings before us proceedings had before the judge of probate for the county of Monroe, appointing a special drain commissioner to construct a certain ditch, and widen, deepen and straighten natural water channels as parts thereof, for the purpose of draining Ottawa lake and certain lands lying along said ditch or drain — said drain being partly in Monroe and partly in Lenawee county.
The proceedings are taken under section 5 of Act No. 269 of 1881 — How. Stat. § 1695 — and consist:
1st. Of a petition to the judge of probate, signed by six persons, who describe themselves as freeholders and residents of the counties of Lenawee and Monroe, three from each county, and forty-four other persons from the two counties, praying for the appointment of J. M. Robertson, as special drain commissioner to construct the ditch aforesaid.
2d. The order of the judge of probate, made the same day the petition was filed, appointing said Robertson as such special drain commissioner.
3d. The order of the said special drain commissioner, establishing said ditch or drain, and which reads as follows: “I, Josephus M. Robertson, special drain commissioner for the foregoing described ditch or drain,- do hereby order that said ditch or drain be and it is hereby established, as hereinafter described, and that said ditch or drain shall be known and recorded by the name of Ottawa lake, or Rig ravine outlet, special drain No. 141.”
The county clerk of Monroe county and the township clerk of the town of Whiteford, each make return to the writ in this case and say that said special drain commissioner has never filed any affidavit or bond as such commissioner, in either of the offices of said clerks; and the affidavit for the writ states no such affidavit has ever been made, or bond given, by said Robertson as such special drain commissioner. The county clerk also further returns that the board of supervisors of Monroe county has made no order, nor taken any action in relation to said drain proceedings or to said special drain commissioner.
The petition upon which the writ in this case was allowed, states that said Robertson, who was a resident of the county of Lenawee, presented the petition to the judge of probate of Monroe county for the appointment of himself as such special commissioner, and that no notice was given to any one by said Robertson, or the judge of probate, of the pending of the petition, or of the time and place when a hearing would be had upon the same, and that without any proof or verification of the petition the judge proceeded ex parte and made the order appointing said Robertson such special drain commissioner ; and that no notice whatever of any proceedings in the matter was given to parties interested, or any other order made in the premises; that all the persons owning land through which it was proposed to construct said drain had not released the right of way, nor their damages therefor, and that among them were several minors; that the said Bobertson has pretended to act under said appointment, and filed a report of his doings with the county clerk, by which it appears he has ascertained and determined the cost of said drain, established by him as above stated, to be $32,361.05 and that the petitioners had been assessed that amount; that said drain, as laid and established, is for the most part, if not entirety, on the line of existing drains already established by the township and county drain commissioners.
It does not appear by the return to the writ or in any of the proceedings that Bobertson accepted the office, or qualified as required by law, or that the necessity for constructing the said drain for any reason was adjudicated or determined by said special commissioner, or any other person or persons.
The petitioners in the writ make the following objections to the proceedings of the judge of probate and said special drain commissioner, viz.: First, because no notice was given to the parties interested of the time and place of hearing of said application for the appointment of said Bobertson.
Second, because there was no evidence before said court that the applicants were freeholders of said counties of Monroe and Lenawee, nor was said application verified by the oath of any person.
Third, that the said order of said court did not require said Bobertson, in any manner, to qualify as such officer, nor did said Bobertson accept such appointment and qualify as such officer, as required by law.
Fourth, because, without having filed any oath or bond, as required by law, and without giving any notice of his contemplated action to determine the necessity and practicability of the proposed drain, he proceeded to act as such commissioner, and to attempt to establish said drain.
Fifth, because all the persons owning lands on the line of said proposed drain have not released the right of way over their said lands, nor their claims for damage on account thereof.
Sixth, because the said Bobertson, as special drain com missioner, acting under said pretended appointment, has not determined that the proposed drain was necessary and practicable. Nor have any special commissioners been appointed and acted to ascertain the necessity for such drain, and the taking of private property for the purpose thereof, and the just compensation therefor.
"We think these objections were all well taken. The proceedings are all statutory, not according to the course of the common law, and must strictly conform to the statutes’ authorizing them. Every material requirement of the statute must be observed, and the proceedings must show affirmatively on their face a substantial compliance with the law . Kroop v. Forman 31 Mich. 144; Lane v. Burnap 39 Mich. 736; Ross v. Com'rs of Highways 32 Mich. 301; Names v. Com'rs of Highways 30 Mich. 490; Harbaugh v. Martin 30 Mich. 234; People v. Burnap 38 Mich. 350.
The application to the judge of probate does not show that the persons who signed the petition presented were resident freeholders of either Lenawee or Monroe counties, and was therefore insufficient; that fact should appear on the face of the petition. This it is which is to put the officer in motion, and it is the basis of his authority to enter upon the course of proceedings to establish a water-course or locate a ditch. How. Stat. § 1695; Kroop v. Formcm 31 Mich. 144. Section five of said chapter requires the special commissioner, when appointed, to take an oath to faithfully perform his duties as such, and we think the provisions of section 3, requiring the county drain commissioner to give a bond to secure the faithful performance of his duties apply to the commissioner appointed by the judge of probate. There is the same reason for the bond in the one case as in the other, and we have no doubt the Legislature intended it to be given in both cases. The commissioner appointed in this case failed to comply with the statute in this respect.
No notice was given to the parties interested of the pend-ency of the application or proceedings before the judge of probate, or of the time and place when the same would 'be heard. Such notice is always necessary when it is sought to deprive the citizen of his property; and if the notice is not expressly provided for in the law itself, it is in all such cases necessarily implied, and the failure to give such notice rendered the proceedings, if otherwise regular, null and void.
The record shows no proper adjudication or determination by any person of the necessity to make the ditch or drain proposed, or whether the same was practicable. This is one of the first things to be considered and ascertained in the proceedings to be taken, and without a compliance with this requirement no further proceedings can be taken legally.
It is unnecessary to consider the proceedings further. They are clearly without authority of law, and cannot be sustained.
It is claimed by counsel for respondents that the proceedings might be saved under sec. 40 of the Act [How. Stat. § 1730] under the decision in Tucker v. Parker 50 Mich. 5, and that certiorari will not lie under the facts as they appear upon this record , but this is a wrong construction of the views expressed in that case.
The want of a proper petition to the judge of probate, and neglect of the respondents to .give some notice of the pending of the proceedings, rendered the action taken in the case by both the judge and commissioner not only irregular, but null and void, and in such case certiorari is a proper remedy. It is in cases where the action of the court and commissioner have been irregular only that the provisions of sec. 40 may be invoked, and in such case certiorari would be improper.
The commissioner is not an officer in any proper sense of that term, but rather the agent of the two counties appointed to do a certain piece of work, which, when completed, ends his mission; and the doctrine contended for, applicable to de facto officers, does not apply to him.
The objection that the petition does not show that any of the petitioners are affected by the proceedings complained of, or interested in them, is not well foxmded. The township of "Whiteford is a party, and it further shows that five other petitioners have been assessed for tbe construction of said drain over $1200.
We have said more than was necessary to dispose of the questions involved in this ease, but have done so with a view that a better understanding may be had, both of the statute and the decision of this Court already made thereunder.
The proceedings in the case must be quashed, and the petitioners will recover their costs against the respondents.
Chamflin, J. I concur in the result.
Cooley, C. J.
I agree entirely that the proceedings in this case are altogether void. I do not think it legally competent to confer upon the probate or any other court the power, without notice to the parties concerned, to appoint an officer to decide finally upon the question of laying taxes, and to proceed to lay taxes in his discretion, as has been done here; and if the legislation, under which this so-called commissioner has proceeded, will permit of such action, it is void.
Campbell, J. I concur with the Chief Justice. | [
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Sherwood, J.
This case has once before been in this Court. See 50 Mich. 516. The questions before the Court then were: 1st. Was the defendant liable, if at all, for the act of its servant, the driver of the ice-cart ? and 2d. Had the plaintiff the right to recover (he being a lawyer) special damages by reason of the employment in which he • was engaged, without special allegation in the declaration averring the facts? On the first point the Court held the liability existed, and on the second it held the negative and reversed the judgment, which was for the plaintiff, and directed a new trial.
On the second trial the plaintiff was allowed to amend his declaration, alleging his professional character, and claim damages especially sustained in his professional business. The trial then proceeded before a jury, and the plaintiff again had judgment at the circuit, and the defendant again brings the cause here on exceptions.
The plaintiff claims that on the 3d day of April, 1882, he was driving on a public street in the city with his horse and buggy, and was carelessly and negligently run into by one of the defendant’s servants, who was driving a team before an ice-cart while in the employ of the defendant; that by the collision his horse and buggy were damaged, and himself severely injured, in consequence of which he has been prevented from carrying on his business, and especially that of his profession, and this suit is brought to recover the damages he has sustained.
The questions now raised arise upon the rulings and charges made by the court during the trial of the case. Two of the assignments of error relate to the refusal to charge as requested by defendant’s counsel, and one to a statement of the court made in the charge upon his own motion.
The first includes the defendant’s sixth request, which was given in full and is as follows:
“ 6th. If the jury find that the street-railway track, at the point where the collision occurred, was not in a suitable and proper condition to allow the wheels of vehicles to pass over it, and that the collision was caused by this condition of the track, and would not have occurred but for that, then the plaintiff cannot recover.”
The court then said, in connection therewith:
“ If, however, the servant was negligent in driving against the plaintiff’s vehicle, or in driving where the contact of his wheels with the railway track would throw his wagon against the plaintiff’s carriage, and could, by the exercise of ordinary care in driving in the highway as it then was, have avoided the collision, he was guilty of negligence. In other words, the fact that the street railway may have been in a condition which made it difficult to cross, would not justify one driving in the street to attempt to cross such tract recklessly, or to the peril of others lawfully traveling the street, or charge any injurious result to the condition of the street.”
It is to this additional instruction the defendant excepted, but we fail to see why the statement of the law therein contained is not correct, as applied to the facts the testimony discloses.
The court in his charge to the jury, after telling them that, in order to find for the plaintiff, they must find the driver of the ice-cart was guilty of negligence, said :
“As to whether there was negligence, is a question of fact for yon to determine from the evidence. In the determination of this question you will apply the instructions you receive from the court to the facts; but you will receive but little aid from the court in this line.”
The last sentence in this charge is the one excepted to. It seems, however, quite clear to us that the jury were not misled, as claimed by the defendant’s counsel. The sentence unmistakably relates to the deliberation of the jury upon the facts, and in this, he says, he can render them little assistance. We see no objection to this charge.
The plaintiff, w.hen upon the stand as a witness, against the defendant’s objection testified that when the accident occurred, and while he was trying to raise himself up out of the debris, he asked the driver of the cart what he meant, and then stated, “ The driver replied in rather an indifferent and insolent manner that he could not help it.” The statement and manner were both a part of the res gestae, and proper.
The plaintiff, in making proof of his damages, offered testimony to the effect that he was an attorney at law of ability and in good standing, and the extent and value of his practice, and that, in substance, the injury had rendered him incapable of pursuing his profession. This was objected to as irrelevant, immaterial and incompetent. We think this was competent. It was within the declaration that his standing in his profession was such as to command respect, and was proper to be shown, and his ability to earn, and the extent of his practice, were a portion of the loss he had sustained by the injury complained of. There was no error in permitting this proof, and we further think it was competent, upon the question of damages under the evidence in this case, for the plaintiff to show, by Judge Hoyt, as was done, that an interruption in his legal business and practice for eight months was a damage to him.. It seems to have been a part of the legitimate consequences of the plaintiff’s injury.
It was not error to permit the question put to Dr. White field to be answered. It was not open to tlie criticism of counsel for defendant.
The testimony of David JP. Hansom was given, tending to show that the plaintiff was without fault in occupying the position he did with his horse and buggy at and about the time the injury occurred, and what would have been the result had he done otherwise, and further to show that the driver of the ice-cart was careless in doing as he did, knowing the position of the plaintiff. In making this proof several questions were objected to, but we think were all competent. There was nothing misleading or prejudicial in the answers given. The examination of the witness the next day upon these points was discretionary with the trial judge.
Ve find nothing under the 5th or 9th assignments of error objectionable. The manner the driver of the cart handled his team, and the use he made of his whip, and what' positions the plaintiff’s buggy occupied, and how it came to occupy them, were all facts to be shown on the question of negligence.
On the former trial the record shows an examination of plaintiff’s physical condition had been made by several physicians,' and on this trial, one of them, Dr. Griswold, was called by the defendant, and after his attention was called to that examination, he testified he discovered “no injury to the back; ” that “ there were no scars or marks or any deformity ; ” that there was no evidence of any hurt at all. He. then stated upon his cross-examination that if the spine had been injured six or eight months prior to the examination, there would be no indication of it necessarily upon the surface at the time the examination was made. The witness, ■upon his cross-examination, was being examined by the plaintiff and asked the following questions: “ Question. Do you remember putting your finger upon a certain point at my back and asking if I felt any pain? Answer. Yes. Q. What was the reply?” This question was objected to on the ground that it called for" a statement of the plaintiff.
It was claimed by the plaintiff that an injury that could be only thus discovered to the physician was one of the facts in the examination which the witness had testified to on his direct examination, and that the examination was proper; also, to lay foundation for contradiction. ■ The court overruled the objection, held it was proper cross-examination, and part of the res gestae of the matter queried after, and permitted the witness to answer. “You complained of pain; of its hurting you. I don’t remember the particular expression, but I know you complained of pain upon pressure.” We think this ruling of the circuit judge was correct. The testimony was proper cross-examination, and this is the only question raised by the exception. It was the plaintiff’s physical condition to which the attention of the witness was called, and the examination the physicians made of it at the time. It appears that such examination was made by observation and interview of the patient, and the plaintiff was entitled to the whole of it, if he desired. As an affirmative piece of testimony on the part of the plaintiff, it might not have been proper.
We have now examined all the questions argued and discussed before us on the hearing. We find no error in the rulings and decisions of the circuit judge, and the judgment must be affirmed.
Campbell, J. concurred. Mr. Justice Champlin did not sit in this case.
Cooley, C. J.
The plaintiff, I think, should not have been allowed to testify what was the manner of the driver after the accident occurred. Iiis manner had nothing to do with the liability of the defendant. The defendant was liable for the servant’s negligence which caused the accident; not for his impudence or insolence after its occurrence: and the proof of insolent manner was well calculated to swell the recovery wrongfully. I think also that nothing could be more unreliable than a man’s judgment as to what is indicated by the manner of another under such circumstances.
The question, answer and objection were as follows:
Question. From the examination you made of Mr. Joslin at the time, and supposing it to be true that he was suffering with a smarting pain in the back, near the region of the hips, and also pain in the back of the neck, what would you say was the cause of the trouble? Mr. Earle. I will save an exception to that. I think the question must be purely hypothetical, or it must be entirely upon examination. It cannot be part examination and part guess. The Court. I think he may answer the question. | [
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Cooley, C. J.
This is a suit for divorce. It appears from the record that the husband first began suit, charging his wife with habitual drunkenness. She thereupon filed her bill, in which the complaint was extreme cruelty. The two suits proceeded together, and the evidence was taken in both. The circuit judge dismissed both bills. The husband submitted to the decree against him, and his case is therefore finally determined. The wife appealed her suit.
The record is an extraordinary one. The careful and conscientious circuit judge says, in an opinion filed by him: “ I cannot pass over in silence, and do my duty, the unlawyer-like wrangling which took place between counsel during the taking of the testimony in this case. This record is full of unprofessional statements taken down by the commissioner at the request of counsel, and of objections which are not only burdensome and expensive to the litigants, but are scandalous in the extreme. The commissioner should have declined to have recorded the same. It must be further added that the proofs as taken are very unnecessarily prolix and cumulative, and would in any other than a divorce case in which one of the parties has no property, be met with a decree charging the party or parties responsible therefor with the costs of taking the same.” This is a very moderate statement. The record is at least five times as voluminous as was needful for bringing out the material facts.
The circuit judge adds that “a wrong practice was also followed in the taking of proofs with a view to a decree for permanent alimony. No such proofs should have been taken until it was determined by the court whether or not a divorce should be decreed; and moreover the proofs as taken upon this branch of the case are specially cumulative, and the cross-examination much too lengthy.” In this also he is quite right.
On the merits we are inclined, though with considerable hesitation, to hold that Mrs. Rea should have the divorce prayed, for. Her ease is not a strong one, and if we could indulge the hope, as the circuit judge did, that the parties might still compromise their difficulties, we might in our discretion affirm his action throughout. But such a compromise is not to be looked for.
The question of alimony remains. The cost of this needlessly expensive litigation has been borne by the husband, and-the greater part of the property he had when it began is now gone. The record and the files in the case do not warrant us in finding him worth much over five thousand dollars, and this is in real estate which is incumbered to more than half its value. "What he has would be sacrificed if he were compelled to sell it now to raise money. The property was accumulated by the joint labor of both, and perhaps the claim of one to it is as good as that of the other; but if Mr. Rea is now required to pay two hundred and fifty dollars to counsel in this Court, and one thousand dollars for alimony, it is as much as, under the circumstances, should be demanded. This is a small sum for the wife, but it has necessarily be'en made small because of the exhaustion of the husband’s means.
Campbell and Champlin, JJ. concurred. Sherwood, J. did not sit in this case. | [
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Champlin, J.
Plaintiffs brought ejectment to recover a parcel of iand on section two in the township of De Witt, ■Clinton county, containing one hundred and seven acres.
Both parties claim title through William Case, who was the grandfather of Marion Case.
William Casé, being seized of this land in fee in 1858, made, executed, acknowledged and delivered to Hiram S. Case, his son, and Bebecca Ann Case, wife of Hiram S., a lease of this land, dated October 13,1858, and acknowledged October 16, 1858 ; and Hiram S. and wife, as appears by the evidence, shortly after the delivery of this instrument to them, went into possession of this land thereunder.
This lease purports to convey to Hiram S. Case and Bebecca Ann Case, husband and wife, a lease of this land for life, and for the life of the survivor; a remainder for life to Adelbert Case, their son, retaining the reversion in fee in the grantor, William Case.
This lease was never recorded.
William Case died at Saline, Washtenaw county, in 1859, leaving him surviving, as his heirs, Hiram S. Case, his son, and Jenny B. Bice, his daughter.
Jenny B. Bice executed a quitclaim deed of this and other lands to Hiram S. Case, her brother, dated March 1, 1862, recorded March 8, 1862.
Hiram S. Case and Bebecca Ann Case, his wife, being in possession of this land in December, 1862, made, executed, acknowledged and delivered'to Norman C. Green, one of the defendants, a warranty deed thereof, the deed bearing date December 15, 1862, acknowledged by Hiram S., December 15, 1862, and by Rebecca Ann, December 16, 1862.
Case and wife, in a short time after giving this deed, removed from the land in controversy to Fowlerville, and Green went into possession of the same by his tenant, and has remained in the actual possession thereof up to the commencement of this suit, claiming the title in fee; Marvin Springstein being Green’s tenant at the commencement of the suit.
Hiram S. Case died on the twenty-fourth day of April, 1882. Rebecca Ann Case, widow of Hiram S., executed a quitclaim deed of the land in suit to the plaintiffs, dated May 3,1883, recorded May 10, 1883.
There was parol proof offered on the part of the defendant by William Sturgis, a witness sworn on the trial, which tended to prove that he made a bargain with Hiram S. Case, in December, 1862, to exchange an interest which he, Sturgis, had in a hotel in Fowlerville, and the furniture therein, for this land in De Witt. That he went to De Witt and saw this land at the time they were making the bargain. Talked the matter over at Case’s house in the presence of his wife, Rebecca Ann Case. Heard nothing of any lease. Supposed he was trading for the title in fee. That he, being indebted to Green, had the deed from Case and wife made to Green, and Case and wife immediately thereafter moved into the hotel, and took possession of it and the furniture therein. That the hotel interest which he conveyed to them had cost him about $3000, and the furniture was worth $700.
Norman C. Green gave evidence tending to show that the first he knew of this matter he was sent for to come to Fowlerville. Went there and found Sturgis and Case had made a bargain for an exchange of property; that in pursuance thereof a warranty deed was made of this De Witt land by Hiram S. Case and wife to him, subject to a mortgage thereon of $500, which Case had given to some party in Detroit. That the deed was made out at Fowlerville, and signed and acknowledged at that place by Hiram S. That he went with Case to De Witt the next day after, and the deed was then and there signed and acknowledged by Bebecca Ann. That upon the deed being made and delivered to him he released certain mortgage interests which he had on the Fowlerville Hotel and furniture. Sturgis conveyed to Case the hotel property. He took possession of the farm ; Case and wife of the hotel and furniture. Heard nothing said of any lease. Saw an abstract of the title. Case claimed to own the land in fee by inheritance from his father, and by conveyance from Jenny B. Bice, his sister. That he first learned of this lease in 1864.
On the part of the plaintiff's, in rebuttal, Bebecca Ann-Case gave evidence tending to show that when Green came to De Witt with her husband to have her sign and acknowledge the deed, she got this lease at the request of her husband, and gave it to him, and he took it out in the yard in front of the house where Green was, and she thinks gave it to Green.
Esther Case, one of the plaintiffs, gave testimony tending, to show that she saw Green at De Witt at this- time ; that he was at her house and talked with her father and her about this lease.
These are substantially the material facts relating to this issue, as appears by the record.
There are three reasons why plaintiffs cannot recover:
1st. If, as defendants’ evidence tended to prove, Green made the purchase in entire ignorance of any life-lease outstanding in Hiram S. and Bebecca Case, and in reliance upon the record title (Atwood v. JBecurss AT Mich. 72), then he is-entitled to hold the premises by title based upon adverse possession. He went into possession under his deed from Hiram S. and Bebecca Case, in December, 1862, and this suit was not instituted until after May 10, 1883, during which time the possession of the defendant Green has been “ actual, continued, visible, notorious, distinct and hostile ” to any claim of Bebecca or Hiram S. Case based upon the life-estate granted by William Case ; during all which time, if they had not conveyed their life-estate, they had a right of entry. Therefore they are conclusively presumed to have granted to Green whatever interest or estate they had in the premises so possessed by him.
2d. If, as plaintiffs contend, and as their testimony tended to prove, Rebecca Case, at the time she executed the deed to Green, actually produced and delivered to him the life-lease from William Case to Hiram S. and herself, then she and those claiming by privity of contract from her, are estopped from asserting that the deed from Hiram S. Case and herself did not, or was not intended to, convey the estate and interest which Hiram S. and Rebecca Case had in the premises under and by virtue of such lease.
3d. Owing to the nature of the estate held by Hiram S. and Rebecca Case in the land at the time they conveyed to Green, Rebecca had no inchoate right of dower in the premises ; and if her deed did not convey her life-estate, it conveyed nothing. She must be held, therefore, to have conveyed her life-estate by joining with her husband in the covenants of the deed to Green.
There was no error in the ruling of the circuit judge in refusing to submit the questions to the jury proposed by plaintiffs’ counsel, or in directing a verdict for defendants, and the judgment is affirmed.
The other Justices concurred. | [
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Cooley, C. J.
The relator resides at Bay City in the county of Bay. He was a party to two suits pending in the county of Huron, and went to Bad Axe to attend on the trial thereof. He was examined as a witness in one of the causes and the other was continued. He makes oath that he was a necessary witness in the two cases, and attended the court for the sole purpose of giving his evidence. While so in attendance he was served with a summons in another case. He applied to the court on a showing of the facts to set aside the service, but the application was refused. He now 'moves in this Court for a writ of mandamus.
We think the case is within the principle of Watson v. Judge of Superior Court 40 Mich. 729 and that the writ should issue. Public policy, the due administration of justice, and protection to parties and witnesses alike demand it. There would be no question abdut it if the suit had been commenced by arrest; but the reasons for exemption are applicable, though with somewhat less force, in other cases also. The following cases may be referred to for the general reasons: Norris v. Beach 2 Johns. 294; Sanford v. Chase 3 Cow. 381; Dixon v. Ely 4 Edw. Ch. 557; Clark v. Grant 2 Wend. 257; Seaver v. Robinson 3 Duer 622; Person v. Grier 66 N. Y. 124; Matthews v. Tufts 87 N. Y. 568; Hall’s Case 1 Tyler 274; In re Healey 53 Vt. 694; Miles v. M’Cullough 1 Binn, 77; Halsey v. Stewart 4 N. J. L. 366; Dungan v. Miller 37 N. J. L. 182; Vincent v. Watson 1 Rich. Law 194; Sadler v. Ray 5 Rich. Law 523; Martin v. Ramsey 7 Humph. 260; Dickenson’s Case 3 Harr. (Del.) 517; Henegar v Spangler 29 Ga. 217; May v. Shumway 16 Gray 86; Thompson’s Case 122 Mass. 428; Ballinger v. Elliott 72 N. C. 596: Parker v. Hotchkiss Wall. C. C. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Arding v. Flower 8 Term 534; Newton v. Askew 6 Hare 319; Persse v. Persse 5 H L. Cas. 671. See also Matter of Cannon 47 Mich. 481.
The case of Case v. Rorabacher 15 Mich. 537 is different. In that case the party claiming the privilege was attending court within the jurisdiction of his residence.
The writ must issue, but as no intentional wrong is charged ■or appears it will be without costs.
The other Justices concurred. | [
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Champlin, J.
Complainants allege that they are the heirs at law of Eliza Shatter, (their mother,) who died February 24, 1864; that said Eliza was the daughter of one Matthias Sumner, and the wife of Hugh M. Shatter, (complainant’s father;) that Matthias Sumner died intestate in 1844, leaving as his only heirs the said Eliza and one Alonzo B. Sumner, being at the time of his death seized of the real estate in controversy; that no administration' was ever had on the estate of Matthias Sumner, but by agreement his estate was divided between his two children, Eliza giving a quitclaim deed to Alonzo of a certain part of said real estate, and Alonzo giving in return a quitclaim deed of another part of said real estate, (being that which is in controversy,) to said Hugh M. Shatter, at his instance, request and direction, without any consideration from him, and against the real and expressed wish of said Eliza; that at the time said quitclaim to Hugh M. was executed, it was well understood by said Hugh M. that the said land really belonged to his said wife Eliza; that said Hugh M. and Eliza continued to live on said land until Eliza’s death, in 1864, and that since that time Hugh M. has continued to remain on said land under a claim of tenancy by curtesy, not disputing that said land equitably belonged to Eliza at the time of her death ; that on January 6, 1876, said Hugh M., disregarding the rights of complainants, made on said premises a mortgage to Walter Huntington, defendant, on which was claimed to be due, at time of filing the bill, $1623.59, and that said Huntington, well knowing the premises, was at the time of filing the bill, proceeding to foreclose his mortgage by advertisement; and that if said real estate be sold under said sale it would be against the just rights of complainants, and they would suffer irreparable wrong and hardship.
The bill prayed that the quitclaim given by said Alonzo B. Sumner to Hugh M. Shafter might be destroyed, (said deed being made July 21, 1849, and recorded August 7, 1849, in the register’s office, Kalamazoo county,) and that the sale of said land by Huntington on his foreclosure might be perpetually enjoined, and that a temporary injunction issue during the pendency of the suit, and also pi’aying for general relief. A temporary injunction was issued on filing of bill, (May 11, 1881,) but was dissolved on coming in of' Huntington’s answer. His foreclosure proceeded and a sale was made; the time of redemption expired. He received a deed of conveyance under the foreclosure.
The defendant Huntington filed an answer and supplemental answer, the substance of which was that defendant did not admit the allegations contained in the bill as to any interest of complainants in the real estate, and denied that they had any. He did not admit the ownership of Matthias Sumner, but alleged that Hugh M. Shafter was the owner of the land when he gave the mortgage to defendant, and that defendant actually loaned him $1000 thereon, believing that he owned the land. He denied that Hugh M. Shafter had possession of the land under any claim of tenancy by curtesy, but as absolute owner ; that he had already occupied it for such length of time that any cause of action by complainants would be barred by the long delay ; that he had foreclosed his mortgage and obtained a deed, and had also purchased a tax deed upon the premises, and was in possession and claiming title thereunder, and that his title was absolute. He also denied the other allegations of the bill, and added a general demurrer clause. After the bill was filed Hugh M. Shafter died, and defendant Russell G-. Smith was appointed administrator, and the suit revived in his name. The record does not show any answer or other pleading, either by Hugh M. Shafter or the administrator, nor the entry of any order taking the bill pro confesso by either of them.
We do not think the proof sustains the charge of complainants’ bill, that the deed from Alonzo B. Sumner to Hugh M. Shafter was obtained by him against the real and expressed wish of the mother of complainants. The testimony shows that Matthias Sumner died in 1845 intestate, leaving as heirs at law two children, Alonzo B. Sumner and Mrs. Hugh M. Shafter ; that at the time of his death he was the owner in fee and seized of the real estate described in complainants’ bill; that no administration was had of his estate, but by an amicable arrangement between the heirs a division was made of the land, and Mrs. Shafter deeded to her brother her interest in a portion mf the real estate, and he agreed to deed to her the remaining portion, but which was finally conveyed to Hugh M. Shafter. Why this was done appears from the testimony of Alonzo B. Sumner. He says that
“ Mr. Shafter insisted on his quitclaiming the east part of the farm to him instead of his wife, and it was so executed. Mr. Shafter said in that conversation in regard to this division that he did not want the land for himself at all; simply wanted to preserve it, and take care of it for the benefit of his children and Mrs. Shatter’s. He said that if I quit-claimed to Mrs. Shafter her undue religious zeal would perhaps induce her to appropriate that land to some charitable purpose, missionary enterprise, or something of that kind, and to secure it to the children he thought it was necessary that the title should be in his name; that he proposed to hold it in trust for his children. This settlement was delayed considerable time on that point. I objected to deeding it to him; I was willing all the while to quitclaim to my sister, but not to Mr. Shafter. Mr. Shafter kept a continual annoyance going in the family and among the relatives, between himself and his wife and me, over the title of that land, insisting that I should convey it to him. I did finally, after resisting his importunities considerable time. Mrs. Shafter told me that she could not bear any more annoyance over that land; she had rather have it sunk where nobody could get it, than to have that annoyance continue any longer; and she said if I was willing to do so she desired Í should deed it to her husband instead of her, for the sake of restoring peace in the family.
Question. What did she say as to whose it was, or about the children, if anything?
Answer. I don’t recall that she said much about the children, but he said like this: that he was alive, owned a'large farm there unincumbered, and that it could not possibly make any difference to those children whether the descent of this land came through his name or through the mother’s name; that he should simply hold it in trust for them, and they would have it ultimately.
Q. Was that the arrangement she consented to?
A. That was the arrangement she consented to.
Mr. Boudeman. I object to that question as calling for a conclusion.
Q. What did she say about it at the end ?
A. Well, I think she expressed the opinion that it prob.ably would make no difference to the children whether it was in her name or her husband’s; that the children would ultimately get it, and therefore on those grounds she consented to my deeding it to her husband ; and, at the time the deed was executed, Mr. Sliafter and his wife and myself and wife were together at the office of Esquire Simmons, who did the conveyancing.
Q. What was said there at the time the deed was made ?
A. I requested Esquire Simmons to make a trust deed from me to Hugh M. Shatter for the benefit of his children. Mr. Shatter said that would be satisfactory to him, — he was willing that should be done; but Mr. Simmons had no blank suitable for that kind of conveyance, and the matter of Mr. Shatter’s holding it in trust for the benefit of those children was talked over there in the justice’s office. Mr. Sliafter said it could make no possible difference in regard to what kind of deed was executed, and Simmons remarked that the children would inherit this land from their father as well as from their mother, and it would descend to them ultimately; and finally Mrs. Shatter consented. Rather than to. have the thing postponed again to a still further delay, annoyance and vexation over it, she consented there should be a deed made direct quitclaiming to Hugh.
This testimony shows quite conclusively that the conveyance was made to Mr. Shatter by the consent and direction of Mrs. Shatter. The consideration for the deed was furnished by Mrs. Shatter, and consisted of a deed of her undivided interest in the land conveyed to her brother for the purpose of settling the estate; and the question arises — ■ conceding that the land was conveyed to Hugh M. Sliafter by an absolute deed, without specifying any trust, but with the parol agreement that he should take the legal title and hold it in trust for the benefit of the children, of himself and Mrs. Shafter after his death, and the conveyance was made by the express consent and direction of Mrs. Shafter —whether, under such circumstances, the trust is such .as can be enforced in behalf of the children in a court of equity.
Complainants occupy no better position in this respect than they would had the deed been' made by Alonzo B. Sumner to their mother, and she jhad thereupon executed the deed to their father upon the parol trusts shown in the testimony. It would then have been a mere voluntary conveyance, absolute in form, but under a parol trust that he should hold the title during his life, and, on his death it should descend to their heirs, the complainants. Now, had he conveyed the land in his life time, in contravention of the parol trust, to one having no notice of the trust, would the complainants be entitled to relief? The fact that the conveyance was made without consideration, and was entirely voluntary, would not raise a resulting trust in favor of Mrs. Shafter or complainants. Jacksonv. Cleveland 15 Mich. 94.
Could it be shown by parol evidence that the deed was made subject to an express trust in favor of the children of the grantor and grantee ?
By How. Stat. § 5563, (Comp. L. § 4114,) all trusts are abolished, except such as are authorized in the chapter relating to uses and trusts. Trusts arising or resulting by implication of law are saved in express terms, and express trusts are authorized for several purposes, and among them, for the beneficial interest of any person or persons, -when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the limitations, as to time, prescribed in the statute.
How. Stat. § 6179, declares that no estate or interest in lands, other than leases for a term not exceeding a year, nor any trust or power over or concerning lands, or in any mariner relating thereto, shall be created or declared unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating or declaring the same.
Since the passage of the foregoing enactments in 1846 no express trust has ever been allowed to be engrafted by parol on a conveyance, but has uniformly been held to be void. Trask v. Green 9 Mich. 366; Groesbeck v. Seeley 13 Mich. 345; Newton v. Sly 15 Mich. 396; Brown v. Bronson 35 Mich. 415; Palmer v. Sterling 41 Mich. 220.
At the- time the deed was executed to Hugh M. Shafter there was no deed or conveyance in writing subscribed by the party creating or declaring the trust; and it is equally clear that no trust was raised by act or operation of law. It is needless, therefore, to pursue the investigation further. It can make no difference in the result whether defendant Huntington had or had not notice of the parol agreement under which the land in question was conveyed to Hugh M. Shafter. He was the owner of the legal title to that portion of the land conveyed to him by Alonzo B. Sumner, and it was not burdened or incumbered with any valid trust in his hands.
The bill is framed and the relief sought upon the supposition that the whole title to the land passed to Hugh M. Shafter by the deed from Alonzo B. Sumner. It is apparent, however, that such was not the case. The title to this parcel descended, by virtue1 of the statute, in equal shares to Alonzo B. Sumner and Mrs. Eliza Shafter, and the quitclaim deed from Sumner to Mr. Shafter only conveyed to him an undivided half, the title to the other half remaining in Mrs. Shafter, and upon her death descended to her children. For obvious reasons, no relief can be granted complainants in this suit based upon this fact.
Neither do we consider it proper to pass upon the questions of adverse possession or the validity of the tax title, as, under the views we have taken in the disposition of the case, they are quite immaterial.
The decree is affirmed.
The other Justices concurred. | [
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Champlin, J.
This is a proceeding under Act No. 193 of the Public Acts of 1883, in which a receiver was appointed of the property and effects of. Lafayette Mumford. The facts, briefly -stated, are as follows: Lafayette I^umford was engaged in business in the village of Kalamazoo, and had been for some time prior to the 21st da,y of August, 1882. On said date he executed a chattel mortgage upon his entire stock in trade to Charles S. Dayton, cashier of the Kalamazoo City Bank, to secure the sum of two thousand five hundred dollars, which mortgage was not- placed on file until the 5th day of October, 1883. On the 6th day of October, 1883, Mumford conveyed to his wife, Anna Mumford, a stock of goods at Battle Creek, (where he was also doing business,) and certain other property, all of the value of several thousand dollars, in payment of an alleged indebtedness' to her. On the 8th day of October, 1883, Mr. Mumford gave another chattel mortgage to Charles S. Dayton to secure the sum of two thousand three hundred and seventy-two dollars and sixty-six cents, which was on the same day filed with the town clerk, and covers his entire stock in trade at Kalamazoo and elsewhere, and was given to secure the same indebtedness that the first chattel mortgage secured. On the 16th day of October, 1883, Mumford made a general assignment for the benefit of creditors to Henry E. Hoyt, subject to the chattel mortgages made to Dayton, and not including the Battle Creek stock.
It is claimed that Mumford, when he made the transfer to his wife, and when he made the second mortgage to Dayton, was insolvent, and was largely indebted to various persons, and among them, to the petitioners in this case. Messrs. Kisser & Keitz, of Chicago, Illinois, and Peter Hayden, of Detroit, Michigan, being creditors of Mumford, filed their petition- before Hon. Alfred J. Mills, judge of the circuit court of Kalamazoo county, setting forth the mortgages to Dayton which they claimed to be preferences prohibited by the act, and the sale to Mrs. Mumford which they alleged to be fraudulent; and also the assignment to Hoyt, which they also claimed to be void. This, petition was presented to the circuit judge at chambers, upon which he granted a restraining order, and fixed a day of hearing upon the petition, and a citation to Lafayette Mumford, Ann Mumford, Charles S. Dayton, Horace M. Peck, Henry E. Hoyt, and the Kalamazoo Wagon Company, to appear before him and show cause why the prayer of the petition should not be granted and a receiver appointed as therein prayed for. A hearing was had, testimony taken, and the judge declared the mortgages and sale were executed to prefer the bank and Mrs. Mumford over the other creditors of Mumford, and ordered a receiver to be appointed, with all the powers of a receiver under Act No. 193, and that such receiver proceed according to the provisions of said act. The secured creditors contested these proceedings, and after the order was made appointing a receiver, sued out a writ of certiorari, and the record has been removed into this Court.
The petitioners assign several errors to the proceedings, the more important of which we shall proceed to consider.
It is claimed that Act' No. 193 of the Laws of 1883, upon which the proceedings are based, is unconstitutional; and our attention is called to four provisions of the Constitution with which this Act conflicts:
1st. Sec. 20, art. IY., which provides, “No law shall embrace more than one object, which shall be expressed in its title.”
2d. Sec. 27, art. YI. which provides, “ The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties in such manner as shall be prescribed by law.”
3d. Sec. 32, art. YI., which provides, “No person shall be compelled, in any criminal case; to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.”
éth. Sec. 1, art. VI., relative to judicial power.
The title of the Act under consideration reads as follows : “ An act to prevent debtors from giving preference to creditors, and to secure the equal distribution of the property of debtors among their creditors, and for the release of debts against debtors.”
It will be necessary, for a proper understanding of the objections made, to recite at considerable length the provisions of the Act.
Section one enacts “that whenever the property of any debtor is attached or levied upon by any officer, by virtue of any writ or process issued out of a court of record of this State, in favor of any creditor or garnishment made against any debtor, such debtor may, within ten days after the levying of such attachment, process, or garnishment shall have been made, make an assignment of all his property and estate not exempt by law, for the equal benefit of all his creditors in proportion to their respective valid claims, who shall file releases of their debts and claims against such creditors as hereinafter provided, * * * and upon the making of such assignment, all attachments, levy, or garnishment so made shall be dissolved upon the appointment and qualification of an assignee or receiver, and thereupon the officers shall deliver the property attached or levied upon to such assignee or receiver.”
By section two it is enacted that when any debtor being insolvent, shall confess any judgment or do any act or make any conveyance whereby any one of his creditors shall obtain a preference over any other of his creditors, or shall omit to do any act which he might lawfully do to prevent any one of his creditors from obtaining a preference over his other creditors, contrary to the intent of this act, or if he shall not within ten days after any levy by attachment, execution or garnishment made against him, make an assignment of all his property as provided in section one of the act, or within such time, in good -faith institute proceedings to vacate the attachment and execution or garnishment, or secure a release of such levy, and defend against the said garnishment at the first opportunity, then or within sixty days thereafter, any two or more of his creditors holding and owning debts or claims of not less than two hundred dollars in the aggregate amount may make a petition to the circuit court, or a judge thereof, setting forth therein such matters and facts as may bo pertinent, which petition may be heard in any county in the discretion of the judge; and after notice given in pursuance of the order of the court and in such manner as the court may direct, to the debtor and creditors sought to be preferred, of the time and place of hearing, the court in the term time, or judge in vacation, shall proceed summarily upon such petition to hear the parties, and receive such evidence as may be proper; and if it shall appear to the court or judge that the debtor is insolvent, or has been giving or is about to give a preference to any of his creditors over other of his creditors, or any of them, or lias refused or neglected to make an assignment of his property as herein provided, the court or judge shall, appoint a receiver, who shall take possession of all the debtor’s property, evidences of property or indebtedness, books, papers, debts, choses in action, and estates of every kind of the debtor, including property attached or levied upon or garnished, in the manner and subject to the limitations herein provided, and of all property conveyed in violation of the provisions of this act, and have charge and control of the same, and all debts or property garnished, except property exempt’ by law, and shall convert the same into money, and shall marshal and distribute the same among the several creditors in proportion to their several claims, who shall file releases of all claims against the insolvent debtor, in consideration of the benefit of the provisions of this act as hereinafter provided, whether their claims are due or to become due, and who shall come in and prove their respective claims within such time and in such manner as the court or judge shall direct, and the pourt or judge shall order the debtor to file a schedule of his debts, and to whom they are due and payable, and of his property, including all notes, accounts and bills payable to him, and the proof; and the payments of dividends in all proceedings shall be had under the provisions of the laws of this state relating to receivers, and the court or judge may order and direct such debtor to do whatsoever is necessary and proper to carry this act into effect.
Section 3 provides that “no assignment hereafter made, for the benefit of such creditors, shall give to any one creditor a preference over the claims of another creditor, except in cases expressly provided by law. If any insolvent debtor shall confess, or suffer judgment to be procured in any court, with intent that any one of his creditors shall obtain a preference over any other of his creditors, such insolvent debtor shall be deemed guilty of a misdemeanor, and punished by a fine not exceeding five hundred dollars, and in default of payment, shall be imprisoned in the county jail for a period not exceeding six months. The court may, at any time, upon the filing of affidavits, or other evidence satisfactory to the court, grant an order restraining such debtor from collecting any bills, notes, accounts, or other property, or from disposing of, or in any manner interfering with the property of said estate, or may, by writ of ne exeat, or by order, restrain said debtor from leaving the State, until the further order of the court, or may require him, at any time, to appear and make full disclosures as to any disposition of property, or in relation to any other matter pertaining to said estate.”
Section 4 enacts that “conveyances and payments made, and securities given by any insolvent debtor, or a debtor in contemplation of insolvency, within four months of making an assignment, as provided in section one of this act, with a view of giving a preference to any creditor, upon a pre-existing debt, or to any persons under liability for such debtor over another, shall be void as to all creditors or persons receiving the same, who shall have reasonable cause to believe that such debtor was insolvent, and all such conveyances made, and securities given, at any time, unaccompanied with a delivery, or change of possession of the property to'the grantee, unless the instrument containing the grant, or conveyance shall have been duly filed, or docketed, before the commencement of such sixty days, shall be void, as a preference, as to any creditor; and they may, by action, or other proper proceedings, have all such conveyances, payments, and preferences annulled and adjudged void, and recover the property so conveyed, or the value thereof, and recover the payment so made, and convert all the proceeds into money, as provided in this act: Provided, that the provisions of this act shall not apply to any payment or satisfaction, in whole or in part, ■of a past-due debt made in the usual course of business, without any intent on the part of the creditor to evade the provisions of this act.”
Section 5 provides where proceedings shall be commenced, and for adding new parties as petitioners.
Section 6 provides that, where attachments or levies are dissolved by proceedings under the act, the attorney for petitioning creditors shall be allowed a reasonable attorney’s fee, not to exceed twenty-five dollars, which shall be preferred and first paid by the receiver.
Section Y provides that all actions and proceedings may be commenced and prosecuted in the name of the assignee or receiver, and that the laws of this State, of a general nature, applicable to receivers and assignments, not conflicting with the act, shall apply to assignees and receivers appointed thereunder.
Section 8 allows an appeal to a creditor, whose claim has been disallowed in whole or in part by the assignee, to the circuit court, and to have such claim tried there as other civil actions.
Section 9 provides for the filling of vacancies in case of death or removal of assignee or receiver.
Section 10 deprives any creditor of the benefit of sharing-in the distribution of the debtor’s assets, who does not file with the clerk of the circuit court a release of the debtor of all claims other than such as may be paid under the provisions of the act, and authorizes the court or judge to direct that judgment be entered discharging such debtor from all claims or debts held by creditors who shall have filed releases. If, however, before the time for the distribution of the insolvent’s assets among his creditors, any creditor can make it appear that the debtor has fraudulently concealed or ineum bered or disposed of any of bis property, or fraudulently incurred any apparent indebtedness, or confessed any judgment, with the intent to cheat or defraud his creditors, or that he has fraudulently, or in contemplation of insolvency, incurred any of his indebtedness, the judge, in his discretion, may order that all the debtor’s assets may be distributed among the creditors upon their filing releases, or that they be distributed among his creditors without their filing releases. The hearing is to be had before the judge summarily, without the allegations of the complaint being denied or controverted, and he may hear such legal evidence as he deems pertinent, and then is to decide according to his discretion.
Section 11 relates to the notice to be given by the assignee or receiver of his appointment, and it provides that all creditors claiming to obtain the benefits of the act shall 'file with such assignee or receiver their claims within twenty days after the publication of the notice.
Section 12 provides that after payment of costs, debts due the United States, the State of Michigan, all taxes or assessments levied and unpaid, expenses of the assignment and executing the trust, the assignee or receiver shall pay in full, if sufficient then remains for that purpose, the claims duly proven of all servants, clerks and laborers for personal services or wages owing from said debtor, for services performed for the three months preceding said assignment, not exceeding fifty dollars in each case, and the balance of the estate shall then be equally distributed among the general creditors thereof under the direction of the court.
The rules for construing a statute of this kind are familiar. It is in derogation of the common rights of creditors. It authorizes summary proceedings, by which extraordinary powers are given to courts and officers, the effect of which is to divest or affect rights of property, and according to the well settled and wholesome rule it must be strictly construed, and the authority conferred closely jmrsued.
By article YI of our Constitution the judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace. The Legislature is also authorized to establish municipal courts in cities, and courts of conciliation. The courts referred to in this article are permanent organizations for the administration of justice; and it has been held that the term does not. apply to those special tribunals which the law occasionally calls into existence for particular exigencies, and which cease to exist when the occasion ceases. In such cases judicial power to a limited extent is lodged in the hands of different officers for specified purposes, to be called into action as occasion may require. The exercise of this power by such tribunals is exceptional, and has been recognized and held valid only because they were under statutes in force before the Constitution was adopted, and which it was believed were not intended to be abrogated by it; or because the proceedings were preliminary and collateral to the principal proceedings, and where the officer does not render a final adjudication on the rights of the parties. Rowe v. Rowe 28 Mich. 356; Shurbun v. Hooper 40 Mich. 503; Daniels v. People 6 Mich. 381; Edgarton v. Hinchman 7 Mich. 352; Streeter v. Paton 7 Mich. 341. But the exercise of judicial power in its strict legal sense can be conferred only upon courts named in the Constitution. The judicial power referred to is the authority to hear and decide controversies, and to make binding orders and judgments respecting them. Daniels v. People 6 Mich. 381; Underwood v. McDuffee 15 Mich. 361.
Section 2 of this act confers upon the judge in vacation the authority to hear and determine summarily upon the questions of the insolvency of the debtor; the giving or attempting to give preferences; his refusal or neglect to make assignment of his property; and his orders and judgment (if he makes any) are final and conclusive. If he determines the question adversely to the debtor, he is required to appoint a receiver, who is commanded to take possession of the debtor’s property and estate of every kind, including all property attached, levied upon, or garnished, and all property conveyed in violation of the provisions of the act, except such as is exempt, convert it into money, and distribute it among such creditors as shall release their claims against the debtor. A more thorough confiscation of a man’s property cannot well be imagined. The judge is not required to keep á minute of his proceedings, much less a record. The petition is to be made to the court or judge, and if made to the judge is not required to be filed anywhere. The judicial power conferred by the act is absolute, and its effect is to deprive the debtor of his property, and the creditor of his security.
Section 10 authorizes the circuit judge to hear summarily the complaint of any creditor in opposition to the debtor’s release. He may allow the debtor to appear before him, ■and he may proceed without the allegations being controverted or denied, and he may hear such legal evidence as he may deem pertinent, and 'then he may, m Ms discretion, •order that all the debtor’s property not exempt by law be distributed among his creditors without their ’ filing releases. It may be noted that the law, after leaving it discretionary with the judge, directs that if the circuit judge shall find the allegations of the complaining creditor to be true, he shall order and direct that all of the debtor’s property and assets not exempt by law shall be distributed among his creditors without their releases being filed. Here again the judge ( and it will be noticed that the court is not mentioned in the proviso of this section) hears and decides, and makes final order adjudicating upon acts of parties which •affect property rights and interests, and upon matter which, by section 3, is denominated a misdemeanor, 'and punishable by fine or imprisonment.
A statute which confers such judicial powers upon a circuit judge at chambers is clearly in conflict with article TI. sec. 1, of the Constitution. What has been said refers particularly to that feature of the law conferring judicial power upon the circuit judge; and the question arises whether, if no other objections exist against the constitutionality of the law, it can be sustained and rendered effective where the proceedings are begun and carried on in the circuit court. Sections two and ten are necessary ¡Darts of the system, and de pend upon each other. Eights of creditors could not be protected without the provisions contained in the proviso; It is essential to prevent preferences, and has a direct bearing on the question of the release of the debtor; and we do not think the intent and object of the act could be carried out with the unconstitutional provisions stricken out.
Another important question is whether the act takes, away the right of trial by jury. The only provision made for a jury is in section 8, when a claim is disallowed by the assignee in whole or in part. But there are other questions which arise, anterior to this allowance or disallowance of claims, which are of far more importance, both to the debtor and to creditors, and upon the determination of which important rights are involved, and arise at the threshold of the proceedings. They are jurisdictional in their character, and are —first, Are the petitioners creditors of the debtor? and, second, Has the debtor given, or is he about to give, a preference to any of his creditors over others ; or has he refused or neglected to make an assignment of his property, as provided in the act? These inquiries involve valuable property rights under the act, and affect the citizen in the possession, control and disposition of his property. They involve questions of fact which are proper to be submitted to a jury.
It is claimed that a jury trial maybe secured by the debtor or creditor or sheriff or other officer having property attached or in execution in his possession, by defying the authority of the receiver and refusing to deliver it up, and putting the receiver to his action to recover the property or its value. If the law is valid it is the duty of the debtor, creditor and sheriff to deliver up the property on demand, and it authorizes the receiver to seize it .and take it into his custody. Eesistance to his authority would tend to provoke a breach of the peace, and unseemly tumults would be the probable result; and parties resisting would be brought into contempt, besides incurring the penalties prescribed by law for such acts. How. Stat. § 9257. Of what avail is this provision of the Constitution if a statute may take away or not provide for a trial by jury, and the party be forced to secure it by the circuitous route suggested. The question of the right of the debtor to be released■> from the payment of his debts is one which the contesting party has the right to have tried by a jury. The creditor is called 'upon to release a portion of his claim against his debtor. The consideration therefor, as expressed in the act, is the benefit he receives from its provisions. These provisions require that the debtor shall not have given any preference contrary to them; that he shall not have fraudulently concealed or incumbered or disposed of any of his property, or fraudulently incurred any apparent indebtedness, or confessed any judgment with intent to cheat or defraud his creditors, etc. Under the insolvent laws of this State, which existed prior to the adoption of the present Constitution, and which authorized the discharge of the insolvent debtor by consent of two-thirds of his creditors, upon his surrendering his property, any creditor might oppose his discharge for reasons similar to those contained in this act, and a provision was made for trial of these issues by a jury. These questions of fraud, which are involved both in the initial and final proceedings, are proper to be submitted to a jury; and where fraud constitutes the main questions of contention, and is disconnected from those of an equitable nature, the common-law courts are the proper forums in which they should be tried.
In speaking of the right of trial by jury under a similar provision of the constitution of the state of Vermont, the supreme court of that state says: “ The general rule of construction in reference to this provision of the constitution is, that any act which destroys or materially impairs the right of trial by jury according to the course of the common law, in cases proper for the cognizance of a jury, is unconstitutional. * * * All the rights, whether then or thereafter arising, which would properly fall into those classes of rights to which by the course of the common law the trial by jury was secured, were intended to be embraced within this article. Hence it is not the time when the violated right first had its existence, nor whether the statute which gives rise to it was adopted before or after the constitution, that we are to regard as the criterion of the extent of this provision of the constitution ; but it is the nature of the controversy between the parties, and its fitness to be tried by a jury according to the rules of the common law that must decide the question.” Plimpton v. Town of Somerset 33 Yt. 288.
In Rhines v. Clark 51 Penn. St. 96, it was held that an act providing for ascertaining damages done by a mill-dam was unconstitutional, because the arbitrators therein provided for were not obliged to act, and because it did not secure a trial by jury.
A statute of Pennsylvania authorized the court of common pleas, upon petition, in cases where ground rents have been or may be extinguished by payment or presumption of law but no deed of extinguishment or release thereof had been executed, to make decree declaring the ground rent released and extinguished. The court was required to make order for giving notice, etc., and on due proof being made of the truth of the petition, to make the decree. Mr. Justice Sharswood, speaking of this law and the proceedings authorized by it, said that unless the proceeding could be upheld as being within the jurisdiction of a court of equity, it must be declared unconstitutional, and he considered it well settled (citing North Penn. Coal Co. v. Snowden 42 Penn. St. 488; Norris’ Appeal 64 Penn. St. 275; Tillmes v. Marsh 67 Penn. St. 507) that “an act of assembly cannot vest in a tribunal like a court of chancery, acting without a jury, the power to determine upon the legal rights of parties, unless there exists some equitable ground of relief. * * * The learned judge who delivered the opinion of the court below, appears to have thought that because ‘ there is nothing in the law which would prevent the court from sending every such case as this by a general rule to a jury,’ it may therefore 1 very well be questioned whether this act does in fact absolutely deprive the parties of a jury trial.’ But as such a general rule, or the award of an issue in any particular case, would be entirely in the discretion of the court, it is clear that the parties have not secured to them their constitutional right of trial by jury. They would in effect hold it at the mere pleasure of the court.” Sames’ Appeal 73 Penn. St. 169.
Under the recent Bankrupt Act of the United States the right of trial by jury was secured upon these questions, and it was held that the process, pleadings and proceedings in such cases must be regarded as governed and controlled by the rules and regulations prescribed in the trials of civil actions at common law. Insurance Co. v. Comstock 16 Wal. 258. The debt and the act of bankruptcy taken together constitute the cause of action. The defense may controvert either of these or both. In re Ouimette 1 Sawy. 47. The objection that the petitioners are not creditors goes not only to their disability, but to the jurisdiction of the cause. In re Cornwall 9 Blatchf. 114. Under this act, although the law did. not provide for notice to the preferred or attaching creditor yet it was held that such creditor had the right to appear and oppose the adjudications and that he might contest upon the merits and take advantage of a,ny defense available to the debtor. In re Husted 5 Law Rep. 510; Clinton v. Mayo 12 N. B. R. 39; In re Walter S. Derby 8 N. B. R. 106; In re Elias G. Williams 14 N. B. R. 132; In re S. Mendleshon 3 Sawy. 343. Under Act No. 193 notice is required to be given, jiot only to the debtor but to *the preferred creditor, and it follows that such creditor may avail himself of any defense open to the debtor. This disposes of the objection made at the argument, that the creditor cannot raise the question of the right of a trial by jury.
Attention has been called to the fact that Act No. 193 is almost a literal copy of chapter 148 of the general laws of the Staté of Minnesota passed in 1881, and that the supreme court of that state has pronounced the law constitutional there; and counsel urge that in adopting the law from that state the Legislature adopted the construction placed upon it by its courts. This rule of construction, sometimes recognized, is not always adopted, and never where such construction and the statute construed are in conflict with the fund amental law. It would be a dangerous precedent for a court invested with the responsibility of deciding upon the constitutionality of a law, to follow blindly the decision of the courts of another state upon the question, although the opinions of such courts are deserving of great consideration.
In Weston v. Loyhed 30 Minn. 221, the court held the act did not conflict with that provision of their constitution which declares that no person shall be deprived of his property without due process of law ; the court saying that the proceedings were “to be instituted in the district court, and, from the beginning to the end are in and under the control of that court-,” which “ has inherent power, where no limitation is imposed, to so direct the procedure in all causes before it that the legal and constitutional rights of parties may be maintained. We may assume, for it is not questioned here, that no conclusive determination or adjudication in the allowance of debts by the receiver could be sustained upon constitutional grounds, whether the same was made ex parte, or upon notice and hearing ; that such a proceeding would not be ‘ due process of law.’ But we find nothing in the section indicating that it was intended that the action of the receiver, in this regard, should conclude any party interested in the proceeding. The act does not point out the method of procedure to be pursued by a party who may be unwilling to accept the decision of the receiver, but the administration of this law and the control of the procedure being committed to the court whose jurisdiction is general at law and in equity, it remains for that court, whenever the occasion shall require and the exercise of its power shall be invoked, to devise or direct such a course of procedure that the object of the law may be accomplished in a legal and valid distribution of the insolvent estate.”
It needs no argument to demonstrate how inapt this reasoning is to the framework of government under which legislative and judicial power is exercised in this State. It concedes that a proceeding in accordance with the statute would not be “due process of law,” but deficiencies in the legislative act are to be supplied by the court as occasions arise, and the court is “ to devise and direct such a course of procedure that the object of the law may be accomplished.” Another provision of our Constitution stands in the way of adopting this decision as a correct exposition of the law. The judiciary are prohibited from exercising legislative functions.
In Wendell v. Lebon 30 Minn. 234, the same court held that section 2 of the act did not conflict with that provision of their constitution which provides that no person shall be deprived of his property without due process of law; nor with another provision of their constitution declaring that the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy. Upon the latter point the court say: “We are not prepared to say that the issue as to whether an insolvent debtor had fraudulently concealed, or fraudulently incumbered or disposed of any of his property, with the intent to cheat and defraud his creditors, might not, under the provisions of section 10 of the act of 1881, be submitted to a jury. But, however that may be, a comparison of the old insolvent law and the Act of 1881 will show that, although having some resemblance to each other in some of their provisions, they are entirely different acts, both in their scope and effect, and that the issue to be submitted to a jury under section 8 of the old law is not onty different in itself, but for an entirely different purpose, from that to be determined under section 10 of the present act. The Act of 1881 is an entirely new act, creating in effect a new tribunal, where proceedings are not e at law,’ or according to the course of the common law, but are special in their nature, and correspond more nearly to the proceedings in a court of equity. The constitutional provision invoked does not apply to proceedings of this kind. Ames v. L. T. & M. R. R. Co. 21 Minn. 241, 293; City of Minneapolis v. Wilkin 30 Minn. 140.”
The reason assigned by the court that the act is a new one, creating’ a new tribunal whose proceedings are not “at law” or according to the course of the common law, but special in their nature, corresponding more nearly to a court of equity, does not appear to me to be sufficient to uphold the constitutionality of the law as against the objection made. It was against the enactment of new laws which ignored the proceedings according to the course of the common law, and provided summary methods of determining legal rights, that the protecting shield o f the Constitution was required. The true criterion is, does the act destroy or materially impair the right of trial by jury according to the course of the common law, in cases proper for the cognizance of a jury ? The nature of the controversy between the parties, and its fitness to be tried by a jury according to the rules of the common law, and not the nature of the tribunal, nor the summary mode of proceeding therein, should decide the question. The cases cited as the basis of the opinion of the supreme court of Minnesota would find no support in this State under our Constitution. Underwood v. People 32 Mich. 1; Swart v. Kimball 43 Mich. 443; People v. Smith 9 Mich. 193; Tabor v. Cook 15 Mich. 322; Paul v. Detroit 32 Mich. 109; Woodbridge v. Detroit 8 Mich. 297, 300; Williams v. Detroit 2 Mich. 560; Campau v. Detroit 14 Mich. 276; People v. Brighton 20 Mich. 57; Chicago &c. R. R. Co. v. Sanford 23 Mich. 418; Mansfield &c. v. Clark 23 Mich. 519; G. R. &c. R. Co. v. Van Driele 24 Mich. 409; Horton v. Grand Haven 24 Mich. 465; McClary v. Hartwell 25 Mich. 139; Arnold v. Decatur 29 Mich. 77; Powers' Appeal 29 Mich. 504; Ryerson v. Brown 35 Mich. 333.
Neither do I see how, under section 10 of the act of 1881, such question can be submitted to a jury when requested by either party. There is no provision for a jury. In People v. Lawton, Judge of Probate 30 Mich. 386, this Court held that a law was not enforceable unless it furbished adequate means to secure the purposes for which it was enacted. The fault in that case was the failure to provide for a jury to try j;he charge in the probate court. Other cases have arisen under the act, and have been determined by the supreme court of Minnesota, but they are only interesting in this discussion as showing to what extent that court is called upon to supply defects in the law. In Re Barnard 30 Minn. 512, that court held that making a petition to the wrong county court did not go to the jurisdiction over the subject-matter, or the debtory that at the time appointed for hearing, the debtor might apply to have it removed to the proper county. The court very justly adds: “ It must be admitted that there are difficulties in the way of this construction, but there are difficulties in the way of any other. * * * But this is not the first occasion upon which this court has found it necessary to subject its imperfections in details of practice to rigorous construction.” In Re Pauline Graeff 30 Minn. 358, it was held that an appeal lay to the supreme court from an order appointing a receiver, under chapter 86, sec. 8, subd. 6, which provides that the aggrieved party may appeal to the supreme court from a final order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment. In Re Pauline Graeff 30 Minn. 476, the court said: “ The court is of opinion that the confession of judgment by an insolvent debtor in favor of one of his creditors justifies the filing of a petition by his other creditors, without reference to whether such creditor did or did not thereby in fact obtain a preference.”
Perhaps in that state, where the functions of law and equity procedure are not kept distinct as here, but are all administered as civil actions, and where, by a constitutional amendment adopted in 1875, the district judges “severally have and exercise the powers of the court, under sxich limitations as shall be prescribed by law,” the act in question may be considered constitutional, and its defects supplied by a liberal exercise of judicial power and rigorous construction. But our Constitution does not confer such power upon circuit judges, and our courts cannot supply defects in legislation.
I do not decide that there are not many questions which might be raised under this statute which'it would be competent for a court to decide without the intervention of a jury, and I confine myself to those which are of common-law cognizance, as distinguished from those of an equitable nature. For instance, under section 2 of this act two facts, at least, must concur before the debtor can be deprived of his property : 1. He must owe three or more debts, two at least amounting in the aggregate to not less than $200; 2. He must have done some act, or omitted to do some act, which this section prescribes shall entitle two or more creditors to file a petition. These acts are treated as a fraud upon the rights of other creditors, and constitute the gist of the proceedings. Such issues, involving the elements of fraud both as to the debtor and creditor alleged to have been preferred, are such as are peculiarly appropriate for a jury, and the right to have such trial cannot be taken away by a summary proceeding of this kind. Whitley v. Gaylord 3 Jones (N. C. L.) 286; Purvis v. Robinson 4 Jones (N. C. L.) 96. There is a class of cases where it is competent to enter judgment upon motion without the intervention of a jury, such as upon appeal bonds, recognizances, and the like; but in these cases the breach is known to the court as matter of record, and there can be no matter of fact in pais to be tried. In such cases no constitutional right is violated. Hiriart v. Ballon 9 Pet. 156; People v. Quigg 59 N. Y. 83; Chappee v. Thomas 5 Mich. 53; Lang v. People 14 Mich. 439.
Prom what has been said concerning the deprivation of the right of trial by jury, it is apparent that the act deprives parties of their property -without due process of law. It does not provide that there shall be an adjudication upon the allegations of the petition; but simply enacts that if it shall appear to the court or judge that the debtor is insolvent, or has been giving or is about to give a preference, &c., he shall appoint a receiver. This he is authorized to do without a determination as to the fact duly pronounced by the court. The debtor is treated as an adjudicated bankrupt without adjudication. If we take Mr. Webster’s definition, which is terse, and as accurate as any, viz.: “By the ‘law of the land ’ is most clearly intended the general law, which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, and property under the protection of general rules which govern society. Everything which may pass under the form of enactment is not the law of the land,” — and apply it to this act, we find that provision is made for inquiry and execution, but none for judgment. The method of inquiry is not according to the course of the common law. In no proper sense is a trial had at all. The proceeding is to be summary; the parties are to be heard, and such evidence received as may be proper. The court or judge does not ascertain judicially that the debtor has forfeited his privileges, or that his creditors have a superior title to his property, and therefore it shall be taken from him. With certain limitations and exceptions, not necessary to be noticed here, because the proceedings authorized by this statute do not fall within them, “ the words, due process of law,’ cannot mean less than a prosecution or suit according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property.” This language must be taken with the important limitation that the forms and solemnities required must be such as were essentially in existence at the time of forming the constitution as a part of the ordinary means of administering justice. Per Bronson, J., in Taylor v. Porter 4 Hill 140.
It is claimed for this hearing that it is merely preliminary, and that no rights are determined- or divested by it; and as supporting this position we are cited to the case of O'Neil v. Glover 5 Gray 144, where it was held that an adjudication under the insolvent law of Massachusetts did not conflict with this constitutional provision because it was merely preliminary in its nature, and did not finally determine the question of indebtedness, or deprive the debtor of his property or estate. .This cannot be said of the act in question. Hnder it, can the hearing upon the petition be regarded as merely preliminary ? What right has any one to wrest the property of the alleged debtor from him and convert it into money, and distribute it to other parties, without a final adjudication upon the issues submitted? If these inquiries are merely preliminary, when, in the later stage of- the proceedings, are the issues tried and the questions determined whether or not the debtor has, by active means or passive inaction, committed a fraud upon his creditors which entitles an officer of the court to take possession and control of all his property, except what is exempt, and administer his estate against his will? To the debtor and to the preferred creditor it is the principal question in the whole controversy, and the decision of it virtually ends the contest. The determination has the effect of a judgment at law upon which an execution issues, and lays hold of all the debtor’s property. It is even more extensive; it has the effect of a decree in chancery upon a judgment creditor’s bill, which draws into the hands of the court all the estate, legal and equitable, of the debtor. A determination which lies at the foundation of such important consequences is not merely preliminary.
I am of opinion, for reasons above given, that the law in question is unconstitutional.
Sherwood, J., concurred.
Cooley, C. J.
I am not prepared to assent altogether to the views on the constitutional aspects of this case which are presented in the opinion of my brother Champlin, and as the result of the case does not depend upon them, I shall present my own views separately.
I have no doubt that if the Act could be enforced at all, some of the contested questions which might arise in any case would necessarily, at the option of the parties, be tried by jury, and it would be necessary to give the statute such a construction as would admit of such a trial. But the framers of the Act probably contemplated such a trial of some of such questions, though they have not expressly provided for it. The provision in the Act for a writ of ne exeat, at the discretion of the circuit judge or circuit court, is unquestionably-unconstitutional. Under it a debtor who was unable or unwilling to give bail, might at the mere will of the judge be kept in jail indefinitely ; and the authority thus to imprison him is plainly in conflict with the constitutional inhibition of imprisonment for debt. Const. Art. YI. § 33; Bailey v. Cadwell 51 Mich. 217. And much of th'e summary power which the Act undertakes to confer upon the circuit judge sitting at chambers, it must be quite impossible to give to any officer not at the time sitting as a court, When the Constitu tion in terms vests the judicial power of the State in certain specified courts. Article YI. § 1. But if the constitutional objections in regard to judicial power to act were all to which the Act was obnoxious, it is possible that in its main features it might be upheld and enforced through the circuit courts. An objection more plainly fatal is that the Act gives no sufficient means whereby it may be enforced, and the rights of parties protected.
The Act contemplates that the proceedings under it may be taken indifferently in the circuit court, or before one of the circuit judges at chambers. The circuit courts are not insolvency courts, except as they may be made such by this Act, and they have no rules or course of procedure to which proceedings under this Act can be conformed. Unless the Act itself furnishes a sufficient rule for the guidance of courts and judges acting under it, each court and each judge must be left to devise a course for the particular case. To do this would require an amount of legislation quite beyond what courts and judges are commonly expected to attempt.
It will readily be perceived, from the summary of the statute, which has been given, that a proceeding under the Act is intended not only to be a bar to all claims, but also to determine adverse claims to property as between the receiver, representing the general creditors on the one hand and persons claiming to be purchasers and lien creditors on the other. It is therefore a proceeding which often may have the importance of several suits at law; and it is of vital necessity, therefore, that careful provision be made for a hearing in all important stages to all parties concerned.
The Act is singularly deficient in providing for such a hearing. When application is made for the appointment of a receiver, after the debtor has made an assignment, the second section of the act provides for no notice whatever, except to the debtor and such creditors as he may have sought to prefer, and the notice to be given to them is left exclusively to the judge’s discretion. But upon this application the judge is expected to proceed summarily, and he may make an order, the effect of which will be to change very materially the rights of creditors not notified, and to force from them a release of their claims as a condition of participating in the fund. It cannot be assumed that all creditors will desire the appointment of a receiver, and that their assent may be taken for granted: it may well happen that they will greatly prefer to take their rights under the common law assignment; and they should certainly be given the opportunity to express their desires in this regard. The judge is also expected to adjudicate summarily upon supposed attempts by the debtor to give preferences, and the receiver, if one is appointed, is to take possession of the debtor’s estate, “ including property attached or levied upon or garnished in the manner and subject to the limitations herein provided, and of all property conveyed in violation of the provisions of this act,” etc. It was admitted on the argument that it would not be competent for the legislature to confer upon any court the authority to proceed thus summarily to adjudicate contested rights, and it was said that parties claiming as purchasers or as lien-creditors could not be summarily dispossessed by the receiver, but would have a right to have a hearing, in some regular suit instituted at law or in equity, and proceeding according to the established course of the court in which it should be brought. We agree that the right to a trial must remain whether the statute intends it or not; but the failure to make express provision for it is one of the many difficulties which the act presents. As the attempt to give a preference of one creditor over another will commonly be the ground for the appointment of a receiver, a curious anomaly would appear, if, after the appointment was made, it should turn out in the subsequent suits to which the receiver should .resort, that there had in fact been no such attempt. But this might well happen if the summary adjudication by the court preliminary to the appointment of a receiver is held to bind no one.
Section eleven requires the receiver to publish notice of his appointment in some newspaper of the county in which the debtor or one of the debtors resides, and also to send notices by mail to creditors whose residence is known to him. The creditors must then, if they would have the benefit of the Act, file their claims within twenty days after the jrablication. This limitation of time when creditors are to be brought in by publication, and when the publication is of a kind not at all likely to be brought to the knowledge of creditors at a distance, is wholly unreasonable. Besides, the section makes no provision whatever for notice when the debtor is not a resident of the State. Section five permits the petitioner in such a case to select such county as he pleases in which to institute the proceeding, and it is easy to see that the Act might be made use of by a dishonest debtor and his friends to appropriate his estate for the benefit of a few, by means of proceedings begun and conducted with a view to keep within the letter of the Act while disregarding its spirit, and by summarily creating and settling up the trust before the creditors in general should be aware of its existence. The Act seems very well calculated to invite and facilitate frauds, instead of furnishing securities against them.
The eighth section, in providing for an appeal from the receiver to the circuit court, reads as if it were supposed a regular issue would be made up and submitted to the receiver for his judicial action, and that an appeal to the court would carry up that issue for trial. But as the receiver has no judicial power whatever, it is difficult to understand what is meant by this appeal. There must be a suit of some sort ; but who shall be sued and how ? The legislative intent is left wholly to conjecture.
Of the very important proceedings for which this Act provides, no record whatever is directed. They are as informal as they can well be; and the directions given are so vague and general that anything like uniformity of action, in proceeding under the Act, could not possibly be looked for. If the proceeding is before the judge at chambers, he is without a clerk; and it might be conducted with less formality and with less probability of a record on which parties could rely for the protection of their rights, than in the most insignificant action before a justice of the peace. The power of the judge in directing issues and modes of proceeding would be limited only in his discretion, and there would be no review of his action except on the question of jurisdiction.
It is impossible to enforce such a law. The failure to make adequate provision for notice to the parties concerned is fatal to it; but if notice were provided for, it would still be too vague, uncertain and imperfect in its provisions to be an effectual law for the cases it undertakes to provide for. A great deal of legislation would be necessary to give it effect; much more than would fairly be within the compass of rules of court. But the Act does not provide for rules of court: it assumes that the twenty-eight, circuit judges of the State may be called upon severally to work their way through proceedings under it, without guidance, but without confusion, and that just results will always follow. We think, on the other hand, that confusion and doubt would attend every effort to proceed under the Act, and that it would be as likely to be employed to assist fraud as to circumvent it. The law previously in existence guarded against preferences among creditors by an insolvent debtor, and this Act, instead of being in aid of the previous law, would only introduce uncertainty and difficulty.
It is said that a statute similar to this has been sustained in Minnesota. Weston v. Loyhed 30 Minn. 221;. Wendell v. Zebon id. 234. But it does not necessarily follow that the same statute should be sustained here. The Minnesota system of judicial procedure is quite different from ours, and such an act may perhaps receive help in that state from other statutes and from the Code of Procedure, which it could not have here. In this State such an act must fail unless it is sufficient in itself; for it does not come in as a part of any existing system, and has nothing else in the statutes to supply its deficiencies.
Campbell, J. concurred.
Campbell, J.
While I agree with all that has been said by the Chief Justice, and think with him that the statute in question is fatally defective in employing illegal methods, and in not providing legal methods, yet I also think with the other members of the Court that the statute is radically bad in all of its material purposes. It aims at destroying rights which are beyond legislative discretion, and it leaves important interests to be governed by no fixed rules whatever, and subject to the unregulated will of persons who cannot be lawfully empowered to make their will obligatory on others.
I think, as I intimated at the hearing, that the general purpose of this scheme of legislation is itself beyond the competency of a state legislature. There is no reason to believe that any legislature would designedly adopt a system which would put domestic creditors on a worse footing than foreign. It is manifest, however indirectly it may have been attempted, that a principal purpose of this statute is to discharge debtors from their contracts, and to cut off creditors from their rights of action." I think it at least extremely doubtful, under the peculiar Constitution of this State, which not only designates all the classes of courts which the Legislature can establish, but also marks out with some exactness the jurisdiction of each, whether it is possible to provide for such insolvent proceedings as are substantially bankrupt laws, as it certainly is not possible to evade the provisions forbidding imprisonment for debt. But there is no doubt, under the decisions of the Supreme Court of the United States, that foreign debts and debts owned by citizens of other states are beyond the reach of any state insolvent laws. N either can debts already, existing be discharged at all in the hands of any one. The suggestion that this law does not impair the obligation of contracts, because it only acts on willing creditors, is not even plausible. Creditors are authorized to be brought in whether they will or no, and being in they must lose all their advantages gained by such diligence as they have exercised in reliance on the laws of the State, and lose all dividends also, unless they choose to give up their rights as well as their securities. To call such a submission* voluntary is an abusé of language. I prefer, therefore, to rest my objections to this law mainly, as my brethren, Champlin and Sherwood, have, upon those radical faults which make the whole theory of the statute a violation of fundamental rights. I concur substantially in their views on the main questions. | [
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Campbell, J.
White was convicted of bastardy. The offense was alleged and testimony given to prove it to have been committed on the 15th of November, 1881. Errors are alleged concerning the judgment and rulings on the trial and the charge.
The testimony, if true, indicated that probably the act complained of was rape. The testimony not being given in full or in substance, we cannot tell just how this was. It. seems to have been shown without dispute that the person outraged made no outcry or complaint to any one thereafter, and concealed the fact, if it was a fact, from her mother.
The court below refused to allow her to be asked on cross-examination whether she had not, and whether her mother with her had not, stated to various persons named that complainant was going to get a prostitute, then in the House of Correction, out of it, and hire her to swear a case against respondent. And having refused this the court allowed her own counsel to ask her for her version of this conversation.
These rulings” were erroneous and injurious to respondent. Such questions were admissible on two grounds. They were directly important in bearing on the character and veracity of' the witness, and they bore also on her disposition to resort to criminal practices to injure him. And it is very clear that it was improper to allow her to give her own version without cross-examination, and shut out cross-examination.
We do not well see how the jury could be prevented from noticing the child, which was properly enough in court, and while arguments of resemblance in so young an infant, in the absence of peculiarities, are a little preposterous, it is difficult on this record to determine that any rule of law was violated in discussing it. It is the duty of a trial court to-take some pains to prevent an abuse of the functions of counsel in many things which are too intangible to get upon the record. Some extravagance is not unusual in cases involving sensational elements.
The question which the court refused to lay before the jury for specific findings involved facts from which the law could draw no legal conclusion, and therefore there was no error in excluding them for the reasons alleged and for the purposes announced.
We agree in the scruples which were expressed by the circuit judge in regard to allowing young children to be examined concerning indecent questions. But if, as it has been held she might be, the child was a competent witness, there was nothing improper in the questions on which she was sought to be examined. There could be nothing demoralizing in asking how far the complainant lived on terms of intimacy with defendant’s family, as there was no claim anywhere that anything improper occurred between complainant and defendant except on November 15th. It was important to know whether the subsequent social intercourse of the parties was such as was consistent with such a wrong as complainant sets up, and we think it would have been proper to allow this testimony. But we do not think it would be proper to put unclean questions on direct or cross-examination to such a child, as we see no reason to suppose any one would have been vile enough to attempt it.
We think there was some reason to criticise the no doubt unconscious leaning of the judge to bear more heavily on the testimony of the one side than on that of the other. But as the case must be reversed on other grounds we shall not discuss the charge. The judgment which allowed a bond without sureties is not one which could work damage to respondent, unless the imprisonment ordered was unlawful. But no constitutional reason has been pointed out why imprisonment is not lawful for a wrongful act not in any way dependent on contract.
The judgment must be reversed; and inasmuch as the case was regularly in the circuit court for hearing and there was testimony covering the whole matter in dispute, we see no legal reason for not ordering a new trial in lieu of an absolute reversal. The difficulties do not exist here which ordinarily stand in the way of further action below after reversal on certiorari. That-writ may stand for some purposes as a writ of error; and in Cross v. People 10 Mich. 24 we re mitted a reversed bastardy case to the circuit court for further action.
A new trial will therefore be ordered with the reversal. We make no order for costs, as there is some doubt how they can be awarded.
The other Justices concurred. | [
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Boyles, J.
In this case plaintiffs filed a hill of complaint in the circuit court for Wayne county in chancery to set aside a certain quitclaim deed and an assignment of a land contract executed by defendants Collins and wife to defendant Coleman. Coleman filed a cross bill asking that the plaintiffs be ordered to convey to him the property in question upon his payment to them of the principal amount due on the contract together with any sums paid by the plaintiffs for taxes and tax redemptions. The property in question is a vacant lot in Houghton Manor subdivision in Detroit.
At the conclusion of a hearing and the taking of testimony, the trial judge dictated an opinion, and entered a decree accordingly, that the legal title to the property in question was in the plaintiffs, Smith and wife, that the quitclaim deed and assignment of land contract from defendants Collins and wife to defendant Coleman conveyed nothing and should be discharged of record; that defendant Coleman pay plaintiffs $500 damages, costs and expenses suffered by plaintiffs from Coleman’s malicious slander of plaintiffs’ title; and that Coleman’s cross bill be dismissed. Defendant Coleman appeals, filing a brief in propria persona. Defendants Collins and wife disclaim any interest in the property and do not appeal.
No question is raised on the appeal regarding the allowance of $500 to the plaintiffs. The essential question which now controls decision is whether the land contract, on the assignment of which Coleman bases his claim of an interest in the property, had long been abandoned by the parties to it. If so, defendants Collins and wife, as grantors in the quitclaim deed on which Coleman also relies, had nothing to convey to him.
In 1926 the then-owners subdivided Houghton Manor subdivision and sold lots, including the one here involved, on land contracts. In 1926 this particular lot was thus sold on land contract to one Connie DuBois who assigned-his interest therein asvendee to 'Will E. and Berneiee Collins, the latter being the mother of defendant. Harold W. Collins and the person from whom Harold W. Collins later received his interest, if any, as her'heir-at-law. There-was proof that she had disclaimed any interest in the contract, and that when she died in 1952 her estate did not inventory any interest in said contract as an asset. Consequently, defendants Harold Collins and wife disclaimed any interest in the property in question.
Payments which had been made on the contr'act from 1926 to August 3, 1932, were .discontinued on the latter date. No payments have since been made during the 21 years intervening'between 1932, and 1953, at which time defendant Coleman began to be interested in the title. During that time some taxes had been paid on the property- and- in 1953 the owners-vendors executed a warranty. deed of the property in question to plaintiffs Smith~and wife. Smith was the owners’ “selling agent.” who had taken-care of the contracts .and handled .themwners’ real-estate matters.' At that time there was a prospective deal in the making.to-selbthe property for $2,000. The plaintiff Smith, for a share of the proceeds to be realized from the sale, paid up .the; back taxes, agreed to clear up- the title, and took from the owners .the deed referred to.
According to defendant Coleman’s testimony, he was a “title investigator,” in the business of purchasing properties because of some title defect. He-had examined the estate of one Minnie Houghton, and contacted plaintiff William Houghton in regard to his title to the lot in question. Houghton offered to sell his interest in the property for $800 or $900. Defendant Coleman then hunted up defendant Harold Collins who apparently-had some record interest in the property as an heir-at-law under an old land contract. Coleman paid Collins $50 for a quitclaim deed and an assignment of any interest ■which he or his deceased mother, Berneice Collins, had in the old land contract which had apparently been abandoned. But at that time, as well as in his testimony in the hearing in the case, defendant Harold Collins disclaimed having any interest in the property. Coleman proceeded to put the quitclaim deed and assignment of land contract on record. He then contacted plaintiff Smith, who had been the agent for plaintiffs-owners Houghton, and offered to take $750 for his “interest” in the property. The instant suit followed.
The trial court, hearing and seeing the witnesses, correctly analyzed the situation. The court said:
“I am of the opinion that the Collins abandoned this property at least in the year 1947, and under the evidence an abandonment might be claimed going-back as far as 1932 when the last payment was made, but there is some question as to who paid the taxes up to 1947. But in 1947 we have the testimony that her son [Harold] talked to Mrs. Collins, Sr., about the matter and then she talked to an attorney about the matter, and the attorney advised her that she might as well forget the whole matter, and from then on the record is clear that she took no further interest in the property. * * *
“I am of the opinion that Mr. Collins’ version of the affair is the correct one. He told Mr. Coleman they had no interest in the lot; that they did not claim any interest in the lot; that the contract had been abandoned; that his mother talked to an attorney in 1947 about the matter and was advised to forget it; that the only reason he gave the deed to Mr. Coleman was because he understood from Mr. Coleman that he wanted to clear the title, and that Mr. Coleman had an interest in the property.
“Mr. Coleman, I think, testified that he had an interest in the property and wanted to clear the title, and he asked Mr. Collins to give him a quitclaim deed and an assignment, so at the time Mr. Coleman obtained the assignment and the quitclaim deed he knew that the Collins’ had disclaimed any interest in the property and had in effect legally abandoned the same.
“Now, as to the question of Mr. Houghton’s acquiescence of the abandonment, * * * we have the files of the probate court as early as 1947 which show that. "We have an order of the probate court allowing him as executor of the estate to abandon this contract. We had the order here, which showed that the court allowed him to abandon this land contract with the Collins. So there is a public record showing that they had acquiesced in the abandonment, and therefore there isn’t any question that both sides agreed that the contract was abandoned, although I don’t think that was necessary.
“Therefore, I think that Mr. Coleman received nothing when he received the deed.”
We agree with the conclusion reached by the trial court, the right of a party to a contract for the purchase of real estate may be lost by abandonment. Stevens v. Wakeman, 213 Mich 559; Nelson v. Hacker, 278 Mich 383.
“Abandonment of a land contract by the purchaser is shown where he fails to make payments due, accompanied by other circumstances, or by conduct clearly showing intention to abandon the contract.” Dundas v. Foster (syllabus), 281 Mich 117.
We have considered other questions raised by appellant in his brief. The court did not err in receiving testimony. The partiality, prejudice and bias which appellant claims was shown by the trial judge on some occasions during the hearing, while indicative of the court’s lack of belief in the merits of Coleman’s claims, even if true, constitute no basis for reversal. This Court, on an appeal from a de cree entered in a chancery case, hears the entire matter de novo. Neither do we find, as claimed by the appellant, that he has been deprived of his property “without due process of law.” No constitutional question is involved in the case.
Decree affirmed. Costs to appellees.
Carr, C. J., and Butzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Champlin, J.
In January, 1881, respondent was duly nominated and appointed one of the trustees of what was then known as the Michigan Institution for Educating the Deaf and Dumb and the Blind, and now known as the Michigan Institution for Educating the Deaf and Dumb. The'respondent duly qualified by taking and subscribing the oath of office, and entered upon the duties of said office. Iiis term was for six years from the first Tuesday of February, 1881. On the 2d day of July, A. D. 1883, Hon. J. W. Begole, as Governor of the State of Michigan, filed in the Executive office of State a writing or certificate of removal from office, as follows, viz.:
“Executive Oeeice, Lansing, July'2nd, 1883.
Whereas, it appears satisfactorily to me that James O. Willsou, holding the office of trustee of the Michigan Institution for Educating the Deaf and Dumb, has been guilty of official misconduct and habitual neglect of duty, as such trustee, I therefore remove the said James C. Willson from his said office of trustee of the Michigan Institution for Educating the Deaf and Dumb.
[l. s.] Josiah W. Begole.
By the Governor,
D. H. McComas,
Dep. See’y of State.”
—which has ever since remained of record in the executive office, and a copy thereof was filed on said second day of July in the office of the Secretary of State, and has ever since remained there of record.
On the same second day of July said Governor gave notice to said Willson of his removal from said office by a notice in the words and figures following:
“ Executive Office, Lansing, July 2nd, 1883.
To James G. Willson, Esq. — Dear Sir : I have this day, for your official misconduct and habitual neglect of duty, removed you from the office of trustee of the Michigan Institution for the Deaf and Dumb ; the reasons for such removal I shall lay before the Legislature at its next session in detail.
Yours respectfully, Josiah W. Begole.”
The Governor, also, on the second day of July appointed the relator a trustee to fill the vacancy occasioned by the removal of Willson, who refused to surrender up the office to relator, but continues to hold, use and exercise the office of trustee; whereupon, on the relation of said Dullam, the Attorney-General filed an information in this Court in the nature of a quo warranto, alleging that James C. Willson had usurped, intruded into and unlawfully holds and exercises the office of trustee of the Michigan Institute for the Education of the Dumb and Blind since said second day of July, 1883. The respondent interposed a plea in which he set forth his appointment and commission, and that he had entered upon the duties of his office; that he had continued faithfully to perform its duties, and had not been guilty of the official misconduct or habitual neglect of duty as such trustee as asserted, intimated or claimed by the Governor in the writing or certificate signed by him; that the notice touching or referring to his removal, dated July 2, 1883, was the only notice he ever received from the Governor, and aside from that he never received any notice or intimation from the Governor that any complaint or claim had ever been made to or by the Governor that he liad been guilty of any official misconduct or habitual neglect of duty in his office; and that he is still entirely ignorant of what official misconduct and neglect of duty he has been guilty of or that the Governor claims he has been guilty of.
A further plea contained the same allegations as the first, except the denial of having been guilty of any official misconduct or habitual neglect of duty. The People demurred to the first plea, and also replied to that part denying the official misconduct and habitual neglect of duty, asserting affirmatively that said Willson was guilty of official misconduct and habitual neglect of duty as declared by the Governor, and they demurred to the second plea. The respondent demurred to the replication, and the People joined in the demurrer.
Looking at this case as a matter of pleading, I think the demurrer to the replication is well taken. It was incumbent on the relator to state in his replication the specific acts of official misconduct and habitual neglect of duty the respondent was guilty of. As it stands, the respondent is no more apprised from the replication of what he is to meet than he is from the language of the information itself. But as both parties have disregarded all objections to the form of the pleadings, and have argued the case on its merits, I shall proceed to consider the case on the questions presented in the briefs of counsel.
That issue is whether, under the Constitution and laws of Michigan, the Governor has power to remove a State officer by such action as was taken in this case, viz.: an act of removal evidenced by writing, under the hand and seal of the executive, filed in the executive office, with notice thereof to the officer removed, comprunicating to him the alleged grounds of removal, but without giving him notice of charges, complaint or claim of official misconduct or neglect of duty, or opportunity of - hearing, or defense.
The question is one of considerable delicacy, as it requires one of the co-ordinate branches of the government to pass its judgment on the acts of another, and the presumption is that the executive department has the same desire to keep within constitutional limits as either of the other two. From the nature of our government, acting under a written constitution prescribing the jurisdiction and powers of each branch, it devolves upon the judiciary to decide upon the acts of the other departments whenever it is claimed that such action is not in harmony with the fundamental law, and an appeal is made to it to decide ,the controversy. In this instance we are relieved from those embarrassments which' arise when the judicial department is applied to for the writ of mandamus to compel the executive to do some act in the executive or administrative department of government where courts seldom or never interfere, as is well illustrated by many authorities cited on the brief of relator’s counsel.
The Constitution (article xii, § 8,) provides that: “ The Governor shall have power and it shall be his duty, except at such time as the Legislature may be in session, to examine into the condition and administration of any public office, and the acts of any public officer, elective or appointed, to remove from office for gross neglect of duty, or for corrupt conduct in office, or any other misfeasance or malfeasance therein, either of the following State officers, to wit: the Attorney General, * * * or any other officer of the State, except legislative and judicial, elective or appointed, and to appoint a successor for the remainder of their respective unexpired term of office, and report the causes of such removal to the Legislature at its next session.” This provision was not contained in the Constitution of 1835. It was added to the present Constitution, by amendment, ,by the legislature of 1861, (Laws 1861, p. 588,) ratified by the people in 1862.
An existing statute — Comp. L. 1871, § 618 (How. Stat. § 651) — provides that the Secretary of State, Auditor General and all State and county officers, except the State Treasurer and judges, may, for official misconduct or habitual or willful neglect of duty, at any time during the recess of the Legislature, be removed, and the vacancy supplied during such recess by the Governor. This provision was in the Bevised Statutes of 1816, ch. 15.
The information alleges that the removal was made in pursuance of the statute; and from the fact that the executive order removing the respondent follows the language of the statute instead of the Constitution, and fills the vacancy until the next session of the Legislature, instead of the unexpired term, I am convinced that the action was had under the statute. But if the power exists under the Constitution, it is immaterial that a misrecital is made as to its source, and would not invalidate the exercise of the power. I am satisfied that the statute furnishes no valid basis for the power •of removal, because repugnant to the Constitution of 1835, which vested no judicial power in the Governor. The statute, being void, was not validated by the amendment of 1862, and the question depends solely upon the constitutional amendment of 1862. That provision must be construed in ■connection with others in the instrument of which it forms a part. In that instrument we find grants of executive power, and grants of judicial power; and we find rights reserved to the citizen, and restraints upon the exercise of executive, legislative or judicial power, in depriving any person of life, liberty or property without due process of law. Article Y relates to the executive department; and while section •6 provides that the Governor “ shall take care that the laws be faithfully executed,” still the amendment under consideration was not added as a part of that article, but was added to article XII, which relates to “ impeachments and removals from office.” By this article the house of representatives has the sole power of impeachment; the senate, sitting as a court, constitutes tlie tribunal before whom the impeachment is to be tried, and their judgment extends no further than removal from office; and the court for the trial of impeachment cannot sit until the final adjournment of the Legislature. While the Legislature is in session the Govern- or’s power of removal, is wholly suspended. The only way ■a removal from office of State officers could be accomplished, before the adoption of the amendment of 1862, was by impeachment preferred by the house of representatives. The provisions for impeachment still remain a part of the •Constitution.
What was the object sought to be accomplished by the •amendment? It contains an important grant of power combining both executive and judicial functions. There must have been evils existing which, it was thought, made such amendment necessary, which, through some defect in the Constitution, could not be remedied. The journals of the two houses of the Legislature disclose the fact that when they met in 1861 it was made laid wn to them through the Govern- or’s message that the State Treasurer, who had occupied that position the preceding term, was a defaulter; and that his defalcation was known to the Governor long before the assembling of the Legislature. But he was powerless to remove the incumbent from office. lie could only be removed by impeachment, and that could not be done before his term of office expired without calling an extra session of the Legislature. It was apparent, also, that dereliction of duty of other State officers was as liable to occur at any time as had happened in the case of the State Treasurer, and that a removal during the recess of the Legislature might become necessary in order to protect the interests of the State, 'or to promote the public service; hence a joint resolution was introduced in the Legislature, and, after some amendments, was passed •and submitted to the people in its present form, and they adopted it as a part of the Constitution at the general election of 1862. It is to the credit of the State that a period of over twenty years has elapsed before it has been thought necessary by the executive to exercise the power conferred by that amendment.
It will be observed that the section of the Constitution under consideration only authorizes the Governor to remove for specified causes. He is not authorized to exercise the power at his pleasure or caprice. It is only when the causes named exist that the power conferred can be exercised. It follows as a necessary consequence that the fact must be determined before the removal can be made. It is also clear that the fact must be determined by some tribunal invested with judicial power, for a determination whether specified causes exist is the exercise of judicial functions. Judicial determination of facts must rest upon and be preceded by notice, proof and hearing. And the first question is, what is the proper tribunal in which such facts are to be ascertained % In my opinion this provision of the Constitution requires no legislation to make it effective. Head in the light of the history of the times, and the surrounding circumstances when it was adopted, the grant of power is to the Governor coupled with the duty enjoined to examine into the condition and administration of any public office, and to examine into the acts of any public officer, and to remove from office for gross neglect of duty, or for corrupt conduct in office,, any of the officers specified. The amendment for this purpose clothes him with judicial power. It is implied in the grant, and without it the grant would be nugatory and ineffectual to accomplish the purposes for which it was given.
This construction is the only one that can be given to the section which will remedy the evil from which relief was sought by its adoption. He acts in the place of a court of impeachment during the time the Legislature is not in session. An exigency may arise when it would require prompt action to protect the public service or the interests of the State. The delays incident to common-law prosecutions and convictions for malfeasance in office woxdd afford an inadequate, and, in some instances that might be suggested, no remedy. Besides, it should not be forgotten that the remedy by common-law prosecution existed, and could have been pursued before the amendment was adopted. The law, since 1846, had declared a vacancy in any office when the person holding the same was convicted of an infamous crime, or of any offense involving a violation of his oath of office (Rev. Stat. 1846, p. 81 ; 1 Comp. L. 1857, § 475), and the Governor was fully authorized to fill such vacancy. Sess. L. 1S51, p. 266; 1 Comp. L. 1857, § 490. To hold, therefore, after the amendment, the same prosecution and conviction must be had as before, to authorize the Governor to remove, would render the amendment not only a dead letter, but entirely unnecessary; for, as the law stood, conviction created a vacancy which the Governor might fill by appointment; and if a conviction must still be had by a prosecution in the common-law courts before the Governor can remove, we impute to ourselves the inconsistency of holding that the Governor must assume that there is an incumbent of an office, vacant under the statute, whom he can then proceed to remove under the Constitution.
That under the amendment the Governor was vested with the power of determining whether the specified causes exist, appears to me too plain for serious contradiction. I fully concur in the views expressed upon this point by the learned counsel for the respondent (Judge Christiancy), wherein he says: “ It was competent, by constitutional amendment, to authorize him to exercise such judicial power. And while this amendment gives the power of removal only for the causes which it specifies (which, though similar in character, are not identical with those specified in the statute,) and the question of the officer’s guilt is one judicial in its nature, yet the amendment imposes a duty and confers upon the Governor the power ‘ to examine into the condition and administration of the office and public acts of the officers’ to-which it applies, and to remove them from office for the canses there enumerated ,* thus, in effect, giving him the right to try the question whether the officer is guilty or not, and to remove him from his office.”
The counsel for the respondent, while granting this, insist that such removal cannot be made without charges, notice and an opportunity for defense, and this I consider the important question in the ease.
Unless it is the manifest intention of the section under consideration that the proceedings should be ex parte as well as summary, a removal without charges, notice and an opportunity for defense cannot be upheld. The exercise of such power, in such manner, would be too despotic for any attempt at vindication in a country which boasts of the utmost liberty compatible with the safety of the state, and is entirely opposed to the genius of our free institutions. I do not think the people, when they adopted this amendment, intended or supposed that they were placing such unlimited power in the hands of any man. If it exists it places it in the power of the Governor, at his mere will or caprice, to remove all the State officers, except legislative and judicial; and to fill their places with his own partisans, thus revolutionizing the whole administration of the State, and defeating the express will of the people who elected him. It is no argument to say it may never be done. It is sufficient to know that it could be done, and that the people, in adopting the amendment, never intended to grant the power by which .it might be done.
The history of judicial proceedings shows that it has been frequently the case that officers, invested with the power of removal for specified cause, have attempted its exercise in an ex parte and summary manner, not through any wrong motive, but from a misconception of the method 'in which such power should be exercised. In Ramshay's Case, 18 Ad. & El. (Nv S.) 190, it was said: “The chancellor has authority to remove a judge of a county court only on the implied condition prescribed by the principles of eternal justice, that he hears the party accused: he cannot legally act upon such an occasion without some evidence being adduced to support the charges; and he has no authority to remove for matters unconnected with inability or misbehavior; and where evidence has been given in support of them, we think we cannot inquire into the amount of evidence or the balance of evidence, the chancellor, acting within his jurisdiction, being the constituted judge upon this subject.” In Williams v. Bagot 3 B. & C. 786, Mr. Justice Bayley said: “It is contrary to common justice that a party should be concluded unheard.” The case of The Queen v. The Archbishop of Canterbury 1 El. & El. 545, arose under a statute which enacted that a curate, whose license shall have been revoked by the bishop, might ‘appeal to the archbishop of the province, who should confirm or annul such revocation as to him shall appear just and proper.’ An appeal was taken to the archbishop, who, without giving the appellant an opportunity to be heard, confirmed the revocation. Lord Campbell said: “No doubt the archbishop acted most conscientiously, and with a sincere desire to promote the interests of the church: but we all think that he has taken an erroneous view of the law. He was bound to hear the appellant, and he has not heard him. It is one of the'first principles of justice, that no man should be condemned without being heard.” Mr. Justice Wight-man said “that, ex debito justitite, every one has a right to be heard before he is condemned.”
An act of Parliament gave authority to the bishop to-j decide, upon affidavit or upon his own Imowledge, whether or not the duties of the parish had been inadequately performed, in consequence of the negligence of the incumbent, and whenever it should so appear to his satisfaction he could, by certain proceedings, appoint a curate in place of the incumbent. The bishop, proceeding upon his own knowledge, without notice .or an opportunity afforded to the incumbent, adjudged that the duties of the vicarage of the parish were inadequately performed by reason of the vicar’s negligence, and proceeded to appoint another person to the place. The incumbent refused to surrender to the new appointee. Lord Lyndhurst held that the language of the act imported inquiry, and a judgment as the result of that inquiry. He said: “ He is to form his judgment; it is to appear to him from affidavits laid before him: but, is it possible to be said that it is to appear to him, and that he is to form his judgment from affidavits laid before him on the one side, without hearing the other party against whom the charge of negligence is preferred, which is to affect him in his character and in his property ? That he is to come to that conclusion, without giving the other party an opportunity of meeting the affidavits by contrary affidavits, and without being heard in his own defense — without having' an opportunity even of being summoned for that purpose — as in the present instance; there being no summons, for the monition was proceeded in immediately, without any intimation whatever from the bishop of his intention to proceed, to the party against whom that requisition proceeds.” And he further held that when the bishop proceeded, “ on his own knowledge, the same course of proceeding is necessary; because a party has a right to be heard for the purpose of explaining his conduct; he has a right to call witnesses, for the purpose of removing the impression made on the mind of the bishop; he has a right to be heard in hig own defense.” Capel v. Child 2 Cr. & J. 558.
Under the constitution in force, in 1846, in the state of Kentucky, the secretary of state was appointed and commissioned by the governor to hold his office during good behavior, and to the end of the governor’s administration. The governor caused to be entered in the executive journal the following:
“ September 1st, 1846.
Whereas Benjamin Hardin, by his failure, willful neglect and refusal to reside at the Seat of Government, and perform the duties of Secretary, has abandoned said office, and said office, in the judgment of the Governor, has become vacant for the causes aforesaid, it is, therefore, declared by the Governor, and ordered to be entered on the executive journal, that the office of Secretary has become and is vacant. "Wherefore, to fill said vacancy, the Governor this day commissioned George B. Kinkead, Esq., to be Secretary till the end of the next General Assembly of Kentucky. And George B. Kinkead having qualified to his commission, entered upon the discharge of his duties.”
Here appears quite a similarity between the executive action of the governor of Kentucky and this action of the executive in this case in the method of proceeding. There was no notice given to Hardin previous to this action of the governor. Chief Justice Marshall, in delivering the opinion of the court said: “The secretary being removable for breach of good behavior only, the ascertainment of the breach must precede the removal. In other words, the officer must be convicted of misbehavior in office. And we shall not argue to prove that in a government of laws, a conviction whereby an individual may be deprived of valuable rights and interests, and may moreover t>e seriously affected in his good fame and standing, implies a charge and trial and judgment, with the opportunity of defence and proof.” Page v. Hardin 8 B. Mon. 672. As no judicial power was conferred upon the governor in such case, the court held that the conviction must be had before the. judicial tribunals of the state. I should reach the same conclusion in this case were it not that the amendment of 1862 confers judicial power upon the governor to act in the cases specified.
In Willard’s appeal 4 K. I: 601, it was held that a school committee of a town had power to remove their clerk, for just cause, after hearing, full opportunity having been given to him, upon charges presented, to defend himself against them. In Commonwealth v. Slifer, State Treasurer 25 Penn. St. 23, the case was this: The adjutant general holds his office for a specified term, “if he shall so long behave himself well and perforin the duties required by law.” The statute provided : “ Whenever, in the opinion of the governor, the adjutant general fails and neglects faithfully to perform the duties of his office, the governor shall remove him from office.” Before the relator’s term of office had expired the governor appointed and duly commissioned Thomas J. Power to be adjutant general, the respondent alleging as a reason for this action that the relator had not behaved himself well, and had not performed the duties required by law. No notice was given to relator of his removal, nor opportunity for defense. Chief Justice Lewis said: “No removal is shown or alleged, except that which is implied by the simple appointment of a successor. * * * We are unwilling to believe that the governor intended, without cause to remove an officer appointed for a term of years, before the term had expired. That he possessed the power of removal is conceded; but the power is to be exercised upon cause shown. It exists only where ‘ the officer fails and neglects faithfully to perform the duties of his office.’ It is true that the executive is made the judge; and that his ‘opinion’ or judgment is conclusive, so far as relates to the question of removal. But that judgment is not to be pronounced without notice, without any charge or specification, and without any opportunity given to the officer to make his defence. The reputation and the right of the incumbent to the office for the term specified in his commission are involved; and he has a right to know the accusation and to be heard in his defence.” In Meade v. Deputy Marshal 1 Brock. 324, Chief Justice Marshall said: “It is a. principle of natural justice, which courts are never at liberty to dispense with, unless under the mandate of positive law, that no person shall be condemned unheard, or without an opportunity of being heard.” Chase v. Hathaway 14 Mass. 222 was a case where a judge of probate proceeded and entered judgment upon an inquisition of lunacy without notice to the alleged lunatic. Chief Justice Parker said: “ There being’ no provision in the statute for notice to the party who is alleged to be incompetent, by reason of insanity, to manage his estate, it seems that the judge of probate did not think such notice essential to his proceedings. But we are of opinion that, notwithstanding the silence of the statute, no decree of a probate court, so materially affecting the rights of property and the person, can be valid, unless the party to be affected has had an opportunity to be heard in defence of his rights. * * * And whenever the legislature has provided that, on account of crime or misfortune, the public safety or convenience demands a suspension of these essential rights of the individual, and has provided a judicial process, by which the fact shall be ascertained, it is to be understood as required that the tribunal, to which is committed the duty of inquiring and determining, shall give opportunity to the subject to be heard in support of his innocence or his capacity.” See also Geddes v. Thomastown 46 Mich. 316; People v. Lord 9 Mich. 227; People v. Ingham County Treasurer 36 Mich. 416.
The line of authority is not by any means exhausted, but enough cases have been cited to show that the action of the Governor in this case, cannot be upheld as a legal and proper exercise of the power conferred upon him. There must be charges specifying the particulars in which the officer is subject to removal. It is not sufficient to follow the language of the Constitution. The officer is entitled to know the particular acts of neglect of duty, or corrupt conduct, or other act relied upon as constituting malfeasance or misfeasance in office, and he is entitled to a reasonable notice of the time and place when and where an opportunity will be given him for a heai'ing, and he has a right to produce proof upon such hearing. What length of time notice should be given we do not determine; it must depend, in a great measure upon the circumstances of each case.
I have examined carefully the authorities cited upon the brief of the learned counsel for relator in support of the position that no notice is required to be given, and that the action of the executive is final and conclusive. It is sufficient to say, without commenting specially upon .them, that the reasoning of those cases does not commend itself to my judgment. They appear to me to be opposed, not only to the decided weight of authority but also to the fundamental principles of justice. In what I have said upon the law of this case I have not cast the least imputation upon the motives of the executive. The same presumptions of good faith and honest desire to act within legal and constitutional limits are accorded to him as to either of the other co-ordinate branches of the government, and his motives are not the subject of criticism. I have no doubt that he acted under the impression that he was entirely within the line of his duty as well as of law, and that he believed that the removal of respondent was demanded by the best interests of the public service.
Be that as it may, the relator has not made out a case for the intervention of the Court, and judgment must be entered for respondent.
Sherwood, J., concurred. | [
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Campbell, J.
"Wineman sued defendants under the common counts for use and occupation of a hotel, and for the unpaid price of furniture. The defense, so far as the furniture is concerned, was that the suit was premature. The rent was due beyond any question.
On the 6th of January, 1881, plaintiff and defendants entered into a written preliminary arrangement, which, by its terms, was to end on January 20, 1881, at noon, for the lease of the hotel and the purchase of the furniture. This paper provided that the parties would enter into a five years’ lease, at $200 a month in advance for two years, and $225 a month in advance for three years. Certain preliminary outlays were to be made for repairs, cleaning, and other matters, and the tenants were to buy the hotel furniture for $1800, of which $900 was to be paid down, and the balance in six and twelve months, with interest.
The tenants were let into possession, and opened the house ghout the first of February. They paid plaintiff $900 on the furniture, and $200 for the February rent. They made no further payments. The proposed lease was never signed, although one was drawn up. On the 18th of May defendants left the house, and this suit was at once commenced by attachment.
Plaintiff, who was the only witness sworn as to value, fixed the value of the furniture at $2100, and the rental value at $250 a month. The court below confined his right of recovery to the prices named in the preliminary agree ment. This leaves, as the only material question, the inquiry whether the price of the furniture could be sued for so early.
The case is anomalous, and presents some apparent difficulties. But we think the decision was proper. ' The written agreement was, by its terms, to expire on January 20. The payment for half the price of the furniture was made subsequently, and cannot be said to have been made to fulfill its conditions. The whole arrangement for selling the furniture and leasing the hotel was intended to go together, and to be fixed definitely by a future lease. No security was provided for in this agreement beyond the advance payment of the rent, and it is certainly possible that some security would be desired. But it is not probable that plaintiff would have consented to sell his hotel furniture on such terms as would allow the purchaser to dismantle the hotel and make it untenantable until newly furnished again. It must be assumed that the price and terms were fixed with reference to securing a permanent tenancy.
If this is so, then when the defendants not only failed to make a new lease, but also failed to pay rent during their occupancy, and then undertook to vacate the premises, it would be improper to allow them the benefit of a contract which they had repudiated in its most important particulars. We think they must be held at once liable for the value of the property which they had thus appropriated, and that they could not claim it was sold on credit when the arrangement on which that credit depended was no longer in force, and was kept out of efficacy by their own misconduct. They cannot claim the benefit and reject the obligation which was the consideration for granting it.
The judgment must be affirmed.
The other Justices concurred. | [
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Cooley, C. J.
Suit in equity for a partnership accounting. The parties are contractors and builders of mason work, and the bill alleges that they entered into partnership as such by oral agreement November 26, 1880, the partnership to continue indefinitely, and to be dissolvable by either party at pleasure. It further alleges that it was continued until February, 1882, when it was dissolved by mutual consent, except as to two unfinished contracts in the city of Ypsilanti. An accounting is prayed for in the usual form. The bill was filed April 21, 18S2. The defendant answered, admitting the partnership, but averring that it was dissolved as to all matters November 4, 1881. On January 30, 1883, a consent decree was entered, declaring the partnership dissolved, and referring it to a circuit court commissioner to take proofs as to the time the partnership continued, and the matters and business covered thereby, and to report the same to the court, with his opinion thereon. The commissioner executed this order, and reported the proofs together with his opinion that the partnership was dissolved on or about February 15, 1882, except as to existing contracts. The defendant excepted to this report and the circuit court sustained the exception, and decreed that the partnership continued in full force and operation until January 30, 1883. The complainant appealed.
It is contended by counsel for defendant that this decree was not final, and therefore not appealable. It was certainly not final in the sense that it disposed of the controversy between the parties; but it was final as settling the basis for accounting; and the basis fixed upon entitled the parties to extend the accounting over a period which neither party by his pleading had claimed to be within the life of the partnership. If this,was not admissible, an appeal was allowable within the previous decisions of this Court. Lewis v. Campau 14 Mich. 458; People v. Jones 33 Mich. 303; Maxfield v. Freeman 39 Mich. 64; Taylor v. Sweet 40 Mich. 736; Morey v. Grant 48 Mich. 326. Neither party could be compelled to submit to an overhauling of his business and accounts for a period not within the issue ; and he was entitled to appeal to this Court from any order which assumed to give the right.
We are also of opinion that the court erred in sustaining the exception. The parties were agreed that the partnership was dissolved previous to the commencement of the suit; and it was not open to either of them to claim the contrary. The only question in dispute related to the time of dissolution, and whether existing contracts were to be completed on joint account. A suggestion is made on behalf of defendant that when he filed his answer he was seriously ill and did not fully understand it; but this has no force. If there was any reason for making a change in his answer, the court on application, with proper showing, would have given him the liberty. Put he has seen fit to stand by it and give evidence in its support; and he cannot repudiate it now.
We have examined the evidence, and are of opinion that it justifies the commissioner’s conclusion. An order will be entered overruling the exception with costs of this Court to complainant, and remanding the case.
The other Justices concurred. | [
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Cooley, C. J.
This suit is brought to recover damages for a personal injury sustained by the plaintiff while being carried on the cars of defendant as a passenger.
The injury was received August 9, 1883. On that day, by arrangement with defendant, an organization at East Saginaw, known as the “Ladies’ Christian Temperance Union,” gave an excursion from East Saginaw to Port Huron and back. Tickets for the excursion were placed in the hands of a committee of ladies, and they sold them for one dollar and fifty cents each, and accounted to the defendant for one dollar each. On the morning of the day named plaintiff and his wife took the cars with the excursion party. The train was the regular passenger train of closed cars, with two open, excursion or observation cars attached. These last were constructed with seats running across the cars, and without any aisle from end to end. Along one side was a step or running board about nine inches in width, upon which passengers stepped in entering and leaving the car, and along which the conductor walked in taking up tickets. There were iron rails by each seat for one to hold by who was upon this step. The seat which the plaintiff and his wife took was upon the first of 'these open cars. The closed cars were before it.
After the plaintiff had taken his seat, he got off again at the request of the ladies to sell tickets for them. As the train was about to start, several persons came to take the cars who were without tickets, and the conductor told the plaintiff to let them get aboard the train and sell them tickets afterwards. They went into one of the closed cars, and plaintiff followed them and sold tickets to them. While he was doing this the train started. The plaintiff then left the car where they were, and from its rear platform passed to the front platform of the car on which he had left his wife, and then along the side step towards the rear of the car. The train was then moving with considerable speed. As the plaintiff passed from seat to seat, he inquired of the passengers if they had tickets. A brakeman was then passing along and closing blinds on the side of the car for the protection of passengers. These blinds, when closed, came up to the shoulders of the seated passengers. The brakeman passed the plaintiff by swinging around him when he was near thev middle of the car, and as he did so, said to him, “You want to look out a little for the switch.” Yery soon the plaintiff, as he was moving, heard the brakeman halloo and motion with his hand towards the car. The plaintiff says; “I took him for my guide and saw the bins, and I knew there was no time to fool away, and I drew myself up to the car as he was doing, taking him for my guide, and then he threw one hand back, and I had got to get back and jump myself, and I made a lunge and grabbed the last ii’on, and drew my head and shoulders around the end, and tbe bin struck my thigb and smashed me through there some sixty feet.”
The bins referred to, and against which the plaintiff struck, were coal bins extending along the side of the track some sixty-five feet, and coming within eleven and a half inches of the side of a car standing on the track, and within two inches of the step upon which plaintiff stood. The height of the bins was five feet. Plaintiff’s leg was broken by the concussion. It was shown that the bins might have been seen from the approaching cars for a distance of twelve hundred feet. When plaintiff left the closed car on which he had been selling tickets, there were unoccupied seats in it which he might have taken had he been so disposed.
In the trial court it was urged on the part of the defense that the facts in proof made out no case for the plaintiff — first, because they showed no breach of any duty which the defendant owed to the plaintiff; and second, because the injury was brought upon the plaintiff by his own negligence. On the first point the trial judge ruled against the defense, and on the second, he submitted the facts to the jury, who found for the plaintiff.
We agree with the trial judge that it was negligence in the defendant to permit bins of the kind described to stand so near its track when it was making use of the open cars for the conveyance of passengers. It is true that passengers are expected to take and keep their seats in the car: it is not expected that they will stand upon the step or running board when the cars are in motion : this step or board is provided for the use of the servants of the company, and it will not be expected that passengers will make use of it for passing back and forth while the cars are moving, unless under very exceptional circumstances. But this means of passage takes the place of the aisle in the common passenger coach; and as it is always possible that there may be lawful and proper occasions for passing from car to car, it is not excusable in the defendant that it should permit structures to stand so near its track as to render the use of the running board dangerous to life or limb. The servants of the company must make frequent use of this passage-way between stations, and they have a right to reasonable security against injury in doing so. And while we think the passengers are not at liberty to pass from car to car at will, and that they should keep their seats when the train is in motion, yet in view of exceptional cases which may well arise, and in which the passenger would be likely to consider it proper to make use of the step or running board as this plaintiff did, we are entirely of the opinion of the circuit judge that the defendant owed a duty to its passengers to make such use by them, on occasions justifying it, reasonably safe.
Ve also agree that the facts did not make out a conclusive case of negligence against the plaintiff. The principal circumstance urged against him is that being in the closed car where there were empty seats when the train started, he did not take a seat there until the next station was reached. But the plaintifE had been permitted to enter that car for the purpose of selling tickets, after he had taken a seat elsewhere with his wife, and on an understanding that the cars were to be immediately started; and he would naturally suppose that he was at liberty, when lie had completed the business he went forward on, to return to his own seat. And, unless he knew it was dangerous to walk upon the running board, it would not have been likely to occur to him that there were objections to his doing so. This passage-way seemed to be safe. The step was wide - enough for the feet, and, with the irons to take hold of in moving along, there was no appearance of danger if care was used; and so long as the servants of the company were using the passage-way frequently, and were required to do so in the regular performance of their duties, it would have appeared like excessive timidity if the plaintiff had refrained from passing back to his seat because of anticipated danger.
But it is also said that the plaintiff would have seen the bins had he looked ahead for them, and that he was negligent in not doing so. But he was not negligent in failing to look ahead, unless he had reason to anticipate some such danger; and if we are correct in what we have already said, he had no such reason.' He had a right to assume that the defendant would perform its duty in guarding the safety of its passengers and servants; and it was only because it had failed to do so in this instance that the danger was encountered. The plaintiff had had no warning, except to look out a little for the -switch, until the bins were so near that it was impossible to avoid striking them; and why should he have looked for dangers whose existence he could not have anticipated? It is not claimed that the caution in respect to the switch was a caution against striking against it; more likely' it referred to a jolting motion in passing it.
The cases of Hickey v. Boston &c. R. R. Co. 14 Allen 429, and Camden &c. R. R. Co. v. Hoosey 99 Penn. St. 492 s. c. 44 Am. Rep. 120, upon which the defendant has greatly relied, we do not think are necessarily inconsistent with these views.
We decide this case upon its peculiar facts, and we are of opinion that the facts presented a case for the jury. We also think that the instructions given to the jury were unexceptionable.
The judgment will therefore be affirmed.
The other Justices concurred. | [
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Reid, J.
Defendant Donald W. Grant, an attorney, takes this appeal from a judgment of circuit court in a summary proceeding against defendant under Michigan Court Rule No 4 (1945). Plaintiffs on February 25, 1954, filed their petition for such proceeding; an order to show cause was issued on the same day. Defendant’s answer was filed March 5th following.
During June, 1952, plaintiffs sold 2 houses under construction by one DiPalma, a builder. Plaintiffs accepted deposits on these sales and were prevailed upon to turn the total of $3,600 over to DiPalma, who pleaded necessity but converted the money. The purchasers demanded refunds from plaintiffs. Plaintiffs’ broker’s license was revoked by the Michigan corporation and securities commission on complaint of Yapur, 1 of the purchasers. The plaintiffs were required by the commission to make a refund of $2,100 to Yapur, the other deposit being settled by DiPalma some time later. Plaintiffs throughout this period were represented by defendant as their attorney, and plaintiffs had referred DiPalma to defendant in an effort to assist DiPalma with his many legal problems. '
Plaintiffs on February 3, 1953, purchased a cashier’s check (exhibit No 5) payable to Yapur for the refund of $2,100, and placed the check in the hands of defendant Grant who in turn delivered it to Yapur on February 9, 1953. With the delivery of this check, defendant secured the release of Yapur as against DiPalma. The release recited that ,the money was being paid by plaintiffs. On behalf of plaintiffs, defendant obtained from DiPalma an assignment (exhibit No 7) of certain real estate, dated February 10, 1953, to secure repayment of $2,100 to plaintiffs. Defendant on October 22, 1953, took title by warranty deed (exhibit No 10) from the DiPalmas on the same property mentioned in the assignment of interest in real estate owned jointly by DiPalmas but the assignment was not signed by Mrs. DiPalma. This deed was not recorded until the property was sold to one Altese and wife on February 4, 1954, when defendant and his wife deeded to them. Defendant being the grantor, the net proceeds, after payment to various contractors, was delivered and paid to defendant and his wife, the amount being $2,085.50. Plaintiffs claim that defendant had not informed plaintiffs that he held title to the property nor did he inform plaintiffs when the property was sold and a mortgage obtained to facilitate the transaction. In any event, plalntifFa. discovered the sale a few days after it occurred and, by registered mail through their attorney, demanded the sum of $2,085.50 to reimburse the plaintiffs for money advanced. Defendant refused to pay the $2,085.50 on the ground that DiPalma was indebted to him for attorney services rendered and being rendered. Plaintiffs in the same demand requested various papers, files, et cetera, that defendant had but which belonged to plaintiff. Defendant ignored the demand and later plaintiffs began the instant proceeding.
On April 7, 1954, plaintiffs’ motion for judgment came on for hearing. A colloquy took place between court and counsel, defendant appearing before the court in person, at the conclusion of which the court announced that briefs would be filed and decision would then be made. The court, evidently considering that the defendant had made statements and admissions as to sufficient material facts on which to base a judgment, denied the request of defendant for a full hearing.
As to the procedure in cases of this sort, see 22 ALR 1497-1508 and cases there cited. As to jury trial, the instant case is governed by our Court Rule No 4 (1945) which rule is as follows:
“Attorneys and counselors are officers of the courts of this State and as such are subject to the summary jurisdiction of such courts. The circuit court of the county in which an attorney resides or has an office has jurisdiction, on verified written complaint of any client, either in person or by. attorney and after reasonable notice and hearing, to inake any order for the payment of money or for the performance of any act by the attorney which law and justice may require. All courts of record have a like jurisdiction as to all such complaints regarding matters arising in suits or proceedings in such courts.”
The proceeding before the circuit judge is summary and need not be referred to a jury to determine the facts.
Defendant claims that after February 10, 1953, the date of the execution of exhibit No 7, hereinafter set forth, he at no time represented plaintiffs, which is conceded by plaintiffs.
In their petition and claim filed herein, plaintiffs, among other things, allege in paragraph 7, subparagraph j, as follows:
“That on March 25,1953, the said attorney Donald W. Grant, did forward his invoice to the petitioners herein, for legal services rendered, in connection with the said matter between them, the petitioners and Anthony and Carmen Yapnr and which statement among other things, itemizes the services rendered to include ‘arrangement and preparation of security for repayment of money advanced by you, arrangement and preparation of withdrawal by complainants of complaint, procurement and preparation of assignment by Mr. and Mrs. DiPalma’ and which assignment by Bennie DiPalma and Lillian DiPalma, said attorney continues to hold and has refused and neglected to deliver to said petitioners as heretofore demanded.”
Defendant in his answer to such allegation of plaintiff says:
“Answering paragraph 7, subparagraph ;j,. respondent admits that he sent an invoice to petitioners for services rendered but denies that he is in possession of any assignment signed by the persons alleged therein.”
In his brief in this Court, defendant, among other things, states:
“Plaintiffs’ claim to the money in question is based upon exhibit No 7 which is an incomplete assignment [i.e., lacking Mrs. DiPalma’s signature]. As a result of the hearing before the Michigan corporation & securities commission in February, 1953, on the complaint of the Yapurs against plaintiffs, the latter were required to return the $2,100 deposit to the Yapurs. The return of this money was accomplished through defendant. Plaintiffs delivered a check in this amount to defendant payable to the Yapurs and defendant in turn delivered it to the Yapurs on February 9, 1953, and on the same date the Yapurs executed exhibit No 6 absolving DiPalma from further liability to them. On the following day exhibit No 7 was delivered to DiPalma for execution by he and his wife. This exhibit is an assignment prepared by defendant by which DiPalma and his wife were to assign to plaintiffs $2,100 of the proceeds of the Altese sale derived from Detroit & Northern Savings and Loan Association. This assignment was signed by DiPalma on February 10, 1953 and delivered to him and is, for all purposes, the same as exhibit No 3 previously prepared by plaintiffs. It was expected that DiPalma’s wife would also sign it but for reason best known to herself, and as claimed by defendant, also known to plaintiffs, she declined to do so. It should here be noted that this assignment (exhibit No 7) is, by its terms, expressly limited, as was exhibit No 3, to any disbursement made by Detroit & Northern Savings and Loan Association.
“It is the claim of defendant that after February 10, 1953 (the date of the execution of exhibit No 7) he, at no time thereafter represented plaintiffs, which fact is not seriously disputed by plaintiffs. Some time after February 10, 1953 but prior to October 22, 1953, Detroit & Northern Savings and Loan Association declined to proceed with the financing of the sale and it became necessary for the purchasers (Altese) to obtain assistance elsewhere which they ultimately did from a wholly separate lending institution known as Standard Federal Savings and Loan Association. On October 22, 1953 and after Detroit & Northern Savings and Loan Association had refused to proceed further, the property being sold to the Alteses was deeded to defendant, among other reasons, as security for moneys owed to him, and thereafter, and on or about February 7, 1954 the sale was finally consummated with the Alteses through Standard Federal Savings and Loan Association. Defendant insists he represented DiPalmas as their attorney at that closing and the' money was disbursed to him and his wife, they having executed the deed to the Alteses for Mr. and Mrs. DiPalma. The fact that defendant was acting for DiPalma on February 7, 1954 rather than plaintiffs when the sale to the Alteses was consummated was pointed out to the trial court in the colloquy and this fact was not disputed by plaintiffs, but, on the contrary, is conceded by plaintiffs. It was further pointed out to the court in the colloquy that, in view of the fact that defendant was not acting for plaintiffs as their attorney when he received the money here involved but rather was acting for the DjPalmas, the plaintiffs could not invoke the summary proceedings provided by Rule No 4.
“As pointed out in the ‘preliminary statement,’ supra, no witnesses were sworn and no opportunity for cross-examination afforded although demanded by defendant before judgment. Therefore, if any dispute is presented in this appeal as to the above facts, it may fairly be said to be attributable directly to that fact. After judgment and on June 24, 1954, on motion of plaintiffs, costs were taxed against defendant in the amount of $66.52. Notice of hearing of the motion was given defendant on June 21, 1954, less than the full "4 days provided by Rule No 10, § 2, Michigan Court Rules (1945).”
In regard to exhibit No 7, plaintiffs argue as follows in their brief:
“The basic document, the assignment (exhibit No 7), pleaded for in * * * [the petition] and demanded by registered mail to defendant on February 16, 1954, was not produced until April 7, 1954, on the hearing of the order to show cause. When produced it indicated the correct date of February 10, 1953, but bore the sole signature of Bennie DiPalma and was unsigned by Lillian DiPálma, his wife.
“The absence of the signature of Lillian DiPalma, together with the delay in producing this document which plaintiff [s] had never seen, but was advised in defendant’s invoice (exhibit No 9) existed, coupled with the fact that defendant was counsel for DiPalma during this period, raised the possibility that it was of recent origin which was commented upon by plaintiff [s] on page 31 of the record.
“The absence of Lillian DiPalma’s signature contradicts the statement for services rendered by the defendant to the plaintiff [s] on March 25, 1953 (exhibit No 7) wherein the assignment is described as being procured from ‘Mr. and Mrs. DiPalma.’
“The absence of the signature of Lillian DiPalma on the assignment is further inconsistent as Lillian DiPalma signed readily enough, the following documents, transmitted, among others, to this Court by order of the trial court as follows:
“(a). Offer to purchase — exhibit No 1.
“(b). Escrow agreement — exhibit No 4.
“(c). "Warranty deed — exhibit No 10.”
Said exhibit No 7, as printed in the record, is as follows:
“Assignment
“For a valuable consideration, the receipt of which is hereby acknowledged, the undersigned Bennie DiPalma and Lillian DiPalma, his wife, hereby assign and set over unto Charles J. Merrill and Paul E. Threm, copartners doing business under the name and style of Merrill-Threm Company, all their right, title and interest in and to the proceeds to be derived from the sale of premises more commonly known as 19159 Alstead street in the city of Detroit, Michigan, and which sale is to be financed by Detroit & Northern Savings and Loan Association by way of mortgage.
“This assignment is expressly limited to a disbursement, if any, to be made by Detroit & Northern Savings and Loan Association and is further limited in the amount of $2,100. Any sums remaining to be disbursed by Detroit & Northern Savings and Loan Association over and above the said $2,100 shall remain the property of the assignors.
“In witness whereof we have hereunto set our hands this 10th day of February, 1953.
“(s) Bennie DiPalma
“Bennie DiPalma
“Lillian DiPalma”
We assume that the name, Lillian DiPalma, had been typewritten but was not signed by her.
During the summary trial, and in the colloquy between court and counsel, the following occurred:
“Mr. Grant: The property on Alstead, if the court please, was entireties property owned by Mr. and Mrs. DiPalma, husband and wife. One document that has not been mentioned here that is of prime significance. After payment of the money by Merrill-Threm Company to DiPalma — that is the money the broker received from the customers and turned over to the builder, the petitioners here of their own volition without any intercession on my part at all prepared an assignment and had Mr. DiPalma alone execute it. This particular piece of property on Alstead was to be sold to people by the name of Altese. That sale was being financed by Detroit & Northern Savings and Loan Association. It was expected the deal was to be closed at their office. In contemplation of that Merrill-Threm Company, as I said, on their own accord, prepared an assignment of $2,100 of the moneys to be disbursed by Detroit & Northern Savings and Loan Association. The assignment was in the form of a letter directing Detroit & Northern Savings to pay $2,100 of the money to the Yapurs. The deal at Detroit & Northern Savings was never consummated. Now again I say, it was signed by DiPalma alone and this was entire-ties property.
“The Court: Are you speaking about the assignment they claim you drew ?
“Mr. Grant: I didn’t draw that at all, that is the ■one I am mentioning.
“The Court: Is that the same one he is talking about?
“Mr. Grant: He didn’t even mention this. I will get to that in a moment.
“The Court: You were speaking about another assignment.
“Mr. Grant: That is right — the first assignment.
“The Court: What is the date of that?
“Mr. Grant: October, 1952. It is signed by Benny DiPalma, one of the tenants by the entireties and directs Detroit & Northern Savings and Loan Association to withhold $2,100 of the money to be disbursed by that association and pay it to the Yapurs. That deal was never closed. Subsequent to that, petitioners became embroiled in this difficulty before the corporation [and] securities commission. At that hearing I represented petitioners. It was still expected that this deal with the Alteses would be closed at Detroit & Northern Savings and Loan Association and in contemplation of that the assignment was prepared. That is the one I prepared. Similarly that assignment is signed only by DiPalma and not by the wife. It was expected she would sign it but for reasons best known to herself she didn’t.
“Now, throughout all the time counsel has referred to and prior to that I represented Mr. DiPalma.
“The Court: When did your representation of
Merrill-Threm discontinue and DiPalma start?
“Mr. Grant: When I ceased representing MerrillThrem — I can’t answer that.
“The Court: You didn’t represent both, I hope.
“Mr. Grant: I represented both of them.
“The Court: In this whole deal?
“Mr. Grant: No. I represented them on different matters but I didn’t represent both on this thing. In fact, the situation is quite the contrary. That is evidenced by the fact that the first assignment was prepared not by me but by Mr. Threm himself. He contacted me about it and told me he had prepared an assignment. I said as far as I was concerned the assignment signed by the husband alone was no good. I said if you want these people to execute an assignment, why didn’t you call me rather than do it yourself. So I wasn’t in 2 directions at the same time. Mr. DiPalma, through this transaction and for some time prior, was indebted to me in a substantial sum and still is for services rendered in connection with his difficulties. I told him I wanted some security for payment of my fees. As a result, the deed referred to was executed to me. That is the purpose of it.
“Now, the property was sold. Contrary to what he says it was executed for a consideration, it was given as security. The property was sold to the Alteses. The purchase was financed not by Detroit & Northern Savings and Loan Association but by Standard Federal Savings and Loan so that within the terms of the various assignments on which they count, this sale was not within the purview of that assignment. It was not covered by it. The money was disbursed and as a result of an accounting between my client and I, the money was paid to me. I had notice of their claim long before they ever got involved in this matter before the commission. Out of the proceeds I received $2,150. I had notice of their claim and they had notice of what I proposed to do about it because Mr. Threm and I had several arguments about it. I told him long ago that as far as I was concerned I was looking to DiPalma’s property for payment to me. That accounts in part for the preparation of the assignment by him. * * *
“The Court (to Mr. LaFata [attorney for plaintiffs] ): He says he didn’t do any work for MerrillThrem Company after February, 1953, except in the Supreme Court.
“Mr. Grant: That had nothing to do with this case at all. As far as Merrill-Threm Company is concerned and this transaction here, the only relationship I had with the company was to obtain their license back for them from the corporation [and] securities commission and in connection with that it became necessary for me to turn over moneys to the complainant in that case that I received from the company for that purpose and if possible to obtain some kind of security for them, hence that assignment. Now the assignment was never executed. After that I had nothing whatsoever to do with it.
“The Court: The assignment was executed by Mr. DiPalma.
“Mr. Grant: I understand that.
“The Court: You said it wasn’t executed.
“Mr. Grant: I am speaking about Mrs. DiPalma. After that date I had nothing to do with this transaction. I did not represent Merrill-Threm Company in any matter. I represented DiPalma in connection with this real-estate transaction and the closing at Standard Federal Savings and Loan Association. I represented him, I didn’t represent Merrill-Threm Company at all. When I ceased being counsel for them I don’t know. Mr. LaFata can tell you better than I because he succeeded me. The important thing is that in the closing of this transaction I was not representing them.
“To invoke summary proceedings it must be shown that the money was received while the attorney is representing the complainant. There is a Michigan case on it. There is no showing whatsoever that I represented Merrill-Threm Company. This is almost a year afterwards in March, 1953. That was the last I had anything to do with MerrillThrem Company. This property deal wasn’t closed until February of this year.
“The Court: You knew, Mr. Grant, at the time you took this deed as security that you had drawn an ■assignment for the benefit of your former client to secure money due him from DiPalma. Then you take from your client that security in the form of a deed and collect whatever moneys you can and wipe ■out his protection with reference to that claim. If he had filed this against the title to the property you would not have been able to deliver good title, would you?
“Mr. Grant: Yes.
“The Court: You have a duty to your clients. You can’t for example, draw instruments to protect them and then go out and deal with the assignor and wipe ■out that security. Here is what I am going to do. If you have any authorities you would like to file with the court I will be glad to read them before I make any decision.
“Mr. Grant: I would like to point out these questions to the court. There is this question about whether or not the money was received while I was acting as counsel for these people, that is the first thing. The second thing, your honor posed the question whether or not these assignments had been recorded, would they have clouded the title and prevented me from conveying marketable title. The answer is they would not and I will tell you why. The assignment purports to cover proceeds as distinguished from an estate or interest in the property itself. In addition, the property is entireties property and it is elementary that neither husband nor wife by their separate action can affect that unity of title.
“The Court: I do not think you can hide behind that as an attorney. That is my position.”
The trial court in his opinion found as follows:
“In this ease a petition is brought by the MerrillThrem Company against Donald Grant, an attorney at law, under Court Rule No 4. The facts reveal that Donald Grant was an attorney representing the Merrill-Threm Company for some few years prior to the controversy herein involved; that Benny DiPalma, a builder, had 2 homes on McKinney avenue for sale and they were partly completed. He solicited the services of the Merrill-Threm Company, real-estate brokers, to aid in the sale of the property. They obtained a purchaser for both properties and a payment of $2,100 was made, which was turned over to Mr. DiPalma. However, Mr. DiPalma ran into difficulties and was never able to make delivery of the completed home. The purchasers became impatient, finally filed a complaint before the Michigan [corporation and] securities commission, a hearing was had, Merrill-Threm being represented at that hearing bv Donald Grant, and were ordered to forthwith return the $2,100. A check was made out by the Merrill-Threm Company and delivered to Donald Grant, who in turn delivered the same check to the prospective purchasers, the Tapurs.
“On the following day, Merrill-Threm, through Donald Grant, took an assignment of property from Benny DiPalma with the purpose of protecting their $2,100, Mr. Grant acting in their behalf through an •assignment covering the Alstead property, which was owned by Benny DiPalma and his wife. This ■assignment provided that when a sale was made and a mortgage placed upon the property, $2,100 of the mortgage money would be paid to Merrill-Threm in payment of their claim.
“The facts further reveal that some time in the late summer or early fall of 1952 Mr. Benny DiPalma, who was in a great deal of legal difficulty, was referred to Mr. Donald Grant for his help in working out his problems.
“It is the position of Mr. Grant that in October of 1953 Mr. Benny DiPalma was indebted to him for services in the amount of approximately $2,100. He then at that time took a deed from Mr. Benny DiPalma covering the Alstead property. It is admitted that this deed was solely for the purpose of security.
“This property in February of 1954 was sold to the Alteses and good title delivered to them, and at the time of this sale Mr. Donald Grant was paid his legal fees in the amount of $2,100 from the proceeds of that mortgage. The Merrill-Threm Company received nothing from the proceeds of the mortgage.
“The question here involved is: Can an attorney who represents a client, such as Merrill-Threm Company, in its relations with Mr. DiPalma, who was •at that time unable to pay them, as shown by the above facts, to secure the repayment of that $2,100 through an assignment covering the property in •question, which 'later became security to Mr. Donald Grant for services rendered to Mrs. Benny DiPalma, and by delivery of that deed to Mr. Grant, wipe out what protection his prior client had upon this par tieular piece of property? It is the position of the attorney that because this assignment to the MerrillThrem Company was not executed by Benny DiP alma’s wife and that the mortgagee therein named was different than the mortgagee who executed the mortgage on the property at the time of the sale in February of 1954; that because of these 2 facts and that he no longer represented the Merrill-Threm Company after the transaction of February, 1954, except in the prosecution of a case which was pending at that time in the Michigan Supreme Court, that this conduct was proper and that Merrill-Threm have no claim upon the moneys that he received as a result of the sale of the property.
“With this the court does not agree. The fact that Benny DiPalma’s wife did not execute the original assignment of 2-9-53 is not a good defense to an attorney and the court does not believe because of the relationship of attorney and client that he can hide behind that defense, and the court further believes that the mortgagee named in the assignment of 2-9-53 was not the same as the one who executed the mortgage at the time of the sale of the property in February, 1954, makes any difference, because of the relationship of attorney and client, and that Mr. Donald Grant, the attorney, had notice of his prior client’s claim upon this particular property. These defenses will avail him little and the court is of the opinion that a constructive trust exists between Donald Grant and the petitioners herein, and that Donald Grant should forthwith pay •over the $2,100 that he received in February of 1954.”
Defendant had in his possession exhibit No 7 together with other of plaintiffs’ papers and did not deliver the same to plaintiffs until the instant summary proceeding. He retained such possession even after he claims his relations with plaintiffs ceased, and while acting for his own interest and contrary to plaintiffs’ interest, which, interest he had, as plaintiffs’ attorney, ostensibly sought to protect by preparing exhibit No 7 hereinbefore set forth.
On careful consideration of the statements of defendant, together with admitted exhibits, we consider that defendant made use of his knowledge of plaintiffs’ affairs obtained by defendant while acting" as attorney for plaintiffs, and evidently knew that plaintiffs were intended by both DiPalmas to be secured by exhibit No 7. Using such knowledge in such a manner, defendant thereby defeated the interests of his former clients to his own profit.
The finding of the trial court was substantially correct. For the reasons recited by the trial court,, the defendant is indebted to plaintiffs in the sum, however, of $2,085.50 (which is $14.50 less than the amount found by the court) with interest thereon from the filing of the petition herein by the plaintiffs, February 25, 1954, to date. With the amendment thus made, the judgment appealed from is affirmed. The interest heretofore accrued is more than $14.50, the decrease in the judgment, hence, plaintiffs are still entitled to costs. The case is remanded to the trial court with instruction to enter’ judgment in accordance with this opinion.
Carr, C. J., and Sharpe, Dethmers, and Kelly, JJ., concurred with Reid, J.
Butzel, Smith, and Boyles, JJ., concurred in the result. | [
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Dethmers, J.
Plaintiff filed a bill for divorce. Defendant filed an answer but. no. cross bill. At the conclusion of proofs taken thereon the court announced that plaintiff might have a decree of divorce. Before decree entered plaintiff requested that her bill of complaint be dismissed, but the court replied that she was too late. Cited in support of her claimed right to dismiss at that juncture are Coon v. Coon, 163 Mich 644; and Eisenbach v. Eisenbach, 176 Mich 354 (Ann Cas 1917A, 1197). Since, those cases were decided, Michigan Court Rule No 38, § 1, has twice been amended. Under its present provisions and our construction thereof in Goodspeed v. Goodspeed, 300 Mich 371; Ratcliffe v. Ratcliffe, 308 Mich 488; and Hornbeck v. Hornbeck, 316 Mich 208, plaintiff could no longer discontinue after filing of defendant’s answer, except upon stipulation with defendant or on order of the court made upon special motion supported by affidavit setting forth sufficient grounds for dismissal. The rule not having been complied with, the trial court was correct.
Ought a decree of divorce to have been granted plaintiff? The sum of her uncorroborated testimony to support her charge of extreme and repeated cruelty consisted of the following:
“I stated in my bill of complaint that my husband has been guilty of acts of extreme and repeated cruelty. Well, his relatives criticized me in the presence of his friends and he never defended me, and, in May, 1952, while at a musical at our church, in which I partook in making background scenery for the church, and I took an interest in attending the musical and shortly after we left this program we were naturally being greeted by our other church members, and it seemed to — my husband scolded me when he saw me in the presence of all these people and wanted me to shorten my little visit with them and put up a very, very nervous theme in the presence of my mother and onr friends and it seemed as if he wanted me to work and help him anyway in his business. I did that willingly, but it seemed something bothered Mm. He wanted me to just work and just because they were working he thought I should work too, and I had — I was living in a nice neighborhood and I worked in the post office and I think I lowered myself just because he wanted me to work — he wanted me to work in the Franklin post office, and it seemed as if, during my brother’s wedding, which was a year ago — last year — I had come to California for a funeral previously and I had seen my father’s grave there, which I had promised my mother to do — it was a very gruelling trip — I rushed back witMn a week and a half to attend my brother’s wedding — it was all strenuous and attended the wedding ceremony, and, shortly after the ceremony, at the time of the reception my husband wanted me to talk to them, which we did and we discussed that he didn’t want to continue our marriage, he was very unhappy, the responsibility was too great for him and therefore he created a great disturbance and at a time like that. I didn’t know what to think or what to do.”
In Brewer v. Brewer, 295 Mich 370, 373, this Court quoted with approval from Cooper v. Cooper, 17 Mich 205, 210 (97 Am Dec 182) :
“The law does not permit courts to sever the marriage bond, and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable.”
The quoted testimony in the instant ease did not make out a case of extreme and repeated cruelty en titling plaintiff to divorce. See, also, Root v. Root, 164 Mich 638 (32 LRA NS 837); LeBlanc v. LeBlanc, 228 Mich 74; Kloet v. Kloet, 244 Mich 675; Smith v. Smith, 272 Mich 348; Whitman v. Whitman, 286 Mich 458. Defendant says that this question may he raised on appeal by the party against whom the divorce was granted, but not, as here, by the party who sought and obtained a divorce. Such view disregards the fact that the State is a party to every divorce proceeding. As this Court said in Ritzer v. Ritzer, 243 Mich 406, 410:
“While marriage is in a very important sense a contract, it is also a relation governed by the rules of public policy which apply to no mere private agreements. Leavitt v. Leavitt, 13 Mich 452. Ordinary ¡private contracts may be dissolved by consent of the parties. Marriage may be dissolved only with the consent of the State (which is interested in the care of the parties and of their children), or by the death of one or both of the parties. The consent of the State may be directly given by special legislative enactment, unless prohibited by constitutional provision as in Michigan, or by general laws specifying the conditions under which divorce may be granted, leaving the ascertainment of the existence of those conditions to the judicial department. The State being a party to every divorce proceeding* (Robertson v. Robertson, 178 Mo App 478 [163 SW 266]; Yeager v. Yeager, 43 Ind App 313 [87 NE 144]; McIntyre v. McIntyre, 9 Misc 252 [30 NYS 200]), ‘a divorce cannot be had except in that court upon which the State has conferred jurisdiction and then only for those causes and with those formalities which the State has by statute prescribed.’ 19. CJ, p 19.” :
Divorce may only be had when the statutory; grounds have been established. We hear the case de| novo and, upon finding the proofs insufficient to| -establish such grounds, it is incumbent upon this Court, in furtherance of public policy and protection ■of the interests of the State, regardless of the wishes of the parties or of who raises the question, to deny a decree of divorce.
Decree below reversed and set aside. A decree may enter here dismissing the bill of complaint. Under the noted circumstances of this appeal, no costs.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Kelly, JJ., concurred. | [
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Carr, C. J.
Plaintiff herein entered the employ of the defendant corporation in February, 1952, as a steel salesman. No written contract was drawn but the parties agreed orally that he should receive a monthly drawing account and that if the office of salary stabilization of the Federal government, referred to in the record as the wage stabilization board, approved the arrangement he would receive a 2-1/2% commission on sales. Defendant, under date of March 29,1952, made application for such permission and the same was granted on November 18th, following, effective as of the date of the application.
In accordance with the agreement between the parties and the approval of the office of salary stabilization, plaintiff was paid 2-1/2% commission on sales of steel made by him for defendant from March 29 to December 31, 1952. The parties are in accord that the arrangement was subject to termination by either on 30 days’ notice. It was not, in other words, a contract for a definite period of time. In the latter part of 1952 defendant’s representatives had conversations with plaintiff for the purpose of reaching, an agreement, if possible, for a change in compensation. Whether such agreement was made, and whether defendant terminated the arrangement then in effect, are matters in dispute in the present case.
Claiming that the contract made in February, 1952, was still in force and effect, plaintiff continued to work for defendant during the first 4 months of
1953. He was paid $666 per month, which was his drawing account during the latter part of the prior year. Defendant did not make payment of commissions that plaintiff claimed he had earned, and in consequence the latter terminated his employment at the end of the 4-months’ period above mentioned. The present case resulted, plaintiff insisting that he was entitled to receive the commissions. On the trial before a jury in circuit court the parties presented their respective claims, each supported by testimony. A verdict was returned for plaintiff, allowing him his commissions on sales of steel made by him for defendant in 1953. It does not appear that there was any dispute as to the amount of the recovery if plaintiff was entitled to verdict and judgment.
A motion for a new trial was submitted by defendant, a number of reasons being advanced in support thereof. It was asserted that the verdict of the jury was against the great weight of the evidence, that the proofs in the case established that the arrangement between the parties, in force from February, 1952, to the end of that year, had been terminated, that a new agreement had been made by the parties, at least tentatively, and that defendant was not obligated to pay a commission on the sales made by plaintiff in its behalf during the period in question. The motion was denied, and defendant has appealed.
On the trial in circuit court it was the claim of defendant, supported by testimony, that its representatives in their discussions with plaintiff had refused on behalf of the corporation to continue the agreement then existing as to the method of compensating plaintiff for his services. It was insisted that an offer had been made, in which plain tiff had acquiesced, that he would receive a monthly-salary of $666 with a possibility of a bonus. Apparently it was the position of defendant that whether such bonus should be granted, and the amount thereof, rested entirely in its discretion.
Plaintiff in his testimony disputed defendant’s claims as to the nature of the conversations and the statements made by the parties thereto. In substance, he testified that he refused to accept any arrangement that did not involve the payment to him of a commission of 2-1/2% on sales. It was his claim also, as it is in this Court on appeal, that defendant at no time advised him that the contract made in February, 1952, would be terminated as of the end of that year, and he further insisted that on his refusal to accede to defendant’s suggestions as to changes in the arrangement he was told by the representatives of the corporation that a plan would be worked out that would be agreeable to him. He claimed that this was not done, however, and that he continued his employment until the last of April, 1953, in reliance on the contract under which he had worked previously.
From the record before us it is apparent that there was a material dispute between the parties as to precisely what was said during the conferences held in November, and perhaps in December, of 1952. If plaintiff’s version was correct, the original agreement between the parties was not altered, nor was it terminated.' The mere expression of a desire by defendant’s representatives for a different method of compensation did not accomplish such result. Concededly, defendant had the right to terminate the contract, but plaintiff testified, in substance, that such right was not exercised, and further claimed, as above indicated, that no new agreement or modification of the original arrangement was effected. It was, and. is, plaintiff’s position that he had a right to assume under the facts claimed by him that he was entitled to continue in accordance with the agreement of the preceding February.
The testimony given by defendant’s witnesses was in conflict with that of plaintiff. As before indicated, they insisted that plaintiff was advised by them, in substance, that the original contract was ended, and that a new or modified arrangement was made! Questions of fact for the determination of the jury were presented. From the verdict it is apparent that the jurors accepted plaintiff’s version as to what had been said by and between the parties, finding in accordance therewith that the contract as first made had not been abrogated by action of the defendant or by the making of a new agreement.
Under the proofs submitted to the jury it cannot be said that the verdict was against the great weight of the evidence. As triers of the facts, the jury had the right to accept the testimony of the plaintiff if it believed that his version as to what had transpired between the parties was correct. The verdict not being against the great weight of the evidence, the trial court and this Court are bound thereby in the absence of reversible error on the trial. Rich v. Daily Creamery Co., 303 Mich 344, 347.
Following the giving by the trial judge of his charge to the jury, counsel then representing defendant expressed his approval thereof. Subsequently there was a substitution of attorneys, and counsel representing defendant on this appeal assert that isolated statements made in the course of the charge were erroneous and prejudicial to defendant. From our examination of the record we are impressed that the factual issues were fairly and clearly submitted to the jury, that defendant’s rights were adequately protected, and that the statements of the judge to which defendant now objects were proper. The jury could not, by any reasonable possibility, have been misled thereby.
It is also urged that the trial court erred in not giving certain requests submitted by defendant’s counsel. On comparison of such requests with the charge as given, we find that their substance was substantially covered by the judge insofar as material and otherwise proper. Defendant’s objections to the charge as given and to the failure to give requests in the precise form submitted are without merit.
Counsel for defendant on appeal cite and rely on the decision of this Court in White v. United States Gypsum Co., 168 Mich 238. The facts there were materially different from those involved in the instant controversy. The plaintiff therein, who was a traveling salesman, sought to recover for his services under an alleged contract of employment. The situation was that previous contracts under which he had worked had been terminated under the provisions therein or by cancellation pursuant to mutual agreement. Thereafter negotiations were entered into between the parties having for their purpose the making of a new arrangement, in effect a rehiring. Pending negotiations plaintiff continued to work, apparently assuming that the prior contract, which had in fact been terminated, would govern his duties and compensation. This Court held that such claim was untenable. Under the facts there was no inference that the arrangement that had been expressly ended was to have any continuing force.
Our attention is also directed to Meyers v. Brown-Forman Distillery Co., 289 Ky 185 (158 SW2d 407). There the trial court found from the evidence that plaintiff’s contract, on which he based his right to recover, had been terminated before the rendition of the services for which he claimed compensation. On appeal it was held that there was sufficient evi dence to sustain the finding. Judgment in defendant’s favor was accordingly affirmed. In the case at bar, however, whether the arrangement between the parties in effect from February, 1952, to January 1,1953, had been superseded or otherwise terminated was in dispute, and the triers of the facts determined the issues raised in favor of the plaintiff. In consequence the decisions above referred to, and others of like import, cited by counsel for 'defendant, are not in point.
In 56 CJS, Master and Servant, § 118, p 558, it is said with reference to continuance under a contract after attempted modification:
“Where the parties to a contract terminable at the will of either party carry on unsuccessful negotiations for a modification of the original contract and the employment is later continued on the basis of the old agreement, the attempted modification will not have the effect of a termination of the contract limiting the employee’s recovery to that time.”'
In accord with the statement quoted is the decision of the supreme court of Pennsylvania in Loeliger v. Edson Bros., 269 Pa 339 (112 A 451). There the parties entered into an agreement under which plaintiff was employed as manager of one of defendant’s departments. His compensation was fixed on a weekly basis, in addition to which he was to receive a portion of the net profits of the department under his charge. The agreement by its terms was to continue as long as both parties were satisfied. Defendant terminated the arrangement shortly after the expiration of 2 years of operation thereunder, and plaintiff, claiming that he had not been compensated in full for his services, brought action for an accounting. Defendant claimed that 10 months after the making of the contract it was modified, with reference to computing plaintiff’s share of the profits, by a change in the system of bookkeeping. The trial conrt'found that plaintiff had not consented to such change. On appeal it was held that the record supported the finding, and that defendant’s efforts to force plaintiff to accede to the charging of additional items of expense against profits did not effect a termination of the contract of employment. The decree in plaintiff’s favor was accordingly affirmed. There being sufficient evidence to support the finding on which such decree was based, the appellate court considered that it was bound thereby. A like situation obtains in the case at bar.
The judgment of the trial court-is affirmed, with costs to plaintiff.
Butzel, Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred.
See 50 USCA app § 2101 and reference to termination in 50 USCA 1955 Cum Supp § 2166, suM (a).—Reporter. | [
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Dethmers, J.
In 1932 plaintiff, after a divorce, found herself owner of the vendee’s interest in a contract for the purchase of a store building and business, which was in financial straits and which she was not qualified by experience to operate. She also owned a house and lot and household furnishings. Most of what she possessed was heavily encumbered and she owed business and personal debts, back taxes and other obligations. Her business and affairs suffered from the effects of the depression era, as well as from other causes. Under an arrangement, the provisions of which are not made clear by the record, her son and his wife, the defendants herein, and their family came up from Ohio where they were residing, moved in with plaintiff, and the son, hereinafter called defendant, undertook operation of the store. In 1935 plaintiff assigned to defendant her interest in the contract on the store and conveyed to him all her interest in the store, merchandise and business and also title to her household furnishings and to the house and lot, reserving a life estate in the house. On the same date they entered into a written contract, by the terms of which plaintiff agreed to make the above transfers and to permit defendant and his family to live in the home. In consideration thereof defendant agreed to permit plaintiff to live in the home with him and his family, to furnish her with necessary food and medical care, to pay her $2 per week so long as she lived and to assume and pay the balance on the store contract, mortgages on real estate and furnishings, taxes and all the debts of the business and of plaintiff.
Plaintiff has made no complaint that defendant failed to provide her with a home prior to 1952, ap patently because she lived there occasionally when she desired, but most of the time preferred to live elsewhere because of opportunities to be gainfully employed as housekeeper or practical nurse in the homes of others and because of an intervening period of married life. In March of 1952, however, she returned to the home with the intention of remaining there permanently. Disagreements between the narties ensued, as a result of which she left on November 1,1952. This suit followed, plaintiff seeking cancellation of the mentioned conveyances and praying that she be decreed to be owner of the mentioned properties, that defendant account to her for merchandise in the store delivered by her to him in 1935, and for repayment of money loaned and advanced by her to defendant from time to time and, particularly, of the proceeds from the sale of real estate, other than that above mentioned, sold by defendant for plaintiff in 1947, for the return of her private papers and for payment of all amounts found to be due her from defendant, including the $2-weckly payments agreed by defendant ’ to be paid plaintiff under the contract.
Decree entered denying plaintiff the relief prayed for except that defendants were required to pay plaintiff the $2-weekly payments under the contract for a period running from January 1, 1940, to date of decree. Plaintiff appeals.
With respect to a $600 loan, which plaintiff testified she made to defendant 7 years before date of trial, to be repaid whenever she needed it, and $1,-622.53 proceeds derived from a sale by defendant of ‘plaintiff’s real estate and admittedly received by defendant in trust for her on June 25, 1947, the trial court took the position that plaintiff’s claims therefor ..could not be considered in this suit because they did' not relate to the 1935 contract, which the court considered to be the basis of this suit. These 2 items were pleaded in plaintiff’s bill of complaint and payment thereof prayed for. Defendants made no motion to strike the allegations or prayer for relief in that connection from the bill, bnt, on the contrary, denied them in their answer and offered a defense against them. The decree denied the relief prayed with respect thereto. Under the circumstances, we think the court erred in failing to pass on the merits of these 2 claims. Burgess v. Jackson Circuit Judge, 249 Mich 558, and cases therein cited. In response to plaintiff’s direct testimony that she had made the $600 loan to defendant, he testified that he would not say that it was not true, but tliat, as far as he knew, she was incorrect. On such state of the record, we believe the decree should provide for payment by defendant to plaintiff of the said sum of $600 with interest thereon at 5% per annum from and after November 9, 1946, that being 7 years prior to date of commencement of trial. As for the $1,622.53 item, inasmuch as it came into defendant’s hands under a trust relationship plaintiff was entitled to an accounting in equity. Cochrane v. Adams, 50 Mich 16; Darrah v. Boyce, 62 Mich 480. The sum admittedly having been received by defendant, the burden of proof rested on him to prove that he paid; it to plaintiff or that he was entitled to certain credits therefrom for expenses incurred by him in its procurement. Thatcher v. Hayes, 54 Mich 184. He testified that there were such expenses but he did not know their amount. He also testified that he had deposited the balance, after deduction of expenses, in plaintiff’s bank account. That testimony was refuted by the records of the bank. He failed to sustain the burden of proof resting on him in this connection. Under such unsatisfactory state of the record the decree should have required defendant, to pay plaintiff the $1,622.53 with interest at 5% per, annum sinee date of its receipt on June 25, 1947.
With respect to plaintiff’s prayer for cancellation •of the assignments and conveyances made by her to defendant she is not entitled to prevail. She contends that the burden of proof is on defendant to prove that they were obtained fairly and without taking advantage of plaintiff's age or mental condition and that defendant has fulfilled the terms of the agreement and is ready and willing to continue to do so, citing Williams v. Williams, 198 Mich 1. The case is not in point, but is distinguishable because here plaintiff, at age 57, while possessed of full physical and mental vigor, conveyed to defendant what the trial court viewed, not improperly, as distressed property, in exchange for which defendant not only agreed to care for plaintiff in certain respects but to operate the store business, pull it ■out of financial straits, and pay mortgages, taxes, and a number of other debts, all of which the record conclusively establishes that he did. The burden was on plaintiff, as in any other ordinary action on contract, to establish failure of consideration or lack of performance by defendant. We are not inclined to disagree with the trial court’s finding that plaintiff failed to establish that defendants made living in their home so disagreeable for plaintiff as to amount to a breach of defendants’ undertaking in that respect. Insofar as the $2-weekly payment under the contract is concerned, the plaintiff so far failed to sustain the burden of proof resting upon her in that regard that she is in no position to complain of the court’s finding that the payments due her in that connection date back only to January 1, 1940.
Defendants stated on trial that plaintiff is welcome to return to the home and live with them. It may be that the parties will forget past differences ■and decide to live together. If, on the basis of an .attempt thereat in the future, it is made clear that they cannot get along together and that plaintiff cannot live with defendants with a fair degree of contentment because of defendants’ unkind and improper treatment of her, then, as held in Williams v. Williams, supra, it will he within the power of a court of chancery to require defendant, at his own expense, to make other reasonable provisions for plaintiff in congenial surroundings; and the decree should leave that question open for supplemental proceedings if either party desires to be heard upon it in the future. The decree also should have provided for return to plaintiff of all her papers held by defendants.
Except for the matter of the $2-weekly payments plaintiff makes no complaint of defendant’s actions or failure to act before March of 1952 nor does she pray for relief in that respect. On that date she moved in with defendants and they provided her with a home and necessary food as provided in the agreement. Plaintiff’s complaint is directed to defendants’ conduct while she lived with them during the period from March until November 1, 1952, which she says was so harsh and unkind that, in effect, it drove her from the home. Had she proved the latter, it would have been proper for the court, under the holding in Williams v. Williams, supra, to require defendant to furnish or pay plaintiff the cost of living and eating elsewhere than in the home with defendants. Because plaintiff failed in her proofs in this respect, defendants ought not to he required to compensate her for the cost of occupying a different home since November 1,1952. A perusal of the contract discloses, however, that defendant’s obligation to furnish plaintiff with necessary food is in no way related to, or conditioned on, her living in the home with defendants. The provisions for those 2 benefits are to be found in separate paragraphs. It follows that defendant is obligated to pay plaintiff for the cost of her food since that date and to continue to furnish plaintiff with necessary food, or the cost thereof, for- the remainder of her life regardless of where she lives. Because no determination was made below with respect to such cost for food from November 1, 1952, to date of ■hearing, the cause should be remanded for that purpose.
Decree below is vacated and set aside, and the cause remanded for the purpose above indicated and for the entry of decree in accord herewith. Costs to plaintiff.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Kelly, JJ., concurred. | [
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Kelly, J.
Automobiles owned and operated by plaintiff Rector and defendant Clark collided at the intersection of Genesee and Deerfield streets, Lansing township, Ingham county, Michigan.
Plaintiff Motorists Mutual Insurance Company carried a $50 deductible collision insurance policy on Rector’s automobile, and paid $783.92 for cost of repairing same. Plaintiff Rector paid the $50, and this suit for damages was brought by both plaintiffs for $833.92. The jury returned a verdict awarding damages to both plaintiffs in amounts as set forth above. The court set the verdict aside because of the contributory negligence of plaintiff, and entered judgment of no cause for action.
At approximately 2:25 p.m. on October 5, 1953, in a partly rural district, plaintiff drove west on Genesee street, the defendant south on Deerfield, both gravel streets, and each approximately 22 feet wide.
A house is located on the northeast corner of the intersection partially obscuring the vision of drivers of vehicles approaching the intersection.
Plaintiff testified that at a distance of 75 or 80 feet from the center of the intersection he looked to his right and that “I couldn’t see for a long way down the street, and I figured at that speed I had plenty of time to get across the street. I took it for granted there was no car coming.”
He then looked to his left as he traveled west toward the intersection, and when 30 feet from the center of the intersection he again looked to his right, and he testified: “There was a car coming, buzzing right along there, and he was awfully close to the intersection.”
Plaintiff skidded 17 to 18 feet after applying his brakes and he struck defendant’s car broadside at about the driver’s door. The deputy sheriff testified that when he arrived he “found one car (defendant’s) * * * south of the intersection of Deerfield and Genesee headed in a northerly direction. The other ear (plaintiff’s) was headed southwest, on an angle, right at the intersection.”
Defendant admitted lie drove 40 to 45 miles per hour on the left of the center of the road, and that he did not try to stop as he crossed the intersection because he thought he was on a through street and that plaintiff was traveling on a stop street.
The fact that plaintiff’s view to his right was restricted and that he could not see “for a long way down the street” did not excuse plaintiff from exercising reasonable care to avoid an accident in crossing the intersection.
In Wells v. Oliver, 283 Mich 168, this Court said:
“If, as plaintiffs claim, their view to the right, from the point before entering the intersection, was restricted then Mr. Wells was guilty of negligence-in not taking another look to his right when the view was enlarged and before proceeding to the center of the intersection.”
The plaintiff was not exercising proper care in taking “it for granted there was no car coming” toward the intersection.
Plaintiff did not have the right-of-way. He endeavors to excuse his actions by stating in his brief: “Had defendant been on the right side of
the road, there might have been no collision.” The fact that the accident “might” not have happened if defendant had driven on the right side of the road, does not. excuse plaintiff from exercising proper care.
The record justifies the trial court’s finding that the plaintiff was familiar with the intersection and recognized it as a dangerous corner. The plaintiff was guilty of contributory negligence.
Affirmed, costs to appellee.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Dethmers, J.J., concurred. | [
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Smith, J.
We are here concerned with a default decree. The appellant wishes it vacated. The trial court’s order denied appellant’s motion to set aside the default and the decree based thereon.
The parties involved are brother and sister. They are the only surviving children of their deceased parents. The defendant is, or has been for upwards of 26 years, a member of a religious order. During the lifetime of the parents, all parties apparently enjoyed a closely-knit family relationship, After the death of the parents in the fall of 1953, the children’s difficulties began. The trouble concerned the property and money of the old people. The brother, defendant herein, assumed its custody and control, and upon petition to the probate court was appointed administrator of his parents’ respective estates. In his petitions for administration he listed himself as the sole heir-at-law of his parents, who had left no last will and testament. Further comment as to the conduct of the defendant would serve no justifiable purpose.
On September 17, 1954, plaintiff filed a bill of complaint against defendant, individually, and as administrator of their parents’ estates, alleging in substance that the defendant, by virtue of his pro-' fessional position, while enjoying a position of special trust and confidence, exerted undue influence upon the parents and induced them “to transfer to him substantially all of their property and assets upon the promise and representation of the defendant that he would give and pay to plaintiff more than 1/2 of the said parents’ property and assets upon their deaths.” She prayed that the court by its decree impress a trust upon the real and personal property in favor of plaintiff, to the extent of a 1/2 interest, and that defendant be decreed to specifically perform his promise to share the property equally. In addition (having alleged that defendant had rented the 2-family flat in which her parents had lived) she asked for an accounting of the rents, and the property received by the defendant from the parents, and that defendant be restrained during the pendency of the suit from disposing of, or encumbering, the real property.
Personal service of summons and bill of complaint was assertedly made by one Angeline Kelly on the defendant on October 18, 1954. An order of default was filed November 5, 1954. The matter came on for hearing pro confesso on November 18, 1954, at which time the court heard testimony and took proofs in support of the allegations of plaintiff’s bill of complaint, at the- conclusion of which the court directed plaintiff’s counsel to “bring it (the decree) in when you get it prepared.” On the following day the decree was entered awarding plaintiff the sum of $11,-857.14, plus rentals due her, to be determined by an accounting thereof, together with an undivided 1/2 interest in the real estate in question. It was further ordered that plaintiff have a lien upon the defendant’s undivided 1/2 interest in the real estate as security for the payment of the sum aforesaid, and a sale of defendant’s interest was • ordered if, after 30 days, payment had not been made. The matter of the accounting was referred to the circuit court commissioner to determine the amount owed to plaintiff for rentals collected on the real estate. A proof of service of the decree was filed on December 15, 1954, which disclosed that personal service of the decree could not be made and that service by registered mail had twice been attempted, but in each ease the envelope returned with the notation “refused.”
On December 1, 1954, plaintiff garnished defendant’s bank account at the Detroit Bank, defendant having been notified of the garnishment by the bank, came into court for the first time on January 5,1955. He filed at once a motion to set aside the default, and the decree based thereon, and proffered a sworn answer to plaintiff’s bill of complaint. The affidavit attached' to the motion to vacate the default set up a lack of service of process and other matters which will be referred to as necessary. This motion was later amended to add:
“1. That the default was irregularly entered, in that no proof of service upon all the defendants appears on record.
“2. Because the decree based upon said default was improperly entered, in that no military affidavit was filed to take a decree pro confesso, as required by "Wayne local rule, part 1, Rule 24 * * *. (CL 1948, § 32.53 [Stat Ann §4.644] 50 USCA App §§ 501-585).”
A hearing on defendant’s motion was had on January 19,1955, at which time testimony was heard and proofs taken. At the conclusion thereof the trial judge denied defendant’s motion to set aside the default. Plaintiff moved on January 25, 1955, to reopen the hearing on defendant’s motion to set aside the default and further testimony and proofs were taken on February 14, 1955, whereupon the court again denied defendant’s motion. On February 18, 1955, the court entered a written order denying defendant’s motion to set aside the default, and the decree based thereon. It also entered a written order that “an order nunc pro tunc be entered as of November 18, 1954, directing the entry of a decree in this court and cause.” (This decree had been filed on November 19, 1954, the day following the hearing pro confesso, pursuant to the court’s order from the bench to “bring it in when you get it prepared.”) In addition it provided that plaintiff might “file the attached nonmilitary affidavit nunc pro tunc as of November 18, 1954.” Defendant has taken a general appeal from both of these orders.
We turn to allegations of error. In the defendant’s affidavit in support of his motion to set aside the default, and the decree based thereon, he counted heavily upon the allegation that he, in his own words, “was never served with any summons, bill of complaint or restraining order on October 18, 1954, nor was there exhibited to him on said day and at the same time the original of the said summons with the seal of the court impressed thereon, nor was he so served with said documents at any time.”
In his sworn answer, filed at the same time, he asserts that “during the course of these proceedings” he was in New Orleans, Louisiana. An issue, then, was tendered, going to the jurisdiction of the court over the person of the defendant. Extensive testimony was taken thereon and it comprises much, if not most, of the record before us. We will not summarize. The record discloses variances so marked that they cannot reasonably be said to have resulted from inadvertence or confusion. The trial court reached a conclusion that proper service had been made. We see no ground for disturbing his conclusions.
Appellant, however, has additional strings to his bow. He now tells us that “whether defendant was served or not, to us is of little moment on this ap.peal.” He then points to a number of asserted irregularities, some of which we will consider, others of which, urged in the trial court, are not argued to us on appeal. We will note, in passing, that appellant has not complied with Michigan Court Rule No 67 (1945). He has stated the questions involved but has not used and discussed them “in the same order as topical subheadings throughout the ‘argument’.” Our consideration in this instance of the narrative-type argument should not be taken as precedent.
The relief sought by appellant, from a default, rests primarily in the discretion of the trial court, both as to irregularities urged and the merits of the defense tendered. Much depends on the facts and circumstances peculiar to each case. The responsibility of the trial court is made clear by Michigan Court Rule No 28, § 4 (1945):
“Any order entered under this rule may be set aside on special motion for cause shown, in the discretion of the court, on terms.”
In this Court, as below, defendant urges that the failure of plaintiff - to file a nonmilitary affidavit prior to the- entry of the pro confesso decree was a 'flagrant irregularity, and that in its absence “tbe ■case was not in condition for default, nor in condition to be heard.” Part 1, Rule No 24 of tbe Wayne county circuit court provides as follows:
“In accordance with tbe provisions of * * * (section 53 of PA 1919, No 84, as amended by PA 1937, No 239 [CL 1948, § 32.53 (Stat Ann 1952 Rev §4.644)]), and tbe soldiers’ and sailors’ civil relief ■act of 1940, effective October 17, 1940, nonmilitary affidavits shall be filed by tbe plaintiff before entering any judgment or decree in all actions and proceedings in which there has been no appearance by a defendant. Such affidavits must be executed not more than 3 days before tbe entry of any judgment or decree may be filed with tbe court clerk at the time of bearing or trial. In divorce cases, such affidavits must bear tbe approval of tbe friend of tbe court ■as to their sufficiency.”
The Michigan statute cited makes no reference to tbe affidavit, hence, we turn to the- Federal act (50 USCA App § 520 [1]):
“If an affidavit is not filed showing that tbe defendant is not in tbe military service, no judgment shall be entered without first securing an order of tbe court directing such entry.”
In tbe case before us it appeared with reasonable -clarity from- tbe testimony taken, as well as tbe sworn pleadings before the court, that defendant was a member of a religious order and that be was not in tbe military service. Tbe court thereupon directed tbe entry of the decree. We thus have an order of tbe court with respect thereto, there was no irregularity involved, and we do not rule either upon . the propriety of an order nunc pro tunc to supply an instrument inadvertently omitted, or upon tbe question of whether only a serviceman, or woman, actually prejudiced by tbe lack of tbe affidavit, can move to have the decree against him reopened and be let in to defend, or whether it is a rigid sine qua non, available to the public generally, regardless of service affiliation and regardless of prejudice or injury. See, generally, Bell v. Niven, 225 NC 395 (35 SE2d 182); Commercial Credit Corp. v. Smith, 143 Tex 612 (187 SW2d 363); Hynds v. City of Ada, ex rel. Mitchell, 195 Okla 465 (158 P2d 907).
It is also urged upon us that the court had no jurisdiction to decree a lien on 1/2 of defendant’s property on the ground that the bill of complaint did not specifically pray for such. The point is without merit. A court of equity molds its relief according to the character of the case and it cannot reasonably be said that a lien on property is not germane to the issues presented by a bill praying that property be impressed with a trust. Long v. Earle, 277 Mich 505; Swan v. Ispas, 325 Mich 39.
Other issues raised do not warrant discussion. As we said in Paynton v. Paynton, 194 Mich 504, 507 :
“The action of the court upon such an application as this is largely a matter of discretion; and such discretion will not be interfered with on appeal unless clearly shown to have been abused.”
No such abuse appears. The record as a whole makes clear that there was no denial of due process and we have the most serious misgivings as to the-merits of the defense tendered. We are, moreover, ever mindful of the statutory precept that no default shall be reversed for informality or negligence-by reason of which prejudice shall not have been suffered. CL 1948, § 616.5 (Stat Ann § 27.842). The-result of the action of this Court, and the trial court, is that brother and sister share approximately equally in the estate of their deceased parents. Preju dice is not patent. Abuse is not shown. The trial chancellor’s direction we do not disturb.
Affirmed. Costs to appellee.
Carr, C. J., and Btjtzel, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Per Curiam.
Appellants appeal by leave granted the circuit court’s order affirming the decision of the Department of Environmental Quality (DEQ) to grant a groundwater discharge permit to the Kennecott Eagle Minerals Company in connection with the latter’s plan to develop an underground mine to extract nickel and copper from the sulfide ores beneath the headwaters of the Salmon Trout River in the Yellow Dog Plains in Marquette County. We affirm.
I. FACTS
In February 2006, Kennecott submitted applications to the DEQ for a nonferrous metallic mineral mining permit and a groundwater discharge permit. The DEQ consolidated the applications for public hearings. In December 2007, the DEQ issued mining and discharge permits to Kennecott.
Appellants requested contested case hearings on both permits. Appellants’ major concerns were that the mine might collapse and that operations would produce excessive acid rock drainage, either of which would result in serious damage to the area’s environment and natural resources, including the Salmon Trout Eiver. The contested case proceedings progressed through the proposal for decision by the administrative law judge (ALJ) to the final decision-maker’s January 14, 2010 final determination and order, which adopted the proposal for decision, but for minor adjustments, and the DEQ affirmed the granting of the permits.
Appellants sought judicial review in the circuit court, which, in a lengthy and detailed opinion and order, affirmed the DEQ in all regards. This Court granted leave to appeal in an unpublished order entered August 7, 2012.
II. STANDARDS OF REVIEW
The circuit court’s task was to review the administrative decision to determine if it was authorized by law and supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28; MCL 24.306(1). An agency decision is not authorized by law if it violates constitutional or statutory provisions, lies beyond the agency’s jurisdiction, follows from unlawful procedures resulting in material prejudice, or is arbitrary and capricious. Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998).
“[W]hen reviewing a lower court’s review of agency action this Court must determine whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.” Boyd v Civil Serv Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). “This latter standard is indistinguishable from the clearly erroneous standard .... [A] finding is clearly erroneous when, on review of the whole record, this Court is left with the definite and firm conviction that a mistake has been made.” Id. at 234-235.
A tribunal’s interpretation of a statute is subject to review de novo. In re Complaint of Rovas, 482 Mich 90, 102; 754 NW2d 259 (2008). A tribunal’s interpretation of an administrative rule is reviewed likewise. Aaronson v Lindsay & Hauer Int’l Ltd, 235 Mich App 259, 270; 597 NW2d 227 (1999). A tribunal’s evidentiary decisions are reviewed for an abuse of discretion. See Price v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d 337 (1993).
Unpreserved issues, however, are reviewed for plain error affecting substantial rights. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).
III. SCOPE OF CONTESTED CASE PROCEEDINGS
Appellants argue that the administrative law judge erred by allowing the introduction of new evidence in the contested case proceedings, or otherwise in treating the contested case as an extension of the original process of deciding the permit application. Appellants suggest that the original application proceedings leading up to the initial decision to issue the groundwater discharge permit should be deemed a completed adjudication, with the contested case proceedings that followed then serving as the first stage of appellate review, which for that reason should have proceeded with a conservative approach to taking new evidence. The DEQ and the circuit court rejected this argument, as do we.
Section 1701(1) of the Natural Resources and Environmental Protection Act, MCL 324.1701, authorizes the circuit court to grant “declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” Section 1704(2) adds that, where “administrative, licensing, or other proceedings are required or available to determine the legality of the defendant’s conduct, the court may direct the parties to seek relief in such proceedings.” MCL 324.1704(2). Section 1704(4) states: “If judicial review of an administrative, licensing, or other proceeding is available, . . . the court originally taking jurisdiction shall maintain jurisdiction for purposes of judicial review.” MCL 324.1704(4).
Water resources protection falls under Part 31, MCL 324.3101 to MCL 324.3134, of the Natural Resources and Environmental Protection Act. MCL 324.3103(1) states that “[t]he department shall protect and conserve the water resources of the state and shall have control of the pollution of surface or underground waters of the state and the Great Lakes, which are or may be affected by waste disposal of any person.” Section 3106 states that “[t]he department shall establish pollution standards for lakes, rivers, streams, and other waters of the state . . . [and] shall issue permits that will assure compliance with state standards to regulate municipal, industrial, and commercial discharges or storage of any substance that may affect the quality of the waters of the state.” MCL 324.3106. Section 3112(1) states that “[a] person shall not discharge any waste or waste effluent into the waters of this state unless the person is in possession of a valid permit from the department.” MCL 324.3112(1). Section 3113(3) authorizes “the permittee, the applicant, or any other person” to file objections and request a contested case hearing in accordance with the Administrative Procedures Act. MCL 324.3113(3).
These statutory provisions collectively set forth avenues for the DEQ to arrive at a single final decision on a permit application: agency review of extensive application materials subject to broadening with a contested case hearing when an applicant or third party persuades the agency that the additional procedure is warranted.
Appellants’ interpretation of those provisions as establishing an initial agency decision as a final order with the contested case hearing functioning as appellate review is a strained one. This is particularly so considering that MCL 324.1704(2) encourages judicial deference to administrative proceedings where required, and MCL 324.1704(4) then calls for the court otherwise so deferring its original jurisdiction to “maintain jurisdiction for purposes of judicial review.” These provisions call for administrative proceedings to arrive at a final decision first subject to appeal in the circuit court. Other authorities bearing on contested cases and appeals support our conclusion.
Appeals involve the parties in the original litigation, or subsets of them, and come about when initiated by one or more parties, with strangers to the case eligible to participate only as amici curiae constrained to addressing issues raised by the parties. See MCR 7.212(H). But Part 31 authorizes even strangers to the original permit proceedings to petition for a contested case hearing. MCL 324.3113(3).
Further, the rules governing appellate practice establish that appeals in this Court “are heard on the original record,” MCR 7.210(A), except that this Court, “in its discretion, and on the terms it deems just,” may “permit amendments, corrections, or additions to the transcript or record,” MCR 7.216(A)(4). In contrast, MCL 24.275 sets forth several general rules for the admission of evidence in contested case proceedings in the administrative setting, including incorporation by reference of “the rules of evidence as applied in a nonjury civil case in circuit court,” and the statement that “an agency may admit and give probative effect to evidence of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.” This statute is inclusive in nature, inviting further evidentiary development. As are the administrative rules governing evidence in contested case proceedings. Mich Admin Code, R 324.64(5) states that “[p]arties are entitled to offer evidence as to the facts at issue,” Subrule (2) states that “parties shall present the evidence in an order determined by the administrative law judge,” and Subrule (4) authorizes parties to cross-examine witnesses. The conservative provisions for enlarging the record for purposes of appeals in this Court thus stand in stark contrast to the liberal provisions for presenting new evidence in administrative contested case proceedings.
At oral argument, appellants attempted to draw support for their position from the administrative rules promulgated to implement Part 31. In particular, Mich Admin Code, R 323.2133, Subrule (1), which authorizes “the department” to issue a final decision on a permit application after review of pertinent determinations, recommendations, and comments, and Subrule (2), which states that “[a]n appeal to a final determination of the department made pursuant to subrule (1) ..., or to a condition of a permit issued, or the denial of a permit pursuant to part 31 of the act and the rules shall be in accordance with and subject to section 3113 of part 31 of the act.” (Emphasis added.)
Appellants argue that use of the word “appeal” indicates the understanding that a contested case proceeding following an initial agency decision is in the nature of an appellate proceeding. We disagree. The word “appeal” appears in tandem with a reference to MCL 324.3113, and thus the latter’s Subsection (3) that, again, directs that a contested case hearing proceed in accordance with the Administrative Procedures Act. That incorporation by reference thus brings to bear the generous provisions of MCL 24.275 for submission of new evidence, which, as noted, are more consistent with original actions than appellate ones. Further, “[i]t is fundamental administrative law that administrative agencies are the creatures of statute.” Castro v Goemaere, 53 Mich App 78, 80; 218 NW2d 395 (1974). Accordingly, an agency cannot, by word choice or otherwise, transform statutory provisions reserving appellate review to the judiciary into a scheme whereby the agency itself sits as its own first appellate tribunal.
Appellants rely on In re 1987-88 Med Doctor Provider Class Plan, 203 Mich App 707; 514 NW2d 471 (1994), where this Court held that a contested case proceeding conducted in accordance with the Administrative Procedures Act, which thus may involve introduction of new evidence, does not necessarily transform the contested case proceeding into “a ‘square one’ determination ‘de novo’ ” of the issue at hand. Id. at 728. But, as the circuit court in this case noted, that case involved “an unusual appellate process.” Id. at 724. At issue was a statutory scheme according to which a determination of the Insurance Commissioner is subject to appellate review by an independent hearing officer. See id. at 710. This Court noted that, although the appeal was to take the form of a contested case proceeding under the Administrative Procedures Act, the pertinent provisions of the Nonprofit Health Care Corporation Reform Act, MCL 550.1101 et seq., consistently specified that the independent hearing officer’s review was in the nature of an appeal. In re Med Doctor, 203 Mich App at 725-726. Accordingly, despite being directed to conduct a contested case hearing pursuant to the Administrative Procedures Act, the independent hearing officer owed considerable deference to the Insurance Commissioner. Id. at 727-728. In re Med Doctor is distinguishable from the instant case in that Part 31 nowhere describes as an appeal a contested case proceeding to decide whether to grant a groundwater discharge permit.
Appellants also rely on Sierra Club Mackinac Chapter v Dep’t of Environmental Quality, 277 Mich App 531; 747 NW2d 321 (2008), in which this Court disapproved of the DEQ’s practice of issuing general permits to allow concentrated animal feeding operations to develop their own comprehensive nutrient management plans that substantially bypassed the public participa tion required for the permitting process by the federal Clean Water Act. Id. at 554-555. Sierra Club is distinguishable from the instant case because the application process here at issue included extensive public notice and comment, of which appellants took full advantage.
Appellants complain that the additional evidence received through contested case proceedings was not subject to such public scrutiny, but cite no authority that stands for the proposition that, when the evidentiary record is supplemented for contested case proceedings in accordance with MCL 324.3113(3), MCL 24.275, and Rule 324.64, any such new evidence must be limited to matters subjected to public notice and comment in accordance with the initial review process. We do not deem the Legislature’s apparent satisfaction that public notice and comment apply to only the initial permitting process as suggesting that the Legislature envisioned proceeding to a contested case hearing as starting the appeal process instead of as continuing the original decisional mechanisms.
For these reasons, the DEQ and the circuit court correctly recognized the contested case proceeding below as an extension of the initial application process for the purpose of arriving at a single final agency decision on the application for a groundwater discharge permit.
m SCOPE OF THE PART 31 PERMIT
Kennecott applied for a permit to discharge storm water coming into contact with potentially polluting materials at the surface of the mine site, drainage water collected from the development rock storage area, and water pumped out of the mine to enable mining operations. The DEQ granted a permit authorizing a maxi mum daily discharge originating from the aforementioned sources of 504,000 gallons per day, or 350 gallons per minute, through the treated-water infiltration system. Appellants argue that the Part 31 permitting process should have also covered Kennecott’s plans to recirculate utility water within the mine, to backfill the mine cavity in time by returning development rock to it, and to reflood the mine upon the completion of operations. At issue are whether the circuit court erred by treating this issue as properly preserved, whether it correctly allocated the burden of proof, and whether it correctly identified the pertinent substantive requirements of Part 31.
A. ISSUE PRESERVATION
An issue is preserved for appellate review if it was raised in, and decided by, the trial court. See Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). In this case, there was considerable advocacy and decision-making concerning this issue in the proceedings below.
In answering appellants’ exceptions to the proposal for decision, Kennecott argued that the instant proceeding was limited to a determination of the adequacy of the permits at hand and that appellants’ “claim that Kennecott needs additional permits to engage in mining activity is not a basis for overturning the Permits at issue in this proceeding.” Kennecott appended to that brief a copy of its closing arguments and proposed findings of fact and conclusions of law, which included the assertions that the alleged discharges that appellants oppose “do not involve ‘discharges’ at all within the meaning of the Part 22 groundwater permit rules, or they are the subject of specific exemptions from the permitting requirements of the Part 22 rules.”
An employee of the DEQ’s Water Bureau testified that the agency’s position was that the discharges that appellants oppose came under exemptions to permit requirements as specified in Mich Admin Code, R 323.2210(a) to (x), or, alternatively, that because the discharges in question all involved in-mine operations, they were subject to regulation under the provisions of Part 632 governing mining permits, not the provisions of Part 31 governing groundwater discharge permits.
For these reasons, the circuit court did not err by considering whether, to the extent that the discharges that appellants opposed required permits, they did not necessarily have to come under the specific permit under review.
Appellants point out that Mich Admin Code, R 324.74(1) directs that review of a proposal for decision by a final decision-maker “shall be restricted to the record made at the hearing and the exceptions and arguments submitted by the parties” and suggest that subsequent review should be likewise so limited. We disagree. As discussed in Part III of this opinion, contested case proceedings of this sort are an extension of the original application proceedings, not appellate review of the initial decision on the application. Rule 324.74(1) thus sets forth limitations on the final decision-maker after a potentially lengthy and expansive decision-making process presided over by the ALJ. It does not admonish against exercise by an appellate court, including the circuit court when sitting in that capacity, of any of an appellate court’s normal decision-making prerogatives.
B. BURDEN OF PROOF
The circuit court, citing Brown v Beckwith Evans Co, 192 Mich App 158, 168-169; 480 NW2d 311 (1991), recited the general rule according to which a party claiming the benefit of a statutory exception bears the burden of proving the applicability of that exception and then concluded that the AL J and the final decision-maker below erred by putting the burden on appellants to prove that exemptions to permit requirements did not apply. We conclude that the circuit court was led slightly astray on this issue.
In discussing the Part 31 permit, the ALJ never suggested that Kennecott bore no responsibility for showing that exemptions applied while holding appellants responsible for proving that they did not. Appellants concede that the DEQ’s final determination and order similarly does not state that appellants were obliged to prove that the exemptions did not apply, but note that the order does state in general terms that the petitioners in a contested case hearing bear the burden of proving the objections they raise.
As we discussed in the companion case, an applicant for a permit retains that status, and the attendant burden of proof, throughout the permitting process in connection with proving entitlement to the permit, but a petitioner in a contested case hearing normally bears the burden of proving that petitioner’s objections. See Mich Admin Code, R 323.2206(1) (“It is the responsibility of the applicant to provide the information described in these rules as required or necessary for the department to make a decision.”); Mich Admin Code, R 324.64(1) (imposing on a party “filing an administrative complaint or petition for a contested case hearing... the burden of proof and of moving forward unless otherwise required by law”).
Accordingly, to the extent that Kennecott relied on exemptions to permit requirements, it bore the burden of proving that they applied, and to the extent that appellants disagreed, they bore the burden of proving otherwise. There was no error in allocations of burdens of proof in connection with this issue.
Further, this issue concerns a question of law, not evaluation of evidence. Accordingly, as the circuit court held, any error in the allocation of burdens of proof was harmless.
C. PART 31 PERMIT
Kennecott’s application for a Part 31 permit covered discharges of storm water coming into contact with potentially polluting materials at the surface of the mine site, drainage water collected from the development rock storage area, and water pumped out of the mine to enable mining operations, and the resulting permit authorizes a maximum daily discharge originating from the aforementioned sources of 504,000 gallons per day, or 350 gallons per minute through the treated-water infiltration system. Appellants insist that Kennecott’s plans to recirculate utility water within the mine, to backfill excavated areas in time by returning development rock to the mine cavity, and to reflood the mine upon the completion of operations likewise require a Part 31 permit.
The ALJ, in the proposal for decision, held that those activities “either do not involve ‘discharges’ within the meaning of the Part 22 administrative rules, or are subject to specific exemptions from the permitting requirements as set forth in those rules.”
Concerning utility water, Mich Admin Code, R 323.2201(i) defines “discharge” as “any direct or indirect discharge.. . into the groundwater or on the ground” of waste, waste effluent, wastewater, pollutant, cooling water, or a combination of those things. The ALJ noted this definition and added that according to Webster’s Ninth New Collegiate Dictionary (1983) “discharge” means “ ‘a flowing or issuing out.’ ” The ALJ reasoned that the “utility water is cycled through the mining operation in closed-loop fashion,” and since “[t]here is no ‘discharge’ of utility water,” there is no need for a discharge permit.
The ALJ continued that the process of “backfilling and rapidly reflooding the mine” came under the following three exemptions set forth in Rule 323.2210:
(w) A discharge that has been specifically authorized by the department under a permit if the permit was not issued under this part.
(x) A discharge that occurs as the result of placing waste materials on the ground in compliance with a designation of inertness issued under part 115 ....
(y) A discharge that has been determined by the department to have an insignificant potential to be injurious based on volume and constituents. In making the determination, the department shall follow the public notice and comment procedures of R 323.2117 to R 323.2119. The department may establish criteria, limitations, or conditions applicable to the discharge to ensure that it meets the terms of this subdivision.
The ALJ elaborated as follows:
Because Kennecott’s backfilling and reflooding operations: (1) are authorized under the Part 632 permit; (2) consist of backfill materials that automatically qualify as “inert” under Part 115[ ]; and (3) will occur in an unusable aquifer, and because the Part 632 permit imposes requirements to protect the upper glacial aquifer to minimize the risks of any impacts from the backfill and reflooding, the DEQ implicitly concluded that the backfill and reflooding would not be “injurious”,... they are exempt “discharges” under the Part 22 rules and, therefore, Kennecott is not required to obtain an additional Part 31 permit for those activities.
Appellants expressly eschew offering argument with the ALJ’s reasoning, characterizing such advocacy as beyond the scope of this appeal.
The circuit court in turn held as follows:
[T]he permit being challenged here is a permit to discharge from the mine’s wastewater treatment system. The necessity for Kennecott to seek additional Part 31 discharge permits for other discharges, specifically for the discharge into the mine of utility water, backfill, and water to re-flood the mine, accordingly, is irrelevant....
. . . Petitioners assert that they are not arguing that additional Part 31 permits are required, but rather that the discharges into the mine of utility water, backfill, and water to re-flood the mine are required to be considered and included in the Part 31 permit at issue here. Clearly discharges into the mine, which never become discharges from the wastewater treatment system, are entirely different [from] discharges from the wastewater treatment system into the groundwater and, accordingly, to the extent that such discharges might require a Part 31 permit, that permit (or permits) would be separate from the Part 31 permit currently being challenged.
We think that the ALJ’s treatment of this issue was more satisfactory than that of the circuit court. It is apparent that appellants’ concern was that there was no Part 31 permit for utility water within the mine, or for backfilling and reflooding, not necessarily that the permit under consideration did not happen to include those things. Because the objection was that those activities were subject to regulation through a Part 31 permit, but that none was requested, let alone issued, the circuit court was hasty in disposing of those objections simply on the grounds that additional Part 31 permitting might come about.
The ALJ, however, ably identified bases for recognizing that Kennecott’s plans for utility water within the mine do not involve any discharges for purposes of Part 31, along with exemptions to permit requirements applicable to the plans for backfilling and reflooding, which harmonize nicely with appellees’ position that activities within the mine came under the Part 632 permit and thus required no separate Part 31 permit.
For these reasons, we adopt the ALJ’s reasoning as our own in affirming the circuit court’s determination that the discharge permit at issue was not invalidated for failing to cover the additional activities of which appellants here make issue.
V WASTEWATER TREATMENT SYSTEM
Appellants argue that the DEQ and the circuit court erred by approving plans for the wastewater treatment system on the basis of the grounds that the design was not yet complete and that Kennecott did not satisfy the requirement to predict wastewater influent concentrations with some accuracy. The circuit court affirmed the DEQ’s conclusions that the state of the design of the wastewater treatment system was sufficiently advanced so that the DEQ could evaluate it, that the estimates or assumptions used to predict the quality of influent and rate of water inflow satisfied the requirements of the applicable administrative rules, and that Kennecott used the best available information or technology for those purposes. We agree with the circuit court.
Again, MCL 324.3106 states that “[t]he department . . . shall issue permits that will assure compliance with state standards to regulate municipal, industrial, and commercial discharges or storage of any substance that may affect the quality of the waters of the state,” and MCL 324.3112(1) states that “[a] person shall not discharge any waste or waste effluent into the waters of this state unless the person is in possession of a valid permit from the department.”
The applicable administrative rules require an applicant for a Part 31 discharge permit to show that the proposed wastewater treatment system has sufficient capacity to treat the anticipated influent and to describe the anticipated influent, characterize the discharge using the best available information, and evaluate and implement the best technology in processing and treatment that would eliminate or reduce the new or increased loading of certain listed substances. “It is the responsibility of the applicant to provide the information described in these rules as required or necessary for the department to make a decision.” Mich Admin Code, R 323.2206(1).
A. DESIGN OF WASTEWATER TREATMENT SYSTEM
Mich Admin Code, R 323.2218(2) conditions discharge permits on a showing that “the proposed system for treating the wastewater to be discharged shall have sufficient hydraulic capacity and detention time to adequately treat the anticipated organic and inorganic pollutant loading.” It states that, for this purpose, “at the time of application a permit applicant shall submit a basis of design for the treatment system,” and it lists many factors to be covered. Subrule (2)(c) calls for “[a] description of the existing or proposed treatment, or both,” then sets forth many details that must be addressed.
Appellants do not assert that Kennecott’s application failed to address any of these requirements, but argue instead that testimony concerning the possibility of design modifications or other changes in operations as needs arise showed that there really was no complete plan in place for the DEQ to evaluate.
An environmental chemist described the proposed wastewater treatment system as “expensive,” “complicated,” and “unprecedented,” and elaborated that “it would be highly unusual to have all these components put together and work the first time out.” The expert continued, “I suspect that certainly before designing the system . . . there would need to be quite a bit more work before you can assume a system like this will work.” The witness opined that the proposal was “not unreasonable,” but nonetheless “may not work.” The expert noted that alternative approaches were under consideration for a major aspect of the system’s design and expressed the concern that “certainly this water treatment system has not been tested, and they’re not completely sure how they’re going to configure it yet either.” The witness added, “I would suggest that it needs certainly a much more extensive set of tests to determine in fact that these individual components could. . . come together to treat water quality that’s both. . . predicted and then plus some uncertainty in that water quality.”
The lead process engineer for the mining project, who served as its certifying engineer for the groundwater discharge application, similarly testified that Kennecott was evaluating some alternative approaches for some aspects of the wastewater treatment process and that early in the review process it would be unusual to offer more detailed specifications for the system. This expert agreed that the particular combination of components envisioned for the instant system was a new one, but added that the individual components were not new and were well tested. The process engineer continued that the system was conservatively designed so that it would be able to treat much higher concentrations of contaminants than predicted levels and still stay within the permitted discharge limits.
The official from the DEQ’s Water Bureau who reviewed the basis for the design of the wastewater treatment system stated that the individual unit processes proposed or included in the basis of design for the system in question were demonstrated technologies used in other industrial settings and opined that there was no reason to believe that they would not work well. This witness opined that Kennecott’s application and supplemental information adequately described the basis for the proposed system and its expected performance. She additionally opined that Kennecott had shown that the proposed treatment system made use of the most advanced, adequately demonstrated, and reasonably available treatment techniques.
The circuit court noted that Rule 323.2218(2) does not require any set level of specificity in making the required showing, but, instead, requires a description of the existing or proposed treatment along with, to the extent applicable, engineering plans depicting such things as a schematic flow diagram, information on unit processes, flow rates, and design hydraulic capacity. The court further noted that the only requirement of finality with regard to the wastewater treatment system pertained to the Part 632 mining permit, not the Part 31 discharge permit.
We agree that the call for the submission of a “basis of design” in Rule 323.2218(2) is not a demand for an exhaustive plan complete in every detail. The rule thus reflects the understanding that undertakings of this sort remain projects in progress well into actual operation. That certain details of operation were not yet firmly in place, or that alternatives were under consideration for some aspects of the design, underscore Kennecott’s preparedness to address a broad range of potential realities as they come into play in order for Kennecott to operate within permit limits. Because there was substantial evidence that the design of the proposed wastewater treatment system, including where alternatives were yet in contemplation, was sufficiently complete and detailed to allow the DEQ to evaluate it for purposes of the Part 31 permit, the circuit court properly rejected appellants’ argument to the contrary.
B. ANTICIPATED INFLUENT CONCENTRATIONS
Mich Admin Code, R 323.2218(2)(b) requires that a discharge permit applicant’s description of the basis for design of the treatment system include “a description of the anticipated influent, including the substances to be treated . . . and the concentrations of the substances.” Appellants argue that Kennecott failed to satisfy this requirement because its witnesses provided insufficiently precise or firm estimates in these regards.
Appellants challenge of the testimony of the geochemist whose company performed the geochemical testing in connection with the instant mining project. That witness testified that “there are sufficient sulfide minerals present in the development rock and the concentrations of trace metals are sufficiently high that active management of all rock units in the mine . . . will be required in order to have a modern environmental program for a mine.” He explained that he did not endeavor to predict precisely the number of various constituents that would be in the water in the mine, or water collected from the development rock storage area, because he did not believe that such predictions were scientifically possible. The expert elaborated that he had engaged in “an exploratory type of modeling for the purposes of answering simple questions about the directions that materials are going to go in a system, not making firm predictions of specific details that would exist sometime in the future before we’ve ever gone underground.”
The geochemist continued that his reporting had relied on estimates of concentrations of pollutants that were generally lower than those of appellants’ experts because “we had data only up to about week 50” and the others were using a “time period in here around 50 to 70 weeks,” and he added that “there are increasing concentrations in some but not all of the samples.” But the witness stated that, even if crediting the higher figures, his conclusion remained that the situation called for active management of all rock types.
The geochemist additionally acknowledged that he used an estimate for the rate of groundwater inflow into the mine based on information from Kennecott’s hydrogeologist and that, had he used the estimate suggested in a later report, the result would have been an increase in the calculated concentration by a factor of approximately 2.4. The witness characterized those figures as illustrating the uncertainty inherent in calculations of that sort and reiterated that his advice to Kennecott, using either an estimate or a calculation, would have been that the situation called for active management.
Appellants suggest that this expert chose his figures arbitrarily, making no effort to arrive at accurate conclusions, and thus that his work fell short of satisfying the requirement of Rule 323.2218(2)(b) for “a description of the anticipated influent, including the substances to be treated .. . and the concentrations of the substances.” The circuit court rebuffed those contentions, crediting the recommendation for “active management” as covering well the possibility that the hazard for acid rock drainage would be greater than estimated, and similarly noting that the various estimates Kennecott’s experts used in modeling the operations were conservatively chosen in order to steer operations toward a system that could process even the largest reasonably apprehended quantities of wastewater and pollutants. The court further noted that Rule 323.2218(2)(b) does not call for accurate predictions of precise concentrations of pollutants, but instead reflects the understanding that “where an operation has not yet been undertaken it is scientifically impossible to provide an exact or accurate accounting of the concentrations of the substances that will be found in the operation’s influent wastewater.”
The circuit court concluded that, for these reasons, “there is evidence that a reasoning mind would accept as sufficient to support the . . . finding that Kennecott’s influent wastewater quality prediction met the requirements of Part 31 and the administrative rules promulgated to implement Part 31.”
We conclude that the circuit court correctly reasoned that, despite appellants’ characterizations, the geochemist at issue was as concerned about the accuracy, or lack thereof, of some of the figures he was working with as the situation demanded. The court recognized that what was important, in light of the regulatory purpose behind Rule 323.2218(2)(b), was that the expert advised active management, meaning close monitoring and quick adjustments, in connection with all rock types removed from the mine and that there was substantial evidence that the wastewater treatment system had sufficient capacity to handle the whole range of concentrations of contaminants, and the water flow rates, that the various witnesses put forward as reasonably likely to occur.
Appellants further assert that the geochemist’s prediction of mine drainage quality omitted the presence of backfill, where the backfilling actually planned would cause additional leaching and thus higher concentrations of pollutants, and that this expert admitted that the prediction was not accurate and was not intended to be. However, this characterization does not accurately reflect the record. In fact, the geochemist explained that he eschewed taking backfill into account for that particular calculation because he “was looking at what the impacts of the mine walls would be on water quality” and was thus “simplifying the system for the purposes of understanding a partial behavior and providing information that would be useful to my client.” The expert then continued that in forecasting a final scenario for the water quality in the mine after the completion of operations, he had “assumed 379,000 tons of backfill without limestone amendment.”
C. CHARACTERIZATION OF DISCHARGE, PREDICTED EFFLUENT, BEST TECHNOLOGY AVAILABLE
Mich Admin Code, R 323.2220(1) obligates an applicant for a discharge permit to “properly characterize the waste or wastewater to be discharged” by determining “the pollutants that may be present in the waste or wastewater in light of the process by which it is generated.” Subrule (6) states that, “[f]or a facility not yet operating, the discharger shall characterize the anticipated discharge using the best available information” and “identify the source of the information in the application.” Similarly, Mich Admin Code, R 323.1098(4)(b)(iii) requires a “discharger” in certain situations, including this one, to “evaluate and implement the best technology in process and treatment (BTPT) that would eliminate or reduce the new or increased loading of the LSB-BSIC,” and it defines “best technology in process and treatment” as “the most advanced treatment techniques which have been adequately demonstrated and which are reasonably available to the discharger.”
Appellants argue that their objections concerning the state of design completion, and the accuracy of various predictions and estimates, also apply in con nection with the rules governing discharges on the ground that, before deciding to issue a permit on the basis of an applicant’s predictions of the concentrations of contaminants that will be in its discharge, the DEQ must confirm that the applicant’s predictions are correct and that the proposed treatment system is in fact capable of meeting those predictions. For the same reasons that we concluded that the circuit court correctly rejected those objections in connection with Rule 323.2218(2)(b) (anticipating influent quality) and (c) (system design), we conclude that the circuit court correctly rejected them in connection with the rule governing effluent. Further, the circuit court specifically cited expert testimony that the proposed treatment system made use of the most advanced, adequately demonstrated, and reasonably available treatment techniques as substantial evidence that that requirement of Rule 323.1098(4)(b)(iii) had been met.
For these reasons, we reject appellant’s claims of error concerning system design, estimates or assumptions concerning concentrations of contaminants, or use of the best available information or technology.
VI. CONCLUSION
For the reasons stated, we affirm the decision of the circuit court affirming the DEQ’s decision to grant Kennecott a Part 31 groundwater discharge permit.
Affirmed. No taxable costs under MCR 7.219, a question of public policy being involved.
Cavanagh, P.J., and Owens and Stephens, JJ., concurred.
According to expert testimony, a project of this sort involves excavating large quantities of rock that, when exposed to oxygen and water, generate sulfuric acid. The parties agree that the hazard of acid rock drainage inherent in this project necessitates careful management.
As noted, this appeal relates only to the decision to grant the groundwater discharge permit. The decision to grant the mining permit is the subject of this case’s companion, Nat ’l Wildlife Federation v Dep’t of Environmental Quality, 306 Mich App 336; _ NW2d _ (2014) (Docket No. 307602).
MCL 324.101 et seq.
MCL 24.201 et seq.
33 USC 1251 et seq.
One of appellants’ witnesses described “utility water” as inflowing water that, “before it goes into the wastewater treatment plant... is peeled off. .. for different uses at the mine facility.”
Nat’l Wildlife Federation, 306 Mich App at 345.
“Development rock” is the rock that must be excavated to provide access to the desired ores.
Part 115 of the Natural Resources and Environmental Protection Act comprises MCL 324.11501 to MCL 324.11550 and concerns solid waste management. Within those provisions, MCL 324.11504(2) defines “inert material” as “a substance that will not decompose, dissolve, or in any other way form a contaminated leachate upon contact with water, or other liquids determined by the department as likely to be found at the disposal area, percolating through the substance.” MCL 324.11507(3), in turn, states: “The department may exempt from regulation under this part solid waste that is determined by the department to be inert material for uses and in a manner approved by the department.”
“Influent” refers to the wastewater coining into the system for treatment, and “effluent” refers the treated water to be discharged into the environment.
The witness here referred to Kennecott’s plan to neutralize stored development rock with limestone to reduce its potential to leak sulfuric acid.
The DEQ determined that this “antidegradation” rule would apply to the discharges here at issue, and Kennecott has not argued otherwise.
This initialism stands for “Lake Superior basin-bioaccumulative substances of immediate concern,” which are “substances identified in the September 1991 binational program to restore and protect the Lake Superior basin ... .” Mich Admin Code, R 323.1043(qq).
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Shapiro, J.
This case arises out of an October 12, 2012 traffic stop during which police officers discovered contraband in defendant’s pickup truck. Defendant moved to suppress the evidence of the discovered contraband on the grounds that the traffic stop violated his rights under the Fourth Amendment of the United States Constitution and Article 1, § 11 of the Michigan Constitution. The trial court denied the motion, and we granted defendant’s application for leave to appeal. Because no traffic violation had occurred or was occurring, we reverse.
The Fourth Amendment guarantees “[t]he right of the people . . . against unreasonable searches and seizures . . . .” US Const, Am IV “An automobile stop is . . . subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. . . . [T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v United States, 517 US 806, 810; 116 S Ct 1769; 135 L Ed 2d 89 (1996); see also People v Kazmierczak, 461 Mich 411, 420 n 8; 605 NW2d 667 (2000); People v Davis, 250 Mich App 357, 363-364; 649 NW2d 94 (2002).
The prosecution concedes that when the officers initiated the traffic stop they had no basis to believe that defendant was engaged in any criminal conduct. In addition, the officers testified that defendant was driving safely, they did not see him violate any traffic laws governing vehicle operation, and he did not engage in any suspicious behavior. They testified that the sole basis for the stop was their conclusion that defendant was violating a traffic law, MCL 257.225(2), which provides in pertinent part that “[a vehicle’s license] plate shall be maintained free from foreign materials that obscure or partially obscure the registration information and in a clearly legible condition.” We conclude that the circumstances observed by the officers did not constitute a violation of this statute.
As noted, the officers testified that defendant was driving safely and lawfully when they stopped him. They explained that when they have no other matters to attend to on patrol, as a matter of course they randomly enter the license plate numbers of cars they are following, a practice that sometimes reveals that the driver is subject to an outstanding warrant. According to the officers’ testimony, they had difficulty reading one of the seven characters on the pickup’s license plate due to the presence of a trailer towing ball attached to the rear bumper. One of the officers testified that he was able to determine, while driving behind defendant, that the license plate number was either CHS 6818 or CHS 5818. It was, in fact, CHS 6818.
Common experience reveals that thousands of vehicles in Michigan are equipped with trailer hitches and towing balls. The prosecution argues, however, that the presence of that equipment behind a license plate is a violation of MCL 257.225(2) and, therefore, the officers had proper grounds to conclude that a traffic law was being violated. However, the mere presence of a towing ball is not a violation of MCL 257.225(2). The statute provides that “\t\he plate shall be maintained free from foreign materials that obscure or partially obscure the registration information and in a clearly legible condition.” (Emphasis added.) The statute makes no reference to trailer hitches, towing balls, or other commonly used towing equipment that might partially obscure the view of an otherwise legible plate. There is no evidence that the plate on defendant’s truck was not maintained free of foreign materials. There is similarly no evidence that defendant’s plate was dirty, rusted, defaced, scratched, snow-covered, or otherwise not “maintained” in legible condition. The plate was well lit and in essentially pristine condition. Moreover, the officers agreed that the plate was legible, a fact confirmed by the photos taken at the scene.
In this case, the officers did not have grounds to believe that defendant was in violation of MCL 257.225(2) and they, as well as the prosecution, agree there was no other basis for the stop. Accordingly, we reverse the trial court’s denial of defendant’s motion to suppress the contraband seized during an automobile search conducted in violation of the Fourth Amendment. Whren, 517 US at 809-810.
Reversed. We do not retain jurisdiction.
We review de novo a trial court’s ruling on a motion to suppress. People v Davis, 250 Mich App 357, 362; 649 NW2d 94 (2002).
As amended by 2014 PA 26. MCL 257.225(a) as amended by 1995 PA 129 was the version in effect at the time of the traffic stop, but it had only slight grammatical differences that do not affect the analysis. | [
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Per Curiam.
Defendant appeals as of right from her jury trial conviction for possession with intent to deliver 225 or more grams of cocaine, MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii). She was sentenced to from twenty to thirty years imprisonment pursuant to the statute. This appeal raises six claims of error, none of which we find meritorious. We thus affirm defendant’s conviction and sentence.
Defendant was arrested at the Saginaw County Jail just after she concluded visitation with her boyfriend, Tony Restrepo, who had been arrested earlier in possession of nearly two pounds of cocaine. Restrepo had been arrested for supplying cocaine to Kathy Baugh, who identified defendant as the person with Restrepo on the night he supplied Baugh with cocaine. Based on these facts, the police waited for defendant to visit Restrepo in order to arrest her for her involvement in supplying cocaine to Baugh. However, at the time of her arrest cocaine was found in her purse and a subsequent search of her rented car resulted in discovery of 536 grams of cocaine which gave rise to the charge for which she was convicted.
Defendant first asserts that the trial judge erred in denying her motion for a new trial on the grounds that the discovery of the cocaine in her car was the fruit of an unlawful search. Defendant was arrested by Officer James Dankert of the Saginaw Township Police Department. After waiv ing her Miranda rights, she was interrogated by Dankert and FBI Special Agent Ben Walker. On the basis of information garnered during defendant’s interrogation, Officer Dankert impounded defendant’s car and sought a search warrant. When defendant’s car was searched, a total of 536 grams of eighty-nine percent pure cocaine was found.
Following defendant’s posttrial Walker hearing, the trial judge ruled that defendant had knowingly and intelligently waived her Miranda rights when questioned by police and that her statements made to police officers could be used to support a search warrant. He also found that, even without defendant’s incriminating statements, the search warrant affidavit was sufficient to justify a search of defendant’s car. Finally, he concluded that defendant’s statements were not induced by a promise of leniency.
Recently, in People v Lumley, 154 Mich App 618, 620; 398 NW2d 474 (1986), this Court succinctly reiterated the applicable appellate review standard:
On appeal from a Walker hearing, we are required to examine the entire record and reach an independent determination of the voluntariness of the defendant’s statements. People v Catey, 135 Mich App 714; 356 NW2d 241 (1984), lv den 422 Mich 940 (1985). We will affirm the trial court’s ruling unless it is clearly erroneous, such that we have a definite and firm conviction that a mistake has been made. People v Price, 112 Mich App 791; 317 NW2d 249 (1982), lv den 414 Mich 946 (1982).
The voluntariness of a confession must be deter mined from all of the facts and circumstances, including the duration of detention, the manifest attitude of the police toward the suspect, the physical and mental state of the suspect, and the pressures which may sap or sustain the suspect’s powers of resistance and self-control. People v Belknap, 146 Mich App 239, 241; 379 NW2d 437 (1985).
Defendant argues that her statements were involuntary because in the days immediately preceding her arrest she had freebased substantial quantities of cocaine, which seriously influenced her judgment. At the evidentiary hearing the detective and the fbi agent who questioned defendant testified that, while they thought she was a cocaine user, she was coherent and responded in a normal way and her demeanor was not that of a person so narcotized as to be unable to knowingly waive her rights and make a voluntary confession. She waived her rights in writing, signing both the waiver and the acknowledgment without difficulty. Dr. Michael Abramsky, a psychologist testifying for the defense about the effects of cocaine on the brain, opined that at the time of her arrest defendant’s judgment would have been impaired due to her consumption of cocaine. However, cocaine is primarily a mood-altering, not a mind-altering, drug and he could not be certain whether the effects of the cocaine would have worn off to the point where she could function normally again at the time of her arrest or her statements.
Defendant herself testified that she was able to carry out most normal activities. She had great recall during interrogation of the events preceding her arrest, as well as of the incident 2½ months earlier when her boyfriend sold cocaine to Kathy Baugh. However, defendant was evasive at the "proper” points. She did not want to talk about Restrepo or incriminate him.
We are not left with a definite and firm conviction that the trial court erred in finding defendant’s statement voluntary. When interviewed, defendant appeared normal until she was asked to consent to a search of her car. Although she broke down at this point after about two hours of interrogation, significantly, she was able to exercise her judgment and refused to consent to the search. Additionally, she understood that she was under arrest and attempted to bargain with police. After being told that she was being less than truthful, she responded, "I am trying to cooperate, but you haven’t promised me a fucking thing.”
While advanced intoxication from drugs or alcohol may preclude an effective waiver of Miranda rights, People v Davis, 102 Mich App 403, 410; 301 NW2d 871 (1980), the fact that a person was narcotized or under the influence of drugs is not dispositive of the issue of voluntariness. People v Lumley, supra, p 624; People v Prast (On Rehearing), 114 Mich App 469, 483-485; 319 NW2d 627 (1982). The trial judge’s ruling that the statements were voluntary was not erroneous. Further, the. trial judge’s holding that no promises were made to defendant in return for her statements is supported by the fbi agent’s testimony that he informed defendant that neither he nor the detective could extend any type of promise to defendant although the court would be informed of her cooperation if her statements proved truthful. Obviously, defendant did not consider that any promises had been made to her, as during her interview she stated that she was trying to cooperate but had not been promised anything in return. Thus, defendant’s suggestion that there were promises of leniency is without merit.
Defendant’s assertion that the cocaine seized from her car should have been suppressed bécause the warrant affidavit contained deliberately or recklessly false statements is also without merit. Defendant contends that the following statement in the affidavit was false:
Leighty further admitted to Dankert that Antonio Restrepo had requested that she, Leighty, pick up money from drug transactions at several locations about the time of her return recently to Saginaw, and that said money was in a car rented by her from Redmond’s Car Rental of Saginaw that day, which car Detective Dankert found parked outside the county jail, and is a 1981 Chevette as described above.
According to defendant, the statement was false because, although Dankert testified that defendant informed him she was picking up drug money at Restrepo’s request, she later recanted the statement. Further, although she informed Dankert that she had $1,000 in her car and that that was all the money she had, because that amount of money was discovered following the search of her motel room the police had no reason to believe defendant’s car contained any money.
While it is true that suppression of evidence discovered pursuant to a search warrant is required even if the affidavit remains valid after excising an erroneous statement when the statement was intentionally false or given with reckless disregard for the truth, Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978); People v Howey, 118 Mich App 431, 434-435; 325 NW2d 451 (1982), lv den 418 Mich 882 (1983), there is no evidence suggesting such in this case. Defendant inconsistently stated at different times during the interrogation that all of her belongings were in her car and that she had only $1,000 to her name (which the police had already discovered in her motel room) even though she had previously made the statement following the request to search her car that she could not get $50,000 to replace "it.” These contradictory statements by defendant preclude the conclusion that the complained-of statement in the affidavit was intentionally false or made with reckless disregard for the truth.
Defendant also argues that her statement to the effect that she was dead if the police searched her car since she could not come up with the $50,000 to replace "it” was illegally obtained by questioning her after she had requested counsel and thus was improperly used in the affidavit. However, although the testimony of Officer Dankert and Special Agent Walker is inconsistent with regard to when defendant requested counsel, they both testified that defendant’s request occurred after she had made the statement. Thus, defendant’s argument is without merit.
More importantly, the trial court found that the affidavit established probable cause to search defendant’s car even absent all of the statements obtained from defendant during her interrogation. We agree that the other statements in the affidavit, that defendant had sold cocaine on a previous occasion to Kathy Baugh, that she associated with Restropo, who was arrested with 1½ pounds of eighty percent pure cocaine, and that when defendant was arrested police found cocaine in her purse, provided probable cause to issue the search warrant to search defendant’s automobile even without the complained-of statement. See People v Williams, 134 Mich App 639, 643-644; 351 NW2d 878 (1984). The trial court did not err in declining to suppress the evidence on the basis of the war rant affidavit. In summary, none of defendant’s arguments support suppression of the cocaine seized in the search of her vehicle.
Defendant next argues that the prosecutor’s remarks in closing argument regarding the credibility of her expert witness, Dr. Demoethenes Lor-andos, who testified regarding her insanity-diminished capacity defense, which was based upon "cocaine personality dysfunction,” constituted error. At trial, Dr. Lorandos opined that, at the time defendant was arrested, she was mentally ill and lacked the capacity to conform her conduct to the requirements of the law. On cross-examination, the prosecutor confronted the doctor with paragraph two of his written report, in which he stated:
Vicki does not show overt personality pathology, organic brain dysfunction and [shows] no indications of significant disorder of thought or mood so as to find her mentally ill and/or legally not responsible.
The doctor explained that this conclusion was based on his interview with defendant on November 25, 1983, over four months after defendant’s arrest. He stated that, had he been asked to render a written opinion regarding defendant’s mental condition at the time of her arrest, his report would have been completely different both in its stylistic format and in its conclusion.
Further, Dr. Lorandos denied receiving an order of referral from the court directing him to examine defendant. He maintained his examination was only for "case planning” purposes. He flatly denied that he had changed his opinion on the issue of defendant’s criminal responsibility from the time he had filed his written report.
During his closing argument, the prosecutor vehemently argued that the jury should find Dr. Lorandos’ testimony lacked credibility because he had changed his opinion at trial from that stated in his written report. In addition, he attacked the doctor’s professionalism, stating:
He simply switched his testimony, and he didn’t even have the professionalism to amend his report and file it with attorneys for both parties.
In response, defense counsel argued that Dr. Lorandos’ trial testimony should be believed because he was putting his professional reputation on the line by testifying under oath and because the doctor would not have purposefully risked the harm to his professional reputation by stating one opinion in a written report and another at trial. Nonetheless, during his rebuttal argument, the prosecutor continued pounding at the doctor’s credibility and, significantly, at his professionalism, stating:
But the bottom line is this: you choose to give credibility at all to an individual who would change his testimony and not have the professionalism to write a report and file it with the parties.
I mean, it seemed obvious to everyone that the doctor simply had decided to change his testimony. And yet on the witness stand, would the doctor simply say to you, "all right, I decided to change my testimony”?
No, he came up with this, I respectfully suggest, preposterous statement to you, that when he said that she was criminally responsible, and not mentally ill, in his report, he meant at the time of the evaluation. He actually tried to put that one over on you. He wanted you to believe that.
It ought to bother you, ladies and gentlemen of the jury, that a professional who has two degrees and a Ph.D., wouldn’t have the basic professional courtesy to change the report and file it. Wouldn’t have the basic professionalism to tell you on the witness stand, "I have just decided to change my testimony,” instead of trying to make you believe that somehow the opinion on the criminal responsibility had to do with something other than the date of the alleged offense.
Defendant did not object to any of the statements.
While we think that the prosecutor’s argument was improper and bordered on misconduct, we hold that, absent an objection at trial, it does not mandate reversal of defendant’s conviction. Generally failure to object to the prosecutor’s closing argument forecloses appellate review absent manifest injustice. People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977). A remark which could be seen as improper if standing alone, is not a basis for reversal when any unduly prejudicial effect could have been eliminated by a curative instruction had one been requested in a timely objection. A well tried, vigorously argued case should not be overturned due to isolated improper remarks which could have been cured by an instruction had one been requested. Id., p 17. Additionally, remarks by the prosecutor in response to statements made by defense counsel do not constitute error requiring reversal. People v Dersa, 42 Mich App 522, 527; 202 NW2d 334 (1972), lv den 388 Mich 803 (1972); Duncan, supra.
In this case the prosecutor did go beyond the argument that Dr. Lorandos was not credible and attacked his professionalism. While the prosecutor could argue that because Dr. Lorandos’ opinion at trial differed from his opinion expressed in the report he should not be believed, the prosecutor should not have argued that Dr. Lorandos was unprofessional since he changed his opinion and would not admit it and that, therefore, he should not be believed. The former is based on the evidence; the latter is a personal attack. People v Tyson, 423 Mich 357, 376; 377 NW2d 738 (1985). Nonetheless, the error could have been corrected by a timely objection and cautionary instruction.
Defendant’s cited cases, People v Tyson, supra, People v Williams, 218 Mich 697; 188 NW2d 413 (1922), and People v Cowles, 246 Mich 429; 224 NW2d 387 (1929), are all distinguishable by the presence of such a timely objection. Moreover, the errors in both Tyson and Williams were of a more egregious nature than that in the present case and were not remotely based on the trial evidence nor even arguably in response to defense counsel’s argument as is the case here. Thus, while the prosecutor would be well advised in the future to confine his remarks to the evidence, reversal is not required.
Defendant also claims that the trial judge erred in denying her request to instruct the jury on possession of less than 50 grams of cocaine, CJI 12:3:00. Defendant was charged with possession with intent to deliver 225 grams or more of cocaine and the trial court instructed on that crime, as well as on possession of between 225 and 650 grams of cocaine and on possession of between 50 and 225 grams of cocaine. Defendant was found guilty, as charged, of possession with intent to deliver 225 grams or more of cocaine.
At trial it was undisputed that there were 536 grams of cocaine found in defendant’s car; one package contained 470 grams of eighty-nine percent pure cocaine and another package contained 66 grams of eighty-seven percent pure cocaine. Possession of cocaine is a cognate offense rather than a necessarily included lesser offense of the offense of delivery of cocaine. People v Steele, 150 Mich App 728, 741; 389 NW2d 164 (1986). The distinction is important because the refusal to give a requested instruction on a necessarily included lesser offense when the evidence supports a conviction on the greater charge constitutes error requiring reversal. People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975). Cognate offenses share several elements with and are related to the higher offense but also contain some elements not found in the higher offense. Id., p 387. Unlike necessarily included lesser offenses, instructions on cognate offenses are required only when supported by the evidence. Id., p 390.
The trial judge properly refused the requested instruction because defendant did not dispute the fact that she possessed 536 grams of cocaine. Rather, her defense at trial was insanity or diminished capacity. To convict defendant of the included offense of possession of less than 50 grams of cocaine, the jury would have had to believe that the actual amount of cocaine found in defendant’s car was less than ten percent of what was testified to at trial. Simply put, the evidence did not support the instruction. People v Ora Jones, supra.
Defendant’s claim that the trial judge erred in denying her request to instruct the jury on the misdemeanor offense of unlawful use of cocaine, CJI 12:4:01, fails for similar reasons. The judge declined to give the requested instruction because he found that there was no dispute that the defendant was in fact in possession of cocaine for her own use. This was not error.
In People v Stephens, 416 Mich 252; 330 NW2d 675 (1982), our Supreme Court modified its decision in People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), reh den 396 Mich 976 (1976), which prohibited misdemeanor lesser-included and cognate instructions in cases where the defendant was charged with a felony punishable by in excess of two years imprisonment. Instead, the Court ruled, a misdemeanor instruction was permissible if the following conditions were met: (1) there must be a proper request; (2) there must be an appropriate relationship between the charged offense and the requested misdemeanor; (3) the requested misdemeanor instruction must be supported by a rational view of the evidence adduced at trial; (4) if the prosecutor requests the instruction, the defendant must have adequate notice of it; and (5) requested instructions must not result in undue confusion or some other injustice. In this case it is the third condition that defendant cannot meet. As noted in Stephens, supra, pp 262-263:
The third condition is that the requested misdemeanor must be supported by a rational view of the evidence adduced at trial. This means that not only must there be some evidence which would justify conviction of a lesser offense, but that "proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.”
All of the elements of possession of cocaine were admitted during defendant’s testimony. On the facts in this case, an instruction on use was not supported by the evidence. It is true that defendant was charged with the offense of delivery of cocaine and that, if only presented with delivery or use instructions, the jury could have found defendant innocent of the former offense. However, this fact does not require a use instruction since defendant virtually admitted all of the elements of possession during her testimony.
On the present facts, to only look at the charged offense and requested misdemeanor instruction without considering the other lesser-included offense that was to be given, i.e., possession, would unnecessarily penalize the prosecutor for risking a charge on the higher offense, delivery, when a possession conviction was virtually a certainty. Stated otherwise, a misdemeanor instruction should not be required when there is no dispute as to the elements separating the misdemeanor from the felony on which the jury is to be instructed. Since the judge instructed the jury on the offense of possession of cocaine and since there was no dispute as to the element separating the offense of possession from that of use, that is, that defendant possessed cocaine, the judge properly refused defendant’s requested instruction on use of a controlled substance.
We also disagree with defendant’s contention that, in sentencing her to a twenty- to thirty-year term of imprisonment, the judge erred in believing that he had no discretion in imposing the maximum sentence of thirty years. MCL 769.9(3); MSA 28.1081(3) provides:
In cases involving a major controlled substance offense for which the court is directed by law to impose a sentence which cannot be less than a specified term of years nor more than a specified term of years, the court in imposing the sentence shall fix the length of both the minimum and maximum sentence within those specified limits, in terms of years or fraction thereof, and the sentence so imposed shall be considered an indeterminate sentence. [Emphasis added.]
In People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), our Supreme Court held that, in imposing an indeterminate sentence, the minimum sentence may not exceed two-thirds of the maximum sentence. To hold otherwise, the Court held, would frustrate the purpose of indeterminate sentencing. 387 Mich 689-690. In People v Stevens, 138 Mich App 438, 443; 360 NW2d 216 (1984), this Court held, pursuant to MCL 769.10; MSA 28.1082, "that the sentences of [defendants] convicted as habitual offenders are to be indeterminate as that term was defined in Tanner ” Since the language of MCL 769.10; MSA 28.1082 is virtually identical to MCL 769.9(3); MSA 28.1081(3), and since the statute under which defendant was sentenced imposed a mandatory twenty-year minimum sentence, the trial judge had no discretion but to impose a thirty-year maximum sentence in order to comply with Tanner.
Defendant recognizes MCL 769.9(3); MSA 28.1081(3) but argues the following language from Tanner is controlling:
[Our] holding has no application to sentencing under statutes by which the only punishment prescribed is imprisonment for life, or those providing for a mandatory minimum. [387 Mich 690. See, MCL 769.9; MSA 28.1081.]
Defendant also distinguishes People v Stevens, supra, on its facts, arguing that the two-thirds rule is only applicable to those cases in which it works to the benefit of a defendant. In Stevens, this Court remanded for resentencing, finding defendant’s five- to six-year term violated Tanner’s two-thirds rule. Finally, defendant cites People v Francisco Perez, 417 Mich 1100.21 (1983), a memorandum opinion in which our Supreme Court stated:
Pursuant to GCR 1963, 853.2(4), in lieu of grant ing leave to appeal, the case is remanded on September 21, 1983, to the Saginaw Circuit Court for resentencing. Under MCL 769.9(3); MSA 28.1081(3), the statutory minimum and maximum sentences for major controlled substances offenses are not mandatory except insofar as they establish the outer limits within which a sentence must be fixed. In all other respects, relief is denied. [Emphasis added.]
Defendant’s authorities are not controlling. First, after Tanner was released, MCL 769.9; MSA 28.1081 was amended to add the third subsection. Since the Legislature had the benefit of the Tanner opinion at the time it enacted the amendment, the amendment is controlling. Second, defendant has cited no authority in support of her contention that indeterminate sentencing applies only when it would benefit a defendant. The rationale behind Tanner is the same regardless of whether indeterminate sentencing is a benefit or a detriment to a defendant.
Moreover, People v Perez is distinguishable. There, defendant pled guilty to possession with intent to deliver more than fifty grams of heroin and was sentenced to from ten- to twenty-years imprisonment (People v Perez, unpublished memorandum opinion of the Court of Appeals, decided December 1, 1982 [Docket No. 58583]). Thus, the sentencing judge could have imposed any sentence within the ten- to twenty-year range, provided the sentence complied with the Tanner two-third rule.
In the present case the situation is different, since the penalty imposed by law for defendant’s conviction, twenty to thirty years imprisonment, is also in strict compliance with Tanner. Any other sentence in the twenty- to thirty-year range would violate Tanner. Defendant’s argument to the contrary is without merit.
Finally, defendant argues that her sentence constitutes cruel and unusual punishment. However, this Court has consistently ruled that the mandatory sentencing provisions of MCL 333.7403; MSA 14.15(7403) are not unconstitutional. People v Tate, 134 Mich App 682, 693; 352 NW2d 297 (1984); People v Harman, 124 Mich App 93, 98-100; 333 NW2d 591 (1983), lv den 417 Mich 1100.45 (1983); People v Kaigler, 116 Mich App 567, 572-573; 323 NW2d 486 (1982). Defendant’s lack of prior convictions notwithstanding, her sentence does not amount to cruel or unusual punishment. Defendant’s conviction and sentence is affirmed.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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Per Curiam.
Plaintiff, individually and as conservator of the estates of Alneia Rounds and Mar-ieo Crouthers, minors, appeals as of right from a circuit court order denying her motion to vacate or modify an arbitration award.
Plaintiff, Rounds and Crouthers (collectively referred to as claimants) were injured by an uninsured motorist in an automobile accident on February 2, 1984. They filed a claim under the uninsured motorist clause of plaintiff’s insurance policy with defendant. An arbitration hearing was held on May 24, 1985. A split arbitration panel denied claimants compensation for noneconomic loss, MCL 500.3135; MSA 24.13135, because they failed to meet the threshold of serious impairment of body function. The circuit court refused to vacate the arbitration decision.
Plaintiff argues that the arbitrators exceeded their powers by requiring claimants to make a threshold showing of a serious impairment of a body function, under MCL 500.3135(1); MSA 24.13135(1), in order to recover for noneconomic loss caused by an uninsured motorist. Plaintiff argues that the award should have been vacated pursuant to GCR 1963, 769.9(l)(c). There is presently a split of authority on this issue in this Court. Compare Caplan v DAIIE, 102 Mich App 354; 301 NW2d 471 (1980) (insured must make threshold showing of a serious impairment of a body function to recover for noneconomic loss under uninsured motorist insurance provision), with Jones v DAIIE, 124 Mich App 363; 335 NW2d 39 (1982), lv den 418 Mich 878 (1983), and Stephenson v Associated General Ins Co, 148 Mich App 1; 384 NW2d 62 (1985), consideration of conflict declined 424 Mich 1206 (1986) (D. E. Holbrook, Jr., J., dissenting) (insured need not prove serious impairment to recover for noneconomic loss under uninsured motorist insurance).
In DAIIE v Gavin, 416 Mich 407, 443; 331 NW2d 418 (1982), the Supreme Court held that an appellate court has the power to set aside an arbitration award if "[t]he arbitrators through an error in law have been led to a wrong conclusion, and that, but for such error, a substantially different award must have been made.” Since there is presently conflicting authority in this Court on the issue presented to the arbitrators, we cannot conclude that the arbitrators reached a wrong conclusion in requiring claimants to make a threshold showing of serious impairment of a body function. See DAIIE v Neequaye, 99 Mich App 187; 297 NW2d 602 (1980).
Affirmed. | [
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Per Curiam.
This is a consolidated appeal of a products liability action filed in the Wayne Circuit Court against the manufacturers of all the different products Clarence Stinnett, hereinafter plaintiff, claims to have been exposed to during his employment at Ford Motor Company (his wife’s claim is one for loss of consortium). In a motion brought by defendant Tool Chemical Company, and joined in by the other defendants, summary disposition was requested based upon the statute of limitations. MCR 2.116(C)(7). The trial judge denied the motion. Defendant Tool, in Docket No. 86587, and the remaining defendants, in Docket No. 86586, then filed applications for leave to appeal, which were granted. At the same time, this Court consolidated the appeals.
In his complaint, filed on August 31, 1983, plaintiff alleges to have suffered lung damage during his employment with Ford due to exposure to plastics and other chemicals manufactured by defendants. Plaintiff was hired by Ford as a plastics specialist at Ford’s design center in February, 1977. Plaintiff’s last day of employment with Ford was July 31, 1980.
While at Ford, plaintiff, who said he did not have any previous breathing problems, went to his family doctor, Dr. Conrad Pearl, D.O., on March 7, 1980, complaining of "slight stomach problems, coughing, wheezing, and shortness of breath.” While plaintiff thought he had the flu, Dr. Pearl made a nonspecific finding of sinusitus/bronchitis in a report dated March 13, 1980, with an expected recovery in seven to ten days. This report specifically indicated this condition was not related to plaintiff’s employment. On March 25, 1980, Dr. Pearl noted that plaintiff’s condition had improved and he could return to work.
While initially feeling some relief, plaintiff testi fied that his breathing problems continued to worsen until they caused him to terminate his employment with Ford on July 31, 1980. Plaintiff returned to Dr. Pearl on August 1 and 5, 1980. At this time chest x-rays were taken and they showed moderate infiltrates, compatible with bilateral interstitial pneumonitis.
While plaintiff said that Dr. Pearl could not diagnose his condition and did not tell plaintiff he was suffering from any type of lung disease, plaintiff testified at his deposition:
Q. Going back to the time of late July, at any time before you quit Ford Motor Company, did Dr. Pearl express to you the opinion that your lung problems were caused by chemicals on the job?
A. Dr. Pearl asked me what type—in August he asked me what type of work I did, what type of materials that I worked with.
Q. Would this be the period that you visited Dr. Pearl around August 4th or 5th, 1980?
A. Yes, sir.
Q. Did he express to you the opinion at that time that your lung problems were caused by chemicals on the job?
A. He thought they may be.
In the records of Dr. Pearl, there is an entry, dated August 19, 1980, reflecting chronic lung congestion, and that it is "probably job related.”
After plaintiff’s second visit to Dr. Pearl in August, plaintiff was referred to a specialist, Dr. Hecker, whom plaintiff saw in the middle of August, 1980. As to this visit, plaintiff testified:
Q. Did there come a time when he referred you to a specialist for lungs?
A. Yes, sir.
Q. Who is this individual, sir?
A. I don’t remember his name. I only saw Mm once or twice.
Q. Would that also be in early August, 1980?
A. Yes, sir, or mid-August, somewhere to that.
Q. This individual expressed to you the opinion that your lung problems were caused by chemical [sic] on the job?
A. He thought they may.
Plaintiff also testified as to when he first thought his lung problems might be caused by the exposure to chemicals on his job, saying:
Q. When you did first become — come to the belief that your lung problems were caused by chemical exposures on the job?
(Mr. Citrin) Irrelevant.
A. When they started to mention the fact of the materials that I worked with.
Q. This would be your earliest conversation with Dr. Pearl on August 4th or 5th, 1980?
A. As to—
Q. As to when you came to the belief that the chemicals might be causing your lung problems?
A. Yes, sir.
After still not obtaining any relief for his breathing difficulties, plaintiff began treatment with a pulmonary specialist, Dr. Joseph Lynch, in early November, 1980. After treatment with Dr. Lynch, plaintiffs condition was specifically diagnosed as alveolar proteinosis and plaintiff received proper treatment.
As noted above, plaintiff filed his complaint on August 31, 1983. Defendants moved for summary disposition, claiming that the statute of limitations had run. MCL 600.5805(1),(9) and 600.5827; MSA 27A.5805(1),(9) and 27A.5827. MCR 2.116(C)(7). The trial court denied defendants’ motion stating:
I don’t know that the diagnosis has to be correct. I’m not saying that. But what I am saying is he has to be informed by a physician that there is a diagnosis of a work-related injury and not something speculative. It’s like going to the doctor saying it may be work related or probably work related, but I don’t know, we’ll have to check it out.
The court also applied the so-called discovery rule in determining when the statute of limitations began to run.
The first issue in this case is when the statute of limitations begins to run as to a product liability claim when the plaintiff develops a latent disease. Some panels of this Court have held that in such cases a plaintiff’s claim accrues and thé statute of limitations begins to run when the plaintiff discovers or should have discovered the claim. Furby v Raymark Industries, Inc, 154 Mich App 339; 397 NW2d 303 (1986); Cullender v BASF Wyandotte Corp, 146 Mich App 423; 381 NW2d 737 (1985); Bonney v The Upjohn Co, 129 Mich App 18; 342 NW2d 551 (1983), lv den 419 Mich 868 (1984). Another panel of this Court held that a plaintiff’s cause of action accrues when the alleged wrongful act occurred, regardless of when plaintiff’s disease was discovered. Larson v Johns-Manville Sales Corp, 140 Mich App 254; 365 NW2d 194 (1985), aff'd in part and rev’d in part 427 Mich 301; 399 NW2d 1 (1986). In Larson, supra, the Michigan Supreme Court reversed this Court and held:
[T]he cause of action for asbestosis accrues in accordance with the "discovery rule,” i.e., from the time the claimant knows or should have known of the injury, rather than at the time of the exposure to asbestos or at the time of diagnosable injury. [Larson, supra, pp 304-305. Emphasis supplied.]
In so ruling, the Court noted that the policies behind the statute of limitations (i.e., encouraging plaintiffs to pursue claims diligently and protecting defendants from stale or fraudulent claims) were better served under a discovery rule to determine accrual dates "in these product liability cases.” Id., p 310. Although some may argue that the discovery rule applied by the Court should be limited to asbestos cases, we believe that the rationale applied by the Court extends to latent occupational diseases in products liability cases such as the one involved here. Accordingly, we would affirm the trial court’s decision to apply the discovery rule to plaintiffs cause of action.
Nonetheless, we would reverse the trial court’s decision because we believe that, given plaintiffs own unequivocal deposition testimony, plaintiff knew that he had a lung problem and he believed that the problem was caused by the chemicals he had been exposed to at work. Larson, supra, pp 304-305; Blana v Spezia, 155 Mich App 348; 399 NW2d 511 (1986). Compare Furby, supra.
Reversed. | [
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Sawyer, J.
Plaintiffs decedent died as the result of a self-inflicted gunshot wound to the head on October 31, 1983, three days after he was released from the Lafayette Clinic. The clinic is run by defendant Department of Mental Health. Thereafter, plaintiff, decedent’s wife, filed the instant action against defendants. Plaintiffs complaint sounded in contract, alleging that defendants breached their contract with the decedent to provide appropriate care and treatment.
Defendants moved for summary disposition under MCR 2.116(C)(10), alleging that there was no genuine issue of material fact. Following a hear ing, the trial court granted defendants’ motion. Plaintiff now appeals and we affirm.
Plaintiff argues that the admission application signed by the decedent constituted an implied agreement between defendants and the decedent to provide appropriate care and treatment for the decedent. As with any other contract, an implied contract must satisfy the elements of mutual assent and consideration. This Court discussed the elements of an implied contract in Lowery v Dep’t of Corrections, 146 Mich App 342, 359; 380 NW2d 99 (1985):
[A] contract based on implication must still satisfy the elements of mutual assent and consideration, Spruytte v Dep’t of Corrections, 82 Mich App 145; 266 NW2d 482 (1978). In Spruytte, the Court found that no implied bailment contract could be found to exist because (1) there was no mutual assent since the procedure for bailment of property upon incarceration was required as an aspect of prison management and control, and (2) there could be no finding of consideration since defendant was performing a preexisting duty.
Thus, if defendants had a preexisting duty to provide the decedent with treatment, there can be no consideration for plaintiff’s alleged contract and, therefore, no contract. MCL 330.1810; MSA 14.800(810) establishes an obligation for defendants to provide services to all persons in need of mental health services, regardless of their ability to pay. Therefore, defendants had a preexisting duty to provide the decedent with mental health services. Accordingly, plaintiffs alleged contract was not supported by consideration. Thus, the trial court correctly granted summary disposition on plaintiffs claim.
This case does, however, illustrate the difficulty faced by bench and bar in distinguishing between those cases in which there is a viable contract claim in addition to a tort claim from those cases in which there is only a tort claim. This distinction is particularly important where, as here, the tort claim is precluded by governmental immunity and the plaintiffs ability to recover is dependent on the viability of the contract claim.
The Supreme Court, in Rocco v Dep’t of Mental Health, a companion case to Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), specifically recognized that, in an appropriate case, a plaintiff may successfully plead contract in avoidance of governmental immunity:
We recognize that plaintiffs have and will attempt to avoid § 7 of the governmental immunity act by basing their causes of action on theories other than tort. Trial and appellate courts are routinely faced with the task of determining whether the essential elements of a particular cause of action have been properly pleaded and proved. If a plaintiff successfully pleads and establishes a non-tort cause of action, § 7 will not bar recovery simply because the underlying facts could have also established a tort cause of action. [Ross, supra at 647-648.]
Clearly, a specific factual scenario may support both tort and contract claims. See and compare Hawkins v McGee, 84 NH 114; 146 A 641 (1929). However, just because there is a tort claim does not mean that there is automatically a contract claim. By the same token, however, a particular case which appears to be primarily one which sounds in tort may have, lurking beneath the facts, a contract action waiting to be pled. Once we dispose of the tort claim by applying the govern mental immunity doctrine, we may ignore the tort aspect of the case and concentrate on whether the facts also support a contract claim.
While the pleading of a breach of contract may be sufficient to survive summary disposition for failure to state a claim, not every tort case has the necessary facts to establish a breach of contract. The instant case is such a situation. Because of the failure of consideration, as discussed above, there is no enforceable contract. It was, and is, merely a tort case.
Because of our resolution of the above issue, it is unnecessary to consider plaintiffs remaining issue, whether defendants breached the alleged contract by prematurely discharging the decedent.
Affirmed. No costs.
MCR 2.116(C)(8). Indeed, this is why plaintiffs reliance on Rocco, supra, is misplaced. In Rocco, summary disposition was granted for failure to state a claim, which both this Court and the Supreme Court reversed. In the case at bar, since summary disposition was granted for no genuine issue of material fact, we look beyond plaintiffs pleadings to determine whether, when looking at the facts in the light most favorable to plaintiff, there are facts to support a contract claim. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). | [
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Mackenzie, J.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2X1), second-degree criminal sexual conduct, MCL 750.520c(l); MSA 28.788(3)(1), breaking and entering an' occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and unlawfully driving away a motor vehicle, MCL 750.413; MSA 28.645. He was sentenced to imprisonment for from 25 to 150 years, from 10 to 15 years, from 10 to 15 years, and from 3 to 5 years for the respective convictions. Defendant now appeals as of right and we affirm.
Defendant’s convictions arose out of an October 19, 1983, incident at the residence of complainant. The victim testified that she stopped home on her way to a business appointment at approximately 5:20 p.m. Defendant was standing in her living room. A struggle ensued and defendant put a knife up to her throat. Defendant asked what time the victim’s husband, "Ron,” got home and then placed a jacket over her face. He proceeded to place his finger or fingers in her vagina and to attempt, unsuccessfully, to insert his penis into her vagina. Defendant then took the keys to the car the victim had been driving and drove away.
The Oak Park police inspected the victim’s home, inventoried missing objects and collected fingerprint evidence. The first-floor nursery window, where defendant had apparently entered, was damaged. The cords of both telephones in the house had been removed. A camera and flash, the victim’s briefcase and wallet, her eyeglasses, a gold chain and a tan pair of her husband’s shoes were missing. A latent print taken from a metal box in the den matched defendant’s palm print.
Defendant’s mother, Winnie Dixon, was called as a prosecution witness. She testified that she found a pair of tan shoes, a briefcase and a set of keys in defendant’s room. These items were turned over to the police and were identified as objects missing from the victim’s house. According to Mrs. Dixon, defendant told her that he had purchased the shoes from a friend. He also told her that a second person was involved in the incident.
On appeal, defendant urges this Court to recognize a parent-child testimonial privilege and hold that Winnie Dixon was barred from testifying against defendant at his trial. The issue is one of first impression in this state.
In recent years, the subject of establishing a parent-child testimonial privilege has received considerable scholarly attention. See Coburn, Child-parent communications: Spare the privilege and spoil the child, 74 Dick L R 599 (1969); Stanton, Child-parent privilege for conñdential communications: An examination and proposal, 16 Fam L Q 1 (1982); Comment, From the mouths of babes: Does the constitutional right of privacy mandate a parent-child privilege?, 1978 BYU L R 1002 (1978); Comment, The child-parent privilege: A proposal, 47 Fordham L R 771 (1979); Comment, Conñden-tial communication between parent and child: A constitutional right, 16 San Diego L R 811 (1979); Note, Recognition of a parent-child testimonial privilege, 23 St Louis U L J 676 (1979); Note, Questioning the recognition of a parent-child testimonial privilege, 45 Albany L R 142 (1980); Note, Parent-child loyalty and testimonial privilege, 100 Harv L R 910 (1987); Comment, Parent-child testimonial privilege: An absolute right or an absolute privilege?, 11 U Dayton L R 709 (1986); Comment, A parent-child testimonial privilege: Its present existence, whether it should exist, and to what extent, 13 Cap U L R 555 (1984); Kraft, The parent-child testimonial privilege: Who’s minding the kids?, 18 Fam L Q 505 (1985); Note, The judicial development of the parent-child testimonial privilege: Too big for its britches?, 26 Wm & Mary L R 145 (1984); Comment, Underprivileged communications: The rationale for a parent-child privilege, 36 Southwestern L J 1175 (1983); Kandoian, The parent-child privilege and the parent-child crime: Observations on State v Delong and In re Agosto, 36 Me L R 59 (1984); Note, Parent-child testimonial privilege: Preserving and protecting the fundamental right to family privacy, 52 Cinn L R 901 (1983).
The parent-child testimonial privilege is currently recognized by the federal district court of Nevada and by certain state courts in New York. In Nevada, the privilege was recognized in In re Agosto, 553 F Supp 1298, 1325 (D Nev, 1983), holding the privilege encompasses not only confidential communications, but bars any testimony by a parent against a child, or vice versa, unless the witness waives the privilege. In New York, the privilege is less extensive, barring only confidential communications made by a child of any age to his parent, or vice versa. See People v Fitzgerald, 101 Misc 2d 712; 422 NYS2d 309 (1979), and In re A & M, 61 AD2d 426; 403 NYS2d 375 (1978). But see also In the Matter of Harry R, 134 Misc 2d 404; 510 NYS2d 792 (1986). At least two jurisdictions have enacted some form of parent-child privilege by statute. See Idaho Code § 9-203(7) (Supp 1987) and Minnesota Statutes § 595.02(l)(i)
The vast majority of jurisdictions have rejected the adoption of the parent-child testimonial privilege, however. See In re Terry W, 59 Cal App 3d 745; 130 Cal Rptr 913 (1976); Marshall v Anderson, 459 So 2d 384 (Fla App, 1984); People v Sanders, 99 Ill 2d 262; 457 NE2d 1241 (1983); Cissna v State, 170 Ind App 437; 352 NE2d 793 (1976); State v Gilroy, 313 NW2d 513 (Iowa, 1981); State v Delong, 456 A2d 877 (Me, 1983); Three Juveniles v Commonwealth, 390 Mass 357; 455 NE2d 1203 (1983), cert den 465 US 1068; 104 S Ct 1421; 79 L Ed 2d 746 (1984); Cabello v State, 471 So 2d 332 (Miss, 1985); Missouri v Bruce, 655 SW2d 66 (Mo App, 1983); In the Matter of Gibson, 79 Ore App 154; 718 P2d 759 (1986); In re Frances J, 456 A2d 1174 (RI, 1983); DeLeon v State, 684 SW2d 778 (Tex App, 1984); In re Grand Jury Subpoena of Santarelli, 740 F2d 816 (CA 11, 1984); United States v Jones, 683 F2d 817 (CA 4, 1982); In re Grand Jury Proceedings (Starr), 647 F2d 511 (CA 5, 1981); United States v Penn, 647 F2d 876 (CA 9, 1980); United States v Davies, 768 F2d 893 (CA 7, 1985), cert den — US —; 106 S Ct 533; 88 L Ed 2d 464 (1985).
We similarly decline to adopt a parent-child testimonial privilege. Initially, we note that the exclusion of evidence by evidentiary privileges is largely governed by statute. See MRE 101, Committee Note. Accordingly, we believe that recognition of a new privilege is best deferred to the Legislature.
Perhaps more fundamentally, however, we premise our decision on the notion that "all privileges . . . are exceptional, and are therefore to be [discouraged]. . . . The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges.” 8 Wigmore, Evidence (McNaughton rev, 1961), § 2192, p 73. As privileges do not further the ascertainment of truth but, rather, permit the concealment of relevant, reliable information, courts have been reluctant to expand or create new privileges in the absence of compelling reasons. In re Dinnan, 661 F2d 426, 429-430 (CA 5, 1981), cert den 457 US 1106 (1982). In addressing the issue of the judicial establishment of new privileges, the United States Supreme Court has stated that "exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v Nixon, 418 US 683, 710; 94 S Ct 3090; 41 L Ed 2d 1039 (1974). The exclusion of relevant evidence by the creation of a privilege is warranted only if the resulting public good transcends the normally predominant principle of using all rational means for ascertaining truth. Trammel v United States, 445 US 40, 50; 100 S Ct 906; 63 L Ed 2d 186 (1980). Applying these principles, we are not persuaded that the exclusion of a parent’s or child’s testimony would promote "sufficiently important interests” so as "to outweigh the need for probative evidence in the administration of criminal justice.” Trammel, supra, 445 US 50-51. In the circumstances of this case, the state’s interest in obtaining all relevant information concerning the sexual assault and robbery of a woman in her own home must predominate over generalizations favoring the preservation of the American family through barring the testimony of a parent or child. See Three Juveniles, supra, 390 Mass 364.
Defendant’s remaining arguments require only brief discussion. Defendant claims that Mrs. Dixon’s testimony concerning her identification to police officer Mary Timmons of the items found in defendant’s room constituted inadmissible hearsay. Assuming without deciding that the testimony constituted hearsay evidence, its admission constituted harmless error. The substance of the testimony was cumulative of that given by Officer Timmons. See People v Prophet, 101 Mich App 618, 624; 300 NW2d 652 (1980).
We also reject defendant’s claim that the trial court erred when it allowed Officer Timmons to testify about the victim’s identification of defendant at a corporeal lineup. Defendant claims that this testimony constituted inadmissible hearsay under MRE 801(d)(1). To the extent that Timmons testified that the victim made her identification "immediately,” defendant’s hearsay challenge clearly fails; that testimony did not repeat an out-of-court statement. As regards the officer’s repeating the actual words of the victim or reporting her assertive conduct, there is a split of authority in this Court. Some panels have held that while MRE 801(d)(1) allows the declarant (in this case, the victim) to testify as to his or her prior identification of a defendant, it does not allow a third , party to testify about the declarant’s identification of defendant; however, it does allow the third party to testify about the facts and circumstances surrounding that prior identification. People v Turner, 120 Mich App 23, 38; 328. NW2d 5 (1982), lv den 417 Mich 1064 (1983); People v Price, 112 Mich App 791, 801-803; 317 NW2d 249 (1982), lv den 414 Mich 946 (1982); People v Mock, 108 Mich App 384, 387-388; 310 NW2d 390 (1981); People v Prophet, supra, pp 620-624; People v Horton, 98 Mich App 62, 71; 296 NW2d 184 (1980); People v Hoerl, 88 Mich App 693, 701-702, n 5; 278 NW2d 721 (1979); People v Washington, 84 Mich App 750, 755-756; 270 NW2d 511 (1978). Other panels have held that MRE 801(d)(1) allows a third party to testify concerning an identification of a defendant at a lineup. People v Beam, 125 Mich App 289; 335 NW2d 684 (1983), lv den 418 Mich 858 (1983), reh den 418 Mich 858 (1934); People v McConnell, 124 Mich App 672, 679-680; 335 NW2d 226 (1983); People v Turner, 116 Mich App 421; 323 NW2d 425 (1982); People v Adams, 92 Mich App 619; 285 NW2d 392 (1979), lv den 408 Mich 890 (1980). Assuming, arguendo, that defendant correctly argues that the former line of cases is correct, we find that the officer’s testimony was cumulative of the declarant’s testimony. Therefore, its admission was harmless. Turner, supra; Price, supra; Mock, supra; Prophet, supra; Washington, supra.
Defendant contends that the trial court erred in instructing the jury concerning impeachment by a prior inconsistent statement. The court instructed the jury in pertinent part:
During the course of this trial there has been some evidence tending to show that one of the witnesses [the victim] made an earlier statement that was inconsistent with testimony made during the course of the trial. The prior inconsistent statement was regarding who removed her panty hose. This statement is not evidence which you can consider to satisfy or prove any of the elements of the crime charged since it was not made under oath during the course of this trial.
Defendant maintains that this instruction prejudi-cially removed from the jury’s consideration the question whether there was an inconsistency in the victim’s trial testimony and her preliminary examination testimony concerning defendant’s attempt to insert his penis into her vagina. Defen dant’s argument fails for the reason that the record does not support a finding of the existence of a prior inconsistent statement on this point. The victim was unequivocal at both the preliminary examination and at trial that it was defendant’s penis which she felt him try to insert into her vagina. The instruction was proper as given.
Defendant contends that the trial court erred by refusing to give a requested instruction on the cognate lesser included offense of receiving and concealing stolen property worth more than $100, as it applied to Count iii of the information, charging breaking and entering an occupied dwelling with intent to commit larceny. Where the evidence at trial supports a conviction of a cognate lesser offense, and the defendant requests an instruction on the lesser offense, failure to honor the request constitutes error requiring reversal. People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), reh den 396 Mich 976 (1976). Defendant maintains that because there was evidence to support a conviction for the lesser offense of receiving and concealing stolen property worth more than $100 his breaking and entering conviction must be reversed. We disagree. The record is silent as to the value of the shoes, briefcase, camera, wallet or keys. Thus, only the stolen automobile could support an instruction on receiving and concealing. As plaintiff correctly points out, however, only if the automobile was inside the victim’s home could the charge of breaking and entering include the car. The instruction was properly denied.
Finally, defendant challenges his sentence of from 25 to 150 years for first-degree CSC. Defendant argues that the sentence imposed exceeded the sentencing guidelines and should shock the conscience of this Court. The guidelines range for defendant’s esc conviction was apparently from 8 to 15 years. In appropriate cases, however, it is within the sentencing judge’s discretion to exceed the guidelines, People v Kenneth Johnson, 144 Mich App 125, 136-137; 373 NW2d 263 (1985), lv den 424 Mich 854 (1985); People v Butts, 144 Mich App 637; 376 NW2d 176 (1985), lv den 424 Mich 860 (1985). The trial judge’s discretion is limited by the standard set forth in People v Coles, 417 Mich 523; 339 NW2d 440 (1983), that the sentence imposed must not shock the conscience of this Court.
Defendant’s sentence does not shock our conscience. The victim was sexually assaulted and robbed in her home. The trial court properly observed the serious nature of this crime and the fact that the victim suffered a great deal of emotional upheaval as a result. We summarily reject defendant’s suggestions that the assault was somehow less abhorrent because it was accomplished by penetration with his fingers rather than his sexual organ, because it "lasted for only a period of three to four minutes,” or because her clothing was not cut. We also reject defendant’s contention that the court relied on allegations in the presentence report of a prior rape for which defendant was never formally charged. Defendant did not object to the information in the report at sentencing, and there is no indication in the record that the court relied on the challenged information in rendering his sentence. We find no abuse of discretion.
Affirmed. | [
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Weaver, J.
Defendant railroad appeals as of right from a jury verdict in favor of plaintiffs. We affirm.
This action arose on January 19, 1982, when the car of plaintiff John Wheeler was struck by a train at the railroad crossing on Orchard Lake Road in Keego Harbor, Michigan, and plaintiff was seriously injured. At trial, plaintiff testified that he had been traveling at approximately twenty-five miles per hour as he approached the crossing, that he did not hear any bells or train whistles nor see any flasher signals, and that he did not see the train until a split second before impact. Additional testimony indicated disagreement as to plaintiff’s speed and as to whether the crossing signals were working and the train whistle or bells were sounding.
The jury awarded $477,000 in damages to plaintiff on his negligence claim and $50,000 to plaintiff’s wife on her loss of consortium claim, but found plaintiff to be thirty-five percent at fault, thus proportionately reducing the total damage award. Subsequent to denial of its motion for a new trial, defendant railroad appeals as of right, arguing (1) trial court error in allowing testimony of prior crossing signal malfunctions; (2) trial court error in instructing the jury; and (3) denial of a fair and impartial trial due to misconduct of plaintiffs’ counsel.
i
The court allowed into evidence a partial reading of the deposition of Theodore Fitch, signal supervisor of defendant railroad, wherein Mr. Fitch was asked if he knew of prior malfunctions at the Orchard Lake Road crossing. Defendant objected to this reading, arguing that a proper foundation had not been laid.
Defendant also objected to introduction of testimony by Janet Carey, who stated that she had reported signal malfunctions at the Orchard Lake Road crossing to defendant railroad as many as twenty-four times prior to the accident on January 19, 1982. She also stated that on January 19, 1982, she reported another such malfunction.
Sylvan Lake Police Sergeant James Oliver, the officer present at the scene of the accident, further testified that he had also reported malfunctions of the crossing lights or bells at the Orchard Lake Road crossing at least twenty-four times before the accident on January 19, 1982.
Defendant argues that the trial court should not have allowed witnesses to testify regarding prior signal malfunctions because there was insufficient foundational proof of similarity and there was no testimony as to the dates or nature of the malfunctions.
We disagree with defendant’s argument because we believe that there was sufficient foundation to admit testimony of prior malfunctions. The testimony concerned malfunctions involving active flashers when no train was present, and inactive flashers when a train was present. The testimony also concerned malfunctions at the same crossing and on the very day of the accident. Therefore the testimony was relevant to show that defendant had notice of a dangerous condition. Sullivan v Detroit & Windsor Ferry Co, 255 Mich 575, 578; 238 NW 221 (1931). It was also relevant to prove that a dangerous condition in fact existed, i.e., that the signals were malfunctioning, at the time of the accident. Freed v Simon, 370 Mich 473, 475-476; 122 NW2d 813 (1963).
n
Before issuing its initial instructions, the trial court had denied plaintiffs request for Instruction Number 26, but upon reinstruction decided to include it as follows:
In approaching a crossing protected by warning devices, [a traveler] is entitled to place some reliance on the indication of safety which comes from an inactive warning device.
It is a question of fact for the jury to decide whether there was an inactive warning device in this case.
Defendant railroad argues that the instruction was improper because it came after closing argument, thereby depriving defendant of the opportunity to properly address the issue, and because it assumes that the signal devices were not working.
We fail to see how the timing of the instruction could have had the least effect upon defendant’s ability to fairly argue its case. Proper functioning of the signal device was a significant issue throughout trial, and both sides presented testimony as to the condition of the signal device at the time of the accident. As for the instruction itself, jury instructions must be reviewed in their entirety and should not be extracted piecemeal in an effort to justify reversal. Willoughby v Lehrbass, 150 Mich App 319, 336; 388 NW2d 688 (1986). Here, the court’s instruction followed established law. Lockett v Grand Trunk Western R Co, 272 Mich 219, 223, 225; 261 NW 306 (1935). Even had the instruction been erroneous or inadequate, reversal is not mandated unless failure to reverse would be inconsistent with substantial justice. Willoughby, supra at 336. We find no want of substantial justice here; the court accompanied its instruction with the specific reminder that plaintiff still had a continuing duty to rely upon his own observations and ascertain for himself whether a train was in fact approaching.
hi
Finally, defendant railroad argues that misconduct of plaintiffs’ counsel prevented a fair and impartial trial. At trial, defendant properly objected to the alleged misconduct. We must therefore determine whether the comments were untrue and, if so, whether they were harmless or prejudicial. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 103; 330 NW2d 638 (1982).
During opening argument, plaintiffs’ counsel re ferred to an "alleged” court order which required defendant to produce the train’s speed tape. Defendant objected. In later denying defendant’s motion for a mistrial, the court stated that if defendant reminded the court, it would correct the matter when instructing the jury. A review of the record discloses that the court’s instructions made no reference to this decision, but we also find no evidence that defendant ever entered a reminder. Because the record is silent as to the contents of the order, and because defendant did not deem the matter important enough to be remembered, we believe that error, if any, was harmless. Id., n 7.
During rebuttal argument, defendant also objected to use by plaintiffs’ counsel of the term "company men” when referring to defendant’s witnesses and to the statement that defendant never presented testimony by disinterested eyewitnesses who saw the signal flashers. It is true that the term "company men” had a derogatory connotation implying that defendant’s witnesses were biased and therefore untrustworthy. But where, as here, there exists conflicting or contradictory testimony, parties may try to persuade the jury to believe their witnesses and disbelieve witnesses of the adverse party. Id. at 109. Further, reasonable inferences from testimony may be drawn by counsel during closing argument. Wilson v Stilwill, 92 Mich App 227, 231; 284 NW2d 773 (1979), aff'd 411 Mich 587; 309 NW2d 898 (1981). Statements made by counsel in closing argument may not be error if given in response to arguments made by opposing counsel. Stephens v Spiwak, 61 Mich App 647, 651; 233 NW2d 124 (1975), lv den 395 Mich 761 (1975). Viewed in the entire context of closing argument and rebuttal, therefore, we find no error.
Affirmed.
[A] traveler approaching a protected crossing is entitled to place some reliance upon the indication of safety which the silence of the signal implies, and that the degree of care required of one approaching a crossing under such circumstances "is only that which an ordinarily prudent man would use under such circumstances, and not the extreme care that would be required if there were no device there to indicate safety; and that whether proper care has been exercised under such circumstances is ordinarily a jury question.” [Id. at 223.]
In connection with the disputed jury instruction, the trial court stated:
Therefore, while an approaching train must give proper warning, and while the silence of the protective device is an indication to the traveller that no train is appraching [sic], nevertheless, the driver is not thereby relieved of the duty of making due observation but must use his own senses of sight and hearing to ascertain for himself whether a train is in fact approaching. | [
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Per Curiam.
Defendant appeals and plaintiff cross appeals from an order of summary disposition entered by the Oakland Circuit Court on April 30, 1986. The instant suit concerns efforts of plaintiff township to prevent defendants from parking a dump truck in the driveway of their home. Defendants’ residence is located in an r-1a single-family residential district.
Defendants have lived in plaintiff township since 1969 at their current address. Beginning in 1971, defendants began parking a 1967 Ford dump truck, weighing 17,000 pounds, in their driveway. Defendants performed routine maintenance at their residence during the years that the truck had been parked there. One issue on appeal is whether the parking and maintenance of the 1967 vehicle was in violation of Township Ordinance 51, which was in effect prior to 1975. In 1975, Ordinance 51 was repealed and replaced by Ordinance 83. Ordinance 83 limits commercial parking in residential areas to trucks weighing less than 10,000 pounds. In 1975, subsequent to the effective date of Ordinance 83, defendants sold their 1967 Ford dump truck and replaced it with a dump truck weighing 27,000 pounds. Some time in 1977, defendants also began parking a trailer "pup” at their home, which they used in conjunction with the dump truck.
After various other attempts to prevent defendants from parking the dump truck and the pup on their property, plaintiff township instituted the instant complaint in 1985, alleging various claims of nuisance and requesting injunctive relief. Both parties filed motions for summary disposition pursuant to MCR 2.116(0(10). Oral argument was heard on March 24, 1986, at which time the trial court partially granted both motions in an apparent resolution of the entire action. However, the parties could not agree upon the proposed judgment. On April 30, 1986, a hearing was conducted to settle the judgment. After the hearing was conducted, the judgment was entered immediately. It held that Ordinance 51 did not prohibit the parking of the dump truck and thus that defendants possessed the right to continue their prior use, which had become nonconforming after the enactment of Ordinance 83. The judgment also provided that parking of the. newer heavier truck did not constitute an unlawful extension of defendants’ vested, nonconforming use. However, the parking of the trailer pup was enjoined and the hours during which defendants could perform maintenance upon the dump truck were limited. Both parties appeal, raising several issues.
The first issue we address is plaintiff’s contention that the trial court erred by denying plaintiff’s motion for summary disposition on the basis of nuisance per se. Under MCL 125.294; MSA 5.2963(24) a use of land which is in violation of a local ordinance is a nuisance per se. Under MCL 125.286; MSA 5.2963(16), a use which is lawful at the time of the enactment of an ordinance may be continued even if the use is nonconforming under the new ordinance. Plaintiff argues that the parking did not constitute a lawful use under the prior ordinance and thus does not qualify pursuant to MCL 125.286; MSA 5.2963(16) as a lawful, nonconforming use under the current ordinance.
Section 9.2 of Ordinance 51 provided:
In residential zones it shall be illegal to garage or park more than one commercial vehicle larger than a regularly manufactured pickup or panel truck of one and one-half ton capacity per lot, said commercial vehicle must be owned and operated by a member of the family residing on said lot or parcel.
Plaintiff argues that this section does not expressly authorize the parking of defendants’ dump truck, that this provision refers to commercial vehicles and defendants’ truck is an industrial vehicle, that the provision is at least ambiguous, and that consequently the ordinance should be viewed as a whole and construed in a manner so as to effect its overall intent. Plaintiff points to the statement of intent which prefaces the ordinance which states that Ordinance 51 was enacted to encourage a suitable environment for families and to create a neighborhood environment. The provision also provides that "commercial and other uses, tending to be incompatible with the intent, are prohibited.”
For several reasons, we are not persuaded by plaintiff’s argument. While plaintiff contends that § 9.2 of Ordinance 51 should be construed in accor dance with its overall intent, plaintiff admitted in its complaint that the parking of defendants’ truck was not in "technical violation” of Ordinance 51. Moreover, even though the grant of authority is by implication, we find that § 9.2 unambiguously permitted the parking of one commercial vehicle. Plaintiffs assertion that defendants’ truck is an industrial vehicle and not a commercial vehicle is belied by § 5.08.02 of newly enacted Ordinance 83. Section 5.08.02 is the section which plaintiff asserts now expressly prohibits the parking of vehicles such as defendants’ in residential districts. This section employs the term "commercial vehicles” and mentions nothing of "industrial vehicles.” Thus, plaintiff’s position would require us to conclude that the dump truck was an industrial, not commercial, vehicle under former Ordinance 51 but a commercial vehicle under Ordinance 83. There is nothing in either ordinance which would support such inconsistent definitions or indicate that the terms are not to be defined according to their common, everyday usage.
Plaintiff also argues that, even if defendants’ prior use is found to be lawful, defendants’ purchase of a larger truck after the effective date of Ordinance 83 was an unlawful extension of the nonconforming use. Plaintiff points out that defendants’ prior truck had three axles while the current truck has four axles and that the prior truck weighed 17,000 pounds with a weight capacity of 48,000 pounds while the current truck weighs 27,000 pounds with a 57,000-pound capacity.
MCL 125.286(2); MSA 5.2963(16X2) provides in pertinent part:
The township board shall provide in a zoning ordinance for the completion, restoration, reconstruction, extension, or substitution of noncon forming uses upon reasonable terms set forth in the zoning ordinance. In establishing terms for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses different classes of nonconforming uses may be established in the ordinance with different requirements applicable to each class.
In Norton Shores v Carr, 81 Mich App 715, 720; 265 NW2d 802 (1978), lv den 403 Mich 812 (1978), this Court stated:
"It is the law of Michigan that the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use at the time of passage of a valid zoning ordinance.” Dearden v Detroit, 70 Mich App 163, 169; 245 NW2d 700 (1976), Township of White Lake v Lustig, 10 Mich App 665, 674; 160 NW2d 353 (1968).
In Long Island Court Home Owners Ass’n v Methner, 74 Mich App 383, 387; 254 NW2d 57 (1977), this Court stated:
"A 'nonconforming use’ comprehends the physical characteristics, dimensions, or location of a structure as well as the functional use thereof or of the premises on which it is located . . . .” (Footnotes omitted.) 82 Am Jur 2d, Zoning and Planning, § 178, p 685.
In the instant case, while the defendants’ present truck has one more axle and weighs more, it is substantially the same size as the former truck and serves the same purpose. Thus, we agree with the trial court that no unlawful extension occurred.
Turning to defendants’ appeal, defendants argue that the trial court erred in granting summary disposition on the maintenance issue. We agree.
At first, the trial court appeared to find that defendants’ maintenance was a nuisance based solely on the fact that defendants have used an air impact wrench on various occasions. Later, the court enjoined all maintenance except between the hours of 9:00 a.m. and 5:30 p.m.
Plaintiff’s motion for summary disposition was brought on the theory that defendants’ activities were in violation of its ordinance and thus constituted a nuisance per se pursuant to MCL 125.294; MSA 5.2963(24). Ordinance 51 did not prohibit normal maintenance of a legally parked or garaged vehicle. It also expressly allowed for "any use customarily incidental to the permitted principal use.” Thus, it cannot be concluded that Ordinance 51 proscribed the maintenance of defendants’ dump truck.
However, a question remains whether defendants’ activities constitute a nuisance per accidens. Such a determination is a question of fact. See Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959). Accordingly, the question whether defendants’ maintenance constitutes a nuisance per accidens is remanded for trial. On remand, defendants may raise the defenses they pled below, which they have asserted on appeal the trial court failed to consider.
Defendants also argue that the judgment em tered does not conform to the trial court’s ruling from the bench.
A court speaks only through its orders and judgments. Safie Enterprises, Inc v Nationwide Mutual Fire Ins Co, 146 Mich App 483, 491; 381 NW2d 747 (1985). In the instant case, a hearing was held to settle the judgment, the trial court ruled on the issues defendant now raises, and the trial court authorized the entry of judgment. Thus, it is difficult to see how the judgment could not reflect the trial court’s final decision. When multiple claims are before the court, MCR 2.604(B) permits the trial court to modify any form of decision prior to the entry of final judgment. We surmise that defendants’ complaint is not that the trial court failed to adopt a judgment that reflects the court’s ruling, but that the trial court ruled incorrectly on certain matters. The proper method to raise such concerns on appeal is to seek review of the order as written. To the extent that it can be construed that defendants are contesting portions of the final judgment, we will briefly address two of the arguments which still appear relevant in light of our disposition of the prior issues.
.The critical point in vesting a nonconforming use is when a zoning ordinance is enacted. Dingeman Advertising, Inc v Algoma Twp, 393 Mich 89; 223 NW2d 689 (1974). Therefore, defendants’ nonconforming use is for the 1967 Ford truck which they owned at the time Ordinance 83 took effect. Any replacement vehicles defendants purchase in the future, assuming that plaintiff would contest the use of new vehicles, will have to be compared to that standard to determine whether there is an unlawful extension of defendants’ vested use. The trial court correctly noted that defendants’ nonconforming use was for the lighter vehicle.
Defendants also complain that the judgment language could be construed to prevent them from parking two other vehicles at their residence. We disagree. The judgment contains an express proviso that it shall not be construed as precluding activities otherwise permissible under the township ordinance. Ordinance 83 permits the parking of commercial vehicles weighing less than 10,000 pounds, a class under which the other vehicles would fall.
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Sherwood, J.
This record presents for review a case made after judgment upon the findings of law and fact by the circuit judge. The proceedings were summary, to recover the possession of land, before a circuit court commis sioner in tlie county of Kent, under How. Stat. § 8295. The following facts were found by the circuit judge, and no exception is taken thereto: In April, 1880, the plaintiff owned and leased to the defendant for one year the premises in question at an annual rental of $35. At the end of the year the lease was verbally renewed for an indefinite period, but for more than one year, the rent received to be paid annually. Under this agreement the defendant remained in possession over two years, during which time he erected buildings upon the premises, in which he lived and carried on his business, with the knowledge and permission of the plaintiff. In August, 1883, about $95 rent had become due to the plaintiff, and the plaintiff, by híé agent, orally demanded payment thereof of defendant, and the defendant refused to pay, and thereupon the plaintiff gave the defendant the following notice to quit:
“ To James Fairs:
Sir- — You will please take notice that I have elected to terminate the lease of the premises that you now occupy and hold under me, and you are hereby notified to quit and deliver up the quiet and peaceable possession of said premises to me within fourteen days after service on you of this notice. Said premises .being described as Lot number seven (7) Boynton & Judd’s addition, situated in the township of Grand Rapids, in the county of Kent, State of Michigan.
Charles B. Judd,
Per B. C. Girdler,
Agent and Attorney for Charles B. Judd.”
The defendant, on being served with this notice, refused to give up possession of the premises, and fifteen days thereafter the complainant instituted the proceedings had in this case. Possession was awarded the plaintiff by the commissioner, and on the trial of the appeal the circuit judge awarded to him the writ of restitution, holding, as a question of law upon the facts stated, that the notice given was sufficient to terminate the tenancy. This finding of law was excepted to by defendant’s counsel, and raises the only question to be considered upon this record.
Ve think the finding of the circuit judge was correct. The legislation in this State has greatly changed the common-law requirement of the notice to quit to be given by the landlords to tenants of leased premises before restitution can be had. Under the rulings of this Court heretofore made, the defendant was a tenant from year to year, and had he kept up his rent, would have been entitled to a notice to quit, as such, from the landlord, ending with the year. But the defendant failed to pay his rent. The circuit judge finds, as one of the facts in the case, that the defendant not only owed, but that there was due to the plaintiff rent to the amount of $95 (it being the rent for over two years), when the notice to quit was served. The record further shows that the plaintiff asked defendant to pay this rent, and he refused so to do, and thereupon the plaintiff gave the foregoing notice to quit. The verbal demand of payment and the notice to quit were sufficient, and brought the plaintiff’s case within the provisions of How. Stat. § 8295, subd. 2. These views are sustained by the following decisions of this Court. Morrill v. Mackman 24 Mich. 279; McSloy v. Ryan 27 Mich. 110; Coan v. Mole 39 Mich. 454; Moody v. Seaman 46 Mich. 74.
The judgment of the circuit court must be affirmed.
Cooley, C. J. and Campbell, J. concurred. Champlin, J. did not sit in this case.
§8295. ** * The person entitled to any px-emises may recover possession thereof in the manner hereinafter provided, in the following cases :
* -SC* & *Jf
Second. When any rent shall .have become due, on any, such lease or agreement, and the tenant or person in possession shall have neglected or x-efused for seven days after demand of the possession of the premises, unless waived as aforesaid, made in writing, to deliver up possession of the premises or pay the rent so due. | [
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Campbell, J.
These cases all come up on the same question, — whether the statute allowing the State Board of Control to regulate, and the plaintiff to collect, tolls for floating logs through such portions of the Manistee river as plaintiff has cleared and improved so as to facilitate floatage, is valid. There is a further question as to tolls previous to February, 1879. The defendant’s brief gives no very tangible reason why these differ from the rest. We see nothing to authorize any inquiry behind the tolls claimed that has not been practically disposed of by our previous decisions.
The validity of this legislation has been twice sustained by this Court, first in the quo warranto brought by the State on the relation of Benjamin v. Manistee River Improvement Co. 42 Mich. 628, and afterwards in Manistee River Improvement Co. v. Lamport 49 Mich. 442. The decisions in those cases covered all the ground that seems to be covered by this case, but counsel have nevertheless seen fit to raise the same issues, as we suppose for the purpose of review ■elsewhere, and therefore we are called upon to decide the controversy again, although it will not be necessary to repeat what has in our judgment been already sufficiently discussed. We shall content ourselves with a very brief reference to what has been more fully referred to in those cases.
.The two points on which defendant relies are: first, that levying these tolls is depriving defendant of his property without due process of law; and second, that the power given over this stream violates the compact in the Ordinance ■of 1787, which makes the Lakes and their affluents and connecting land portages free to all citizens of the various states, as common highways, without taxes, imposts or duties.
As our own State Constitution is quite as emphatic as the Ordinance or United States Constitution, on these heads, there is no occasion for doing more than making such an explanation as will show the substantial identity of the ■eases.
The statute in question was passed chiefly for the purpose •of enabling streams which were insufficient for lumber float-age by reason of natural difficulties or such other obstructions as had arisen, to be cleared and made available for getting logs to the mills on the lower parts of the same waters or the rivers into which they empty. The statute ¡requires the Board of Control from year to year to adjust the tolls by reference to the supposed amount of business likely to be done. The object of all this is to prevent any ■extortionate charges and to make the tolls come as near a fair price for the use of the improvements as is feasible, a maximum rate being fixed beyond which they cannot be ■charged at all. No tolls are allowed to be charged except for •such parts of the river as are improved, and by such floatables as derive benefit from it. Logs are not tolled for improvements which are not needed for log floatage. And these improvements may include dams to raise the stream and supplying feeders by connecting other waters.
It is difficult to give much force to the argument that deals with log-floatage in a stream that needs improvement to float logs at all, and which is entirely localized within the State, as having much resemblance to navigation in its usual sense. But giving it all the force that is ’claimed for it, there can be no doubt that the object of the Ordinance of 1787 was chiefly, if not entirely, to secure the same rights to nonresidents as should be granted to residents, and to prevent any discriminating burdens. The Constitution of the United States has secured this equality of rights among citizens of different states, and the Constitution of Michigan has secured the common right of passage in all navigable waters. The controversy, therefore, is narrowed down to the inquiry whether the State has a right to provide for improving waters that need improvement, and for allowing tolls to be charged for using the improvements.
The idea that tolls for the actual use of passage over land or water highways can be treated as taxes, and as invasions of private property, does not appear to us tenable. They are not levied on property, or on persons, as their share of any public burden laid on the people, but they are a fixed compensation in lieu of a quantum valet for the use of that which has value and which is actually used to advantage. And the statute contemplates that in all probability, without the facilities rendered by the improvement, much of the property floated would not get down the stream at all. They are collected on the same principle as turnpike tolls, or railway and wharfage charges, which no one has ever supposed were public taxes or taxes at all. Turnpikes and canals are usually open to the use of everybody, on uniform terms, but they are seldom open to use without tolls. In the grants made to this State of lands to build canals and improve streams tolls have been expressly provided for and authorized by Congress. 10 Stat. at L. 35; 13 Stat. at L. 519; Attorney Gen. v. Lake Superior Ship Canal Co. 32 Mich. 233. In both the statutes referred to the waters improved by the St. Mary’s river canal and Portage canal were within the same Ordinance' of 1787, and were parts of our great public waters, and not log-ways. But Congress recognized the propriety of having the cost and current expenses of such improvements paid out of tolls. Under the Constitution of this State there is no way of providing for such cases without the intervention of corporations and tolls, because the State is forbidden to make any public works at its own expense by the express terms of the Constitution.
Reference was made in our former decisions, and need not be repeated, to the recognized power of states to improve their domestic waters where not in conflict with the policy of the general government. It would be a singular state of things if nobody but Congress could improve these local waters, over which, in their natural state, the ordinary vehicles of commerce have little or no occasion or power to pass. And we do not think there is anything, either in the action of Congress, or in the views thus far expressed by the United States judiciary, which in any way opposes the improvement of this river, or the right to demand tolls, and sue for them when not paid by the parties using the improvements.
The judgments must be affirmed with costs.
The other Justices concurred. | [
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Smith, J.
This is a conspiracy case. The defendant, it was charged, was one of a large number who conspired to violate the gaming statutes of this State. (CL 1948, §§ 750.301-750.306, inclusive, and § 750.372 [Stat Ann 1954 Rev §§ 28.533-28.538, inclusive, and § 28.604].) The organization was engaged in the “numbers business.” It consisted of those who recorded the bets (the “writers”), those who collected them on assigned routes (“pickup” men), and substation operators, to whom the pickup-men turned over their collections, in “packages,” as well as other functionaries. The details of the-operation are not necessary to a decision on the questions raised. After these defendants had been “observed by police officers for a period of over a year, from November 28,1949, to December 8,1950, # * * practically daily, * * * with the exception of Sunday,” search warrants were obtained, certain premises raided, gambling paraphernalia seized, and arrests made.
It was the theory of the State that defendant Sobczak was one of the co-owners of the business. Pie was arrested at his home, which was thereupon searched, but no gambling paraphernalia found. After trial by jury he was found guilty on 4 counts of' the indictment and sentenced. He brings his case-to this Court upon several claims of error, one being that the verdict of the jury was against “the great weight of the evidence, there being in fact and law,, no evidence to sustain the verdict.”
We have examined the voluminous record in detail .and find that defendant’s participation in this conspiracy can be summarized by stating that he was ■observed by police officers associating with one Albert Kuzera (another convicted defendant) and ■other named defendants, certainly on 7, and possibly •on 3 additional occasions in the above year of observation. We find little else. The testimony adduced consisted of observations made of defendant’s movements and activities on described dates. Since it is all essentially similar, it will be described in detail only as to illustrative days. Thus we consider the events of May 16, 1950. On this date Albert Kuzera drove to the defendant’s home and went inside. He remained 40 minutes. When he and defendant emerged, the latter had some papers in his hand. They were not concealed. Were they gambling paraphernalia of some kind? Were they bowling contracts? (Defendant’s place of business was a rather large establishment, with bowling alleys, known as Falcon Bar and Recreation.) We are not informed. They drove to defendant’s place of business, where defendant got out of the car and went inside, but without carrying the papers. He emerged shortly afterwards, at 12:19 p.m., and drove with Kuzera to 20150 Packard, the home of John Tomezak. (This house, when later searched, on November 16th, disclosed coin wrappers, an adding machine, tapes therefor, a “Stroll beer case containing $98.50 in pennies and $5.85 in silver,” and other articles.) At this address they parked, and walked to the rear of the house, out of sight of the watching officer. Their car was driven away after about three-quarters of an hour. Similar incidents on other days followed. Kuzera and defendant were occasionally together. Sometimes, either before meeting defendant, or afterwards, or even while together (as above related), Kuzera would visit homes at which the later searches revealed gambling paraphernalia. On one occasion (July 12, 1950) Kuzera took from such a home at 9439 Brombach, in Hamtramck, a package, about 8x8 inches in size, which he took to his car. Later in the day he picked up defendant, and drove him home. When defendant left the car he carried a package about the same size as the one Kuzera took from the Brombach address. It may have been the same package. What it contained wo are not told. It may have been the fruits or instruments of crime. On the other hand, it may have been an abstract for a lot on Packard avenue, purchased by Edward Skorupski from Albert Kuzera, and concerning which defendant had tried to effect a sale for Kuzera. This is the only “package” incident now presented for our consideration. In addition there was testimony to the effect that on May 25, 1950, defendant entered the home of another codefendant Stanley Brynski, at 3401 Burns avenue, whereupon the latter closed the shades of the Venetian blinds in the sunroom of his home.
Defendant also was observed talking, at the bar of Falcon Recreation, with Albert Kuzera, Tomczak, and Joseph Bosek, all codefendants, and all later convicted.
We will not summarize the rest of the testimony. It is all of a piece. What does the State claim as to it? That it presented enough evidence of conspiracy to go to the jury, and that the jury has resolved the question of fact presented. As the brief puts it:
“Here there was a question of fact as to whether or not Sobczak was taking part in the numbers conspiracy by his frequent meetings in varied situations with heads of the syndicate, and his delivery and receipt of packages similar to those commonly carried by numbers operators.”
And:
“Observations by the police indicated that Sobczak, undisturbed, met with proved heads of the syndicate in both public and private places on many occasions, at times and places, and under circumstances which excluded purely social or legitimate business contacts. Immediately prior or subsequent to meeting Sobczak, the various conspirators visited confederates and called at addresses proved to be quarters of the syndicate. Sobczak’s conduct must be viewed in this environment.”
What all of this testimony comes down to is that the defendant was keeping bad company. There is, at least, a breath of suspicion that he was involved somehow in this nefarious business. But it is no more than a suspicion. There may have been valid reasons for the associations described. The names •of the defendants have a national similarity. There is evidence of one apparently legitimate business transaction (concerning the Packard street lot) which was the subject of some dealings between defendant and Kuzera.
It has long been established, of course, that conspiracy may be proved by circumstantial evidence, in fact that such is generally the case. People v. Beller, 294 Mich 464; People v. Pitcher, 15 Mich 397. But the circumstances must be such as to warrant a fair inference of the facts to be established. The meetings of defendant with Kuzera are as consistent with innocence as with guilt and it is never to be forgotten that a presumption of innocence cloaks our citizens from birth to death. What we fail to find in this record is any proof that any of the other parties to this conspiracy ever so much as spoke of it to defendant, or he of it to them, or to anyone else, or even that he knew of it. We find none of the other codefendants at the trial implicating this defendant in any way, a circumstance of some signif icance in view of the fact that the State called as-witnesses numerous witnesses who had participated in varying degrees in the operation, but who had not been named in the information as defendants. None of these witnesses implicated this defendant,, although their testimony tended to involve several defendants other than appellant Sobczak. Nor do-we find overt acts on his part. What we have is association at certain times over a period of a year with evil men. That is not enough. Criminal guilt under our law is personal fault. It is highly individualistic. It comes not from association, without more, be it with family or friends. We have long left the Code of Hammurabi, which made the guilt of the individual the guilt of his family as well, so that if a man struck the pregnant daughter of a free man, and she died, “his daughter shall be slain.” (The Hammurabi Code and the Sinaitic Legislation, Edwards, p 63; Code Hammurabi, § 210; Diamond, Primitive Law, p 284; 17 University of Chicago Law Review 148.)
From an examination of the record as a whole it appears to us that the proofs adduced were insufficient to sustain a verdict of conviction and the jury should have been so instructed.
The judgment of conviction must be reversed and the defendant is discharged.
Sharpe, Boyles, Reid, and Kelly, JJ., concurred with Smith, J.
Carr, C. J., and Butzel and Dethmers, JJ., concurred in the result. | [
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Cilamplin, J.
Plaintiff brought an action in trover against the defendant to'recover damages for the unlawful conversion of a quantity of wheat.
Mrs. Baughman was the widow of Jonathan Baughman, and guardian of the estate of the minor heirs. A portion of this estate consisted of the interest of these minors as heirs at law of Jonathan Baughman in the west three-fourths of the southeast quarter of section three, in township four south, range thirteen west. In 1881, Charles Baughman, an adult son, resided on the land as a tenant under his mother as guardian. The plaintiff also worked a part of the land on shares under an agreement with the guardian. In August of that year, at the request of Charles, plaintiff applied to Mrs. Baughman for permission to put in a crop of wheat on shares. There was some disagreement among the witnesses respecting the exact terms and conditions of the agreement under which the. plaintiff put in the crop of wheat, and the judge so framed his charge as to submit the questions of fact under the varying testimony of the witnesses.
The plaintiff testified that he made the agreement with 'Mrs. Baughman between the 15th and 20th of August, 1881, to the effect that he should go on and plow the ground, furnish the seed, put in the wheat, and harvest it for two-thirds of the crop, and deliver to her one-tliird in the half-bushel; and soon after that, in consequence of a talk with Mrs. Baughman about buying the place, they went to the judge of probate in order that she might make a petition for •license to sell; that at the probate office, in presence of the judge, it was again talked over about his putting in the wheat for two-thirds of the crop, and that the judge said she had no right to make such a lease; that notwithstanding he then again agreed with Mrs. Baughman that if he bid on the sale more than anybody else he should have the whole crop, and if any one else bid more than he did, he should have two-thirds thereof; and that under such understanding he continued on and put in the wheat. Mrs. Baughman, who was called by the defendant, agrees substantially with the plaintiff, except that she says she told him if she had the power to let him go on and put in the wheat he might do so, but she would ascertain as to her right from the judge of probate, and after seeing the judge she told him she could not do it.
The license to sell was obtained, and the premises put up and sold at public auction to the highest bidder, who was the defendant in this case. The auctioneer states that he announced at the sale that the property would be sold without reserve, 'except a two-thirds interest in one-third of the wheat on the ground ; and that the plaintiff and defendant were both present and bid at the sale. The defendant was informed before he bought at the sale that plaintiff had put the wheat in. When the wheat was ready to be harvested in 1882 the plaintiff cut it, and while part of it was in the shock and part lying in bundles the defendant, without plaintiff’s knowledge or consent, hauled it away and locked it up in a barn, and refused to inform plaintiff who had hauled it away or where it was, and refused to deliver plaintiff’s share to him on demand.
We have no doubt whatever of the legal right of Mrs. Baughman, as guardian, to make an arrangement of the kind testified to by plaintiff — Campau v. Shaw 15 Mich. 226; Kinney v. Harrett 46 Mich. 89 — and the jury by their verdict have settled the question of fact that such an arrangement was made. Plaintiff’s interest in the growing crop was not divested or in any way affected by the sale to the defendant. Plaintiff had the legal right to harvest the wheat and deliver one-third to defendant, and to retain two-thirds himself. This he was prevented from doing by the wrongful act of the defendant. Neither have we any doubt whatever, from the record before us, that the acts of the defendant amounted to a conversion of the wheat.
We discover no error in the record and the judgment of the circuit court is affirmed.
The other Justices concurred. | [
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Sherwood, J.
This case is an action of assumpsit on all the common counts and for use and occupation of a lot in the city of Manistee.
The plaintiff claims rent due him from the defendant from the 7th day of October, 1882, to January 29, 1883. The cause was commenced in justice’s court. The defendant pleaded the general issue, and gave notice that the title of the lot would come in question, and the justice certified the case to the circuit court for trial, under the statute, where a trial was had, and the plaintiff was allowed to recover the rent declared for.
The plaintiff claims title to the lot through a deed from William Wente and wife to him, made October 7, 1882, under which the plaintiff went into possession of the north 40 feet of the lot and built a barn thereon. The remainder of the lot was in possession of the defendant, and had been for eight years, and neither the plaintiff or his grantor ever had possession thereof.
The defendant claimed to be in possession under Mrs. Charlotte C. Bancroft’s chain of title, and that Mrs. Bancroft obtained her title by deed from one Alexander McKay, and that his title was duly transferred through several mesne conveyances to one Eva Robinson, under whom the defendant held a contract for the purchase of the part occupied by him, and under which he was in possession. On the 7th day of October the defendant assigned and set over in writing (on the bach of the contract) all his right, title, claims and demands ■under the Robinson contract to said William Wente, who obtained the deed of the premises under her contract, and then conveyed the property to the plaintiff.
The testimony tends to show that the defendant was familiar with all the changes, and that several of them were made with his approval, if not at his request, that he might take a contract for the purchase of the lot from the plaintiff. And the plaintiff claims, and the testimony tends to show, that the defendant made an agreement with the plaintiff, after the latter had obtained the Wente title, for a contract of purchase of the lot, and all the terms were agreed upon, and it was only left to be put in writing; and this the plaintiff did subsequently do, signed the same and tendered it to the defendant for his signature, which the defendant refused. In May, 1882, Wente had obtained a judgment against defendant for the possession of the lot before he sold to plaintiff, before a circuit court commissioner. At this time the plaintiff had given the defendant notice to quit; and it is for the defendant’s occupancy since his failure to perform that he claims his right to recover the rent.
Evidence was also given tending to show that the defendant, at the time he assigned the Robinson contract to Wente, did so with the' intention of surrendering and relinquishing all his rights in the premises to Wente, that the latter might convey a clear title to the plaintiff.
We think after the defendant had transferred his interest in the Robinson contract, for the purpose stated, to Wente, who at the time had a judgment against him for possession, and defendant had agreed to take a contract for the purchase of the lot from the plaintiff, and had made a small payment on such agreement, and did this with a full knowledge of the condition of the title to the property, (which facts substantially appear undisputed,) he must be held to be estopped from denying the title of the plaintiff, or the plaintiff’s right to the possession and the rents and profits of the property.
It is true, while he held possession under a contract for the purchase, he could not be called upon to pay rent, without fault or failure upon his part to perform the same; but the judgment in ejectment shows he had failed, and forfeited Ms right to occupy, rent free, under the Robinson contract; and when the plaintiff purchased, defendant was certainly a tenant and liable for rent, and has by failure to perform his agreement to purchase of the plaintiff (by declining to sign the contract) continued that ■ liability. The circuit judge so held, and we think correctly.
The question of whether a contract was tendered by plaintiff, and the defendant’s refusal of his signature, was properly submitted to the jury, and the verdict is final upon that fact, and in favor of plaintiff.
These views render it unnecessary to consider the several assignments of error in detail.
~We find no error in the record, and
The judgment must be affirmed.
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Smith, J.
Amina Lintner, the alleged grantor (whom we will hereafter describe as the grantor), was a widow. She was 81 years of age at the time of her death, “quite an accurate lady.” She had a pension of $48 per month, which she supplemented from time to time by the manufacture and sale pf paper flowers, and, occasionally, of crochet work. She lived alone. She had an adopted daughter, living in Chicago, whom she saw at intervals. There is some conflict in the record about the frequency of those visits. The grantor was under the impression that “her daughter hadn’t been to see her for 14 years, until the summer she died.”. The daughter’s testimony, however, was that since her marriage, 10 years back, she had returned home 4 or 5-times. The number is unimportant. We mention it for the light it may cast on the grantor’s intentions and acts. “She (the grantor) said she wasn’t leaving anything to her because her daughter hadn’t visited her — and the neighbors had taken care of her for many years.” This was the next-door neighbor speaking, Mrs. Hazel Norton.
The grantee involved is'Mrs. Millie Meier. She-is also- the defendant-appellee in this case. She saw a good deal of the grantor over a period of some-10 years before the latter’s death. They visited back and forth. Mrs. Meier occasionally gave her small presents, groceries, once a blanket. From time to time they prayed together. The days-shortened. Mrs. Lintner had her friend place $800’ in cash in an envelope which was pasted to the back of the radio in the Lintner home. It was to be for her funeral expenses. She died on September 20,. 1953. Her body was discovered by one of the neighbors who had gone over to see her. The coroner was-called, and certain friends, including Mrs. Meier. When the coroner asked about the belongings of the-deceased, Mrs. Meier removed the above-described envelope- from its place of concealment and handed it to him. In the envelope was found $800 and the deed in question. This case turns on how it came-to be there. If it had been effectively delivered prior to death the property belongs to the grantee. If not, to the estate. We turn to the circumstances surrounding the execution and claimed delivery of the deed.
In the summer of 1951 the grantor requested a neighbor lady to write the legal description of the property involved in a deed form. The grantor dictated from something, the witness did not know what. “She gave as a reason that she wanted me to write, that she thought I could write plain.” Later that summer (in August) Mrs. Teichthesen, who was head bookkeeper for a manufacturing concern, and a notary public, was called by her husband, who is Mrs. Meier’s half brother. She was to bring her seal home because after supper she was to notarize a document for someone. That evening Mrs. Meier called and took her out to the Lintner home, where Mrs. Lintner produced the deed form, with the description written plain upon it, and asked Mrs. Teichthesen to “make it out to Mrs. Meier.” She did so, but adds: “I did not notarize the deed in Mrs. Lintner’s home, for the reason that there were no witnesses at the home.” Accordingly they left, went to Mrs. Meier’s home to pick up her husband, and proceeded together to the Teichthesen home. Here the deed was signed, with Mrs. Teichthesen and Mr. Meier as. witnesses, and notarized with some little formality. The record states:
“A. Well, I asked Mrs. Lintner to raise her right hand and asked her if it was her free act and deed and she said, 'Yes.’
“Q. Then after that did you notarize?
“A. Right.
“Q. Now the deed was witnessed and notarized in that fashion, and would you describe to the judge, in your own words, what happened next?
“A. Well, Mrs. Lintner had the deed and she handed it to Mrs. Meier and a dollar was given to Mrs. Meier in consideration for this deed.
“The Court: To Mrs. Meier?
“A. That is right. Mrs. Meier gave Mrs. Lintner a dollar in consideration of this deed. And at that time she, Mrs. Lintner, laughed about it because she said that Mrs. Meier had given her much more than that.
“Q. And then what next did Mrs. Lintner say or do?
“A. Well, Mrs. Lintner, after it was notarized and she had given it to Mrs. Meier, she said, Well, here is the deed. I want you to have it. It is yours.’
“Q. Says, ‘Here is the deed. I want you to have it. It is yours?’
“A. That is right.”
Mrs. Teichthesen saw the deed in the grantee’s purse about a week later, as did her husband. After Mrs. Lintner’s death, however, approximately 2 years later, the deed was found with her effects in the envelope, as above described.
It is not necessary that we set forth the testimony of the neighbors. Fairly indicative of its general tenor is that of Mr. Blaine Norton who talked with the grantor at his home shortly before her death. On this occasion, he says, “she told us that she had deeded her property to Mrs. Meier. That was on a Friday before she died.”
It is the position of the administrator, warmly urged upon us, that all of the above “is nothing less than a family conspiracy to obtain Mrs. Lintner’s property.” It is said that the deed was intended to take effect only upon Mrs. Lintner’s death, was testamentary in character, and that there was no delivery thereof prior to the grantor’s death. Various words and circumstances are argued as indicative thereof. We have considered them all.
The law applicable to this case may be very simply stated, although the application of the facts thereto is more complex. Whether there has been a delivery of a deed now depends upon the intention of the grantor. It is shown by his words and actions and by the circumstances surrounding the transaction. As we said in Hynes v. Halstead, 282 Mich 627, 631, 637:
“The whole object of the delivery of a deed is to indicate an intent upon the part of the grantor to give effect to the instrument. Thatcher v. St. Andrew’s Church of Ann Arbor, 37 Mich 264. Any act prespmptively a delivery of a deed will not be a delivery if the intent to make it such is wanting. Stevens v. Castel, 63 Mich 111. * * *
“The act of delivery is not necessarily a transfer of the possession of the instrument to the grantee, and an acceptance by him, but it is that act of the grantor, indicated either by acts or words, or both, which shows an intention on his part to perfect the transaction by a surrender of the instrument to the grantee, or to some third person for his use and benefit. Thatcher v. St. Andrew’s Church of Ann Arbor, supra.
“The test is whether it can be said that delivery of the deed was such as to convey a present interest in the land. Pollock v. McCarty, 198 Mich 66.”
So far as the finding of the deed in the grantor’s possession is concerned, it does not necessarily defeat delivery, but the burden is heavy on the grantee to prove delivery in such case, for presumptively there has been none. The point to be stressed is that delivery may be good, notwithstanding that subsequently thereto the deed returns to the physical custody of the grantor. We commented on the matter in McCauley v. Schrock, 236 Mich 317, 321, 322, in the following terms:
“It is apparent from a consideration of all the testimony bearing on the question of delivery that it was the intention of the grantor that the property should go to the defendant on her death. There had been a delivery to defendant. It is doubtful under our decisions whether any subsequent act or direction on the part of the grantor could thereafter affect the rights of the defendant. Any condition not expressed in the deed would constitute an attempt to make delivery to the grantee in escrow,. and this may not be done. Wipfler v. Wipfler, 153 Mich 18. See note to this case in 16 LRA NS 941. In Blackford v. Olmstead, 140 Mich 583, 588, it was said:
“‘If the proofs should show a delivery with intention to vest title, the fact .that the deed was returned to the grantor would not in law defeat a delivery once accomplished.’”
We need not cite the numerous cases in this State which are in accord with this view. In Takacs v. Takacs, 317 Mich 72, Chief Justice Caer, writing for the Court, carefully analyzed our decisions with respect to the matter of delivery. See, also, 4 Tiffany, Eeal Property (3d ed), § 1033 et seq., and 3 American Law of Property, § 12.64 et seq. The record sustains the finding of the trial court who concluded, in part, as follows:
“It is my conclusion from this testimony that at the time of the execution of this deed, there was an actual delivery of it by Mrs. Lintner to the defendant Meier and at that time Mrs. Lintner had the present intention to convey her interest in the property to Mrs. Meier. It seems to me that this conclusion is borne out by practically all the testimony in this case.”
And, with respect to rebutting the presumption of nondelivery:
“Although it does require strong evidence to rebut such a presumption, it seems to me the evidence in this case performs that purpose.”
We agree. The record amply sustains the findings of the trial court. We have, moreover, examined the other points raised by appellant, including that of lack of consideration, and find them without controlling influence on the issues presented.
The decree of the trial court dismissing plaintiff’s bill of complaint is affirmed, with costs to appellee.
Carr, C. J., and Butzel, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Sherwood, J.
This is a quo warranto proceeding, brought by the Attorney General in behalf of the relator to ascertain the rights of the respondent to the office of sheriff in the county of Ogemaw. The respondent is the present incumbent, and claims to have been elected to the office at the general election in November, 1882. Issue was joined at the April term of this Court, and sent to the circuit court for the county of Ogemaw for trial on the facts. The trial was had by jury, and the issue as made up, together with the jury’s findings at the trial, are now before us upon this hearing.
The whole issue, as presented by the record, narrows down to the single question. “Was the vote taken in the township of Edwards legal ? ” If it was, the writ must be- dismissed; if illegal, judgment of ouster must go against the respondent and in that ease it will remain to be determined whether or not the relator is errtitled.
The only irregularity relied upon, by the relator is that on the morning of election the supervisor and justice of the peace met at the school-house in district number One and organized as inspectors of election, and without receiving any votes at that place, adjourned the election to the schoolhouse in district number Two in said township, and on doing so announced the fact publicly to all'present, and left a proper person at number One to notify all electors who came there to vote, of the change made by the board.
The jury find, as matter of fact, the change was made in •good faith by the inspectors, they believing they had the right so to do, and not to deprive any elector from voting, but for the purpose of accomodating a larger number of the voters — district number One being in the south-east corner of the township — said township consisting of the territory of two surveyed townships — and that the districts were about eight miles apart. The jury further find that two of the electors of the township did not-vote because of the change made and other business, and that several objected to the removal of the place of voting; that it was not made to appear that any other neglected to vote because of the adjournment, or that those who stayed away, if any, would have voted for the relator if the change had not been made; that the voting at number Two was conducted in an orderly manner, the returns properly made, and in the county canvass the votes were counted as given, and the respondent declared elected.
Nowhere in the record is it made to appear that had the election in the township of Edwards been held in district number One, as relator claims it should have been, he would have received more votes, or even as many, as he received at number Two. It is really not claimed by relator that he would have been elected had the election been held in district number One, but it is insisted that by the action complained of the vote of the township was made void, and lost to either party.
In such cases it is held in California that it is no more than an irregularity, and that the good faith of the action taken should control; and it is sufficient that no fraud or deception has been used and no one is deprived of his opportunity to vote and no one is injured. Whipley v. McKune 12 Cal. 352. And this case substantially says that, no matter how erroneous may be the action of an election officer, if it does no injury to the party complaining h§ has no grievance to redress. And the courts very generally hold statutes prescribing the manner of holding elections directory and not mandatory, unless it affirmatively appears that the irregularity is of a character to change the result, and when that is the case the relator should make that fact appear. People v. Cook 14 Barb. 290; Holland v. Osgood 8 Vt. 280; Corliss v. Corliss 8 Vt. 373; Marchant v. Langworthy 6 Hill 646; Ex parte Heath 3 Hill 43; Dishon v. Smith, 10 Iowa 212; People v. Cook 8 N. Y. 91; Lanier v. Gallatas 13 La. Ann. 175. The principle I understand to have been established by this Court, and also by the great weight of authority, is that an election is not to be set aside and declared void because of an irregularity which does not affect the result; that the “ will of the electors, plainly expressed in the forms prescribed by law, cannot be defeated by the negligence, mistake or fraud of the officers appointed to register the result of an election.” People v. Cook 14 Barb. 327; People v. Vail 20 Wend. 14, People v. Cicotte Mich. 324. “ And even where the statutory provisions are mandatory, they do not necessarily defeat an election actually held, if the means exist of determining the result. A particular act or proceeding may be rendered void, and the election be upheld notwithstanding.”
Applying these principles of law to the facts as found by the jury, I am unable to perceive how the relator can prevail. Here was an election held under the forms of law, in good faith. No fraud is imputed, nor is it even shown positively that any one was inconvenienced, much less prejudiced by the action of the board complained of. No person cast a vote who was not entitled. Two only complained of the ac tion of the board, and it is not shown that if they had voted they would have cast their ballots for the relator; but if they had, it could not have affected the result. We think the relator has failed to show himself injured by the action of the inspectors of election, or that the respondent is not entitled to the office of sheriff of Ogemaw county.
The relator’s petition must be dismissed with costs.
Campbell and Ciiamplin, JJ. concurred. Cooley, C. J. did not sit in this case. | [
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Campbell, J.
Plaintiff brought ejectment for certain lands in Wayne county, and [defendant] prevailed. Both parties claimed under a title granted by the United States to Richard Sutliff. Plaintiff claimed under Minerva Sutliff, to whom, it was insisted, Richard deeded in 1857. Defendant claimed under a deed from Richard Sutliff to Burritt Sutliff in 1858.
There was an issue presented to the jury allowing them to pass upon' an adverse possession in Burritt and those in his line of title. But we find no foundation for any theory that could possibly make out any such claim, except by eking out his period of possession by making his father, Richard Sutliff, an adverse holder against his wife, Minerva, during their married life and family occupancy. This is not within any rule.
The only question which was open for serious controversy was whether the deed to Minerva was ever operative. If it was, then plaintiff made ont a good case. If not, then the judgment for defendant was right.
It appeared that Richard made and recorded the deed to his wife. But it further appeared that he got it back when recorded; and there was evidence tending to show that he retained it and never delivered it, and that she never knew of it during his life-time, and denied claiming any interest in it. There were facts enough on both sides to have the question laid before the jury, unless the mere fact of recording is conclusive, which there is no rule of law to maintain. The jury found it was never delivered. This being so, the finding is conclusive, unless there were errors in receiving testimony, and we see nothing of that sort in the case which could have affected this question.
The judgment must be- affirmed.
The other Justices concurred. | [
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Champlin, J.
The complainant filed her bill for divorce on the ground of extreme cruelty.
We have examined the record and, giving to the testimony its full weight and significance, we are unable to satisfy ourselves that a divorce ought to be decreed in this case. Mutual forbearance would have obviated the differences which appear to have arisen between the parties. There is no reason why they should not reconcile themselves to each other; and while neither party is entirely free from blame, no sufficient cause has been shown to exist which will justify us in granting a decree for divorce.
The bill must be dismissed without costs against complainant. But, under the circumstances, an allowance is made to complainant’s solicitor of fifty dollars as expenses in this Court, and an order will be entered here that defendant pay the same to such solicitor in thirty days after service on him of a certified copy thereof.
The other Justices concurred. | [
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Smith, J.
(dissenting). This is a case in which a portion of the police powers of a municipality have been sold to a private corporation, which, for its gain, thereupon undertakes the enforcement thereof upon the public highways of the State. The defendant makes bold to assert that this is unconstitutional.
There is no dispute about the facts. The defendant, on March 13, 1953, was driving his car in an easterly direction on highway US-12 in Comstock township, Kalamazoo county. He heard a siren behind him and shortly thereafter he was stopped by a police-type car containing 2 men. The defendant did not resist or evade. As one of the 2 men testified: “I blew the siren before I stopped Mr. Robinson, but did not crowd him to the curb or flash the red light.” The car carrying the 2 occupants was a 2-door, cream-colored police-type cruiser. It bore the lettering “Police” on both sides of the hood. It carried a combination siren and searchlight. A “shield” appeared on each door of the car.
Out of this car stepped one Richard W. Allen. He asked to see defendant’s license to drive and operate his motor vehicle. After it was handed him, in response to such request, Allen went back to “Sergeant” Eberly, who made out what is described in the record as “a violation ticket.” The dress assumed by the so-called Sergeant was in keeping with the assumed status of his vehicle. It was a uniform. On the left front was a “badge.” On his right sleeve were the words “Police Traffic” and the insignia of a sergeant. Also on his right sleeve were the words “Charles Services, Inc.”
Their whole get-up was a simulation of the accoutrements of our regular police officials. The truth of the matter is that these men were the employees of a private profit corporation, hired by it and paid exclusively by it. Their corporate employer had employed them to serve as “police officers.” “I live in Kalamazoo,” testified one. “I am employed by Charles Services as a police officer, performing duties on traffic and night patrol.” The car in which they were “patrolling” the public highway was likewise a carefully contrived simulation of a public vehicle, including in its details, a siren permitted under our statutes (CLS 1954, § 257.706 [Stat Ann 1952 Rev § 9.2406]) only to authorized emergency vehicles. This car, in truth, was not a public vehicle but was the private property of the corporation, or its president.
Having thus identified the offending citizen, and having given him a “violation ticket,” the sergeant, now as “A1 Eberly,” minus the official title, signed a complaint upon which a warrant was issued out of the municipal justice court of Kalamazoo. This warrant was served and returned by the Michigan State police, following which trial was had and conviction for speeding obtained.
Charles Services, Inc., is a private corporation, organized for profit, and known as a private police investigating agency. The details of its contract with the municipality are not set forth in the record. We do not know whether the corporation purchased the right to patrol the highways, much as a concession's purchased at a carnival, or whether the municipality hired out its law-enforcement functions for ■a fee, fixed, contingent or otherwise. In the view we take of the case the method employed does not control our decision. It is clear from the record, however, that the corporate employees have patrolled the highways for some 3-1/2 years and we must assume, from this course of conduct, and its recognition by the public officials of the area, that, either by its terms or its construction, the contract permitted Charles Services, Inc., to perform the functions herein described.
We will not explore in detail all aspects of the prosecutor’s argument. He seeks to justify the conviction primarily upon the theory that an “irregular arrest (is) no cause for discharge where followed by (a) regular complaint and warrant” (People v. Miller, 235 Mich 340 [syllabus 1]; In re Little, 129 Mich 454 [57 LRA 295]); that here, following the highway incident above described, there was a regular complaint and warrant, and that the court therefore had jurisdiction and the conviction was valid. It is added that there was no timely motion to suppress evidence allegedly illegally obtained, i. e., the information obtained from the driver’s license of the identity of. the offending motorist.
The difficulty with the prosecutor’s syllogism is that it overlooks the basic defect in the series of incidents described. What we actually have here goes far deeper than matters of evidence, or whether the citizen was, or was not, in custody (i. e., arrested) as he stopped his journey and produced his identification papers in respectful deference to the show and sound of the majesty of the law. It involves the private exercise of a portion of the police power of the State, an idea which was characterized by Mr. Justice Campbell for this Court almost a hundred years ago as “inconsistent with any.idea of government whatever.” Ames v. The Port Huron Log Driving & Booming Co., 11 Mich 139, 148 (83 Am Dec 731).
The police power is an inherent attribute of-sovereignty. It should require no citation of authority that-it can neither be abdicated nor bargained away. It is not alienable even by express grant. The cases are collected in 2 McQuillin, Municipal Corporations (3d ed), § 10.38 et seq. See, also, Petz v. City of Detroit, 95 Mich 169, 180. Particularly is this true with respect to those inalienable rights of the citizen having to do with his personal freedom, his freedom from arbitrary stoppage, detention, or arrest, from unreasonable search and-seizure.. Not only are the constitutional and statutory safeguards, as interpreted by this Court, explicit as to manner of arrest, whether with or without warrant, and, if the latter, under what circumstances, but the qualifications of the arresting officer equally so. He is a re sponsible, upright and discreet citizen. He is elected or appointed. He takes oath. He gives bond. The basic concept is one of personal responsibility traceable directly to the authority of the people. What have we here? We know nothing of the qualifications imposed by the directors of the private corporation in their selection of “officers.” How do its bylaws square with our great constitutional principles? What are its doctrines as to' “arrést”? Is the corporate official who hires and fires extended any greater privilege, on the highway, by the servants of his choice, than the humblest stranger on the road? How, indeed, does the corporation take the required oath before it embarks upon its patrolling of the highways?
There is an intimation in the record that, in addition to being corporate employees, the employees were also deputy sheriffs. We say “intimation” advisedly. Their authority was not shown affirmatively as part of the people’s case despite prompt challenge of their capacity and authority, although on cross-examination the claim was made that they were “deputized.” By what officer or authority we are not informed. The record is silent, likewise, as to any claim of such status through the use of insignia, or by way of oral notification. The sleeve designation was not that of deputy sheriff but of Charles Services, Inc., combined, as noted, with the indicia of a “Sergeant,” a rank we do not find defined for deputy sheriffs in the statutes of this State. Their status seems to be defined with accuracy by their employer:
“The Charles Services, Inc., is a private corporation known as a profit organization and I am the president. Witnesses Eberly and Allen were employees of mine and are engaged in police-type work and subject to call at any time. Charles Services, Inc., also holds a license as a private detective agen cy and does private police detection work along with detective work. I am the supervisor and immediate superior of Eberly and Allen who have testified and they are on a salary basis which is paid by Charles Services, Inc., which, so far as I know, is their only compensation.”
If these “officers” were in fact deputies, properly authorized public officials, the fact that they were privately employed and paid by a commercial corporation for the patrolling of public highways is indefensible. And if they were not properly authorized public officials, that they should be patrolling our highways and regulating the conduct of our citizens is equally indefensible.
The activities of the corporation did not end with the citizen’s halt and inquisition on the highway. The record invites our attention to exhibit A of the application for leave to appeal, a letter addressed by the president of the corporation to the defendant. It follows in its entirety:
“Charles D. Spencer Charles A. Plummer
CHARLES SERVICES, Inc.
Licensed and Bonded Detective Agency 218 South Westnedge Avenue, Kalamozoo, Michigan
Telephone 5-0320
April 2,1955
“Mr. Thomas N. Robinson 457 Cedar Street Benton Harbor, Michigan
“Dear Mr. Robinson: Re: Case No. S-35062
Traffic Summons No. 1053
Charles Services, Inc.
“On March 19th our officers were in court awaiting your appearance and, as we have now learned that you were in the city and contacted our prosecuting attorney, we assume that you were not familiar with the procedure you were expected to follow and therefore did not go to the municipal justice court room, which is located on the second floor at police headquarters. The prosecutor turned over to me your copy of the traffic summons and we realize that you did make an effort to appear.
“Your appearance has now been scheduled for Thursday morning, April 9th, at 10 A. M. However, I am assuming that you desire to enter a plea of not guilty and request a trial. In this event, I would suggest that you contact the municipal court prior to the time of your scheduled appearance, and I believe the court will allow you to enter your plea and set a date for trial of the case. If you desire a, trial by jury, you should advise the court, as it may make, some difference in the date or time set. Following thjs procedure will save you another trip to Kalamazoo.
“Trusting you will give this matter your prompt attention, we are
“Very truly yours,
“CHARLES SERVICES, Inc.
“By/S/ Charles D. Spencer
“Charles D. Spencer
“President
‘•ODS/W
“Commercial Police. Civil and Criminal Investigations. Uniformed Guards.”
From the contents of the above the corporate function becomes increasingly clear. It has assumed an active role in the enforcement of the law. Having' left the highway, it now reaches into the trial stage. Thus it is'that “our officers” háve been waiting for you. The citizen, he is- told, should “advise” the court if his “desire” is for trial by jury. This is apparently what" is referred to in legal •'quarters, as distinguished from corporate, as the “demand for jury trial,” a phrase rich in history, employing, it is noted, the word “demand,” a blunt, arrogant word, full of pride, smelling of the bill of rights, and eschewing the delicacy of request or advice.
The source of all of this information, a newcomer to our judicial processes, challenges our professional curiosity. This corporation, a creature of charter and contract, is far from the orthodox lifeless entity, without mind, soul or body. This one has acquired a legal education. It is advising citizens in trouble, real trouble, facing possible incarceration, as to procedures to follow. We view the corporate prodigy with incredulity and without warmth.
Our Court has in past years traced the tortuous and often bloody path by which our people finally attained their personal freedoms, their right to live without unwarranted interference. This is not the 'occasion to retrace the familiar path. It is, however the occasion to state in the clearest possible terms that the carefully circumscribed power to transgress upon this liberty, so dearly bought, cannot be hawked to a private profit corporation. It cannot, very simply, because it cannot be the subject of bargain and sale. Liberty and freedom partake more of the nature of articles of faith than articles of commerce.
If the police function with respect to traffic enforcement can be put on the public auction block, or its sale or purchase negotiated privately, so, it would follow, might any or all other police functions. The possibilities, nay, probabilities of manifold abuse, of untold aggrandizement, well justify Mr. Justice ■Campbell’s stricture. Such action is, indeed, inconsistent with any idea of government whatever. It is not, in fact, government as we know it. We will not, we need not, elaborate.
We cannot agree with Mr. Justice Dethmers that this record does not disclose the existence of a con tract. The presence of these men, dressed as described, “patrolling the highway” in their “two-door, cream-colored police cruiser-type vehicle with a shield on each door and the word ‘Police’ across the hood” could only have occurred from an agreement of the municipal authorities with the corporation. We care not for the terms or the writing. The basic problem is not one of a meeting of the minds, or whether a properly-deputized sheriff can arrest a citizen, or even a technical point of evidence (the “suppression” of the knowledge gained by Sergeant Eberly). All of this is old straw, well threshed. Here the basic issue is one of government: May a portion of the police power be sold to a private corporation to be thereafter exercised by its employees for its profit? We say the sale cannot be made. And if the sale is wrong, as ruled by Mr. Justice Campbell, it cannot be righted merely by deputizing the corporate employees. The corporate deputy is no stranger to the law. His face has often appeared in the courts. See Hearings before a Subcommittee of the Committee on Education and Labor, United States Senate (1936-1939), pursuant to Senate Resolution 266, 74th Congress, 2d Sess. If ho has any place in our scheme of government it is behind the company fence, not on the public highways.
In short, the contract of Charles Services, Inc., with the employing municipality was against public policy, illegal and void. The actions taken under the contract and pursuant thereto were an integral part of a wholly unconstitutional scheme of law enforcement. This being the case we will not decide the isolated questions of arrest and evidence presented, since they come to us only in a context of proceedings resting upon a foundation riddled with invalidity.
The conviction should be reversed. Costs to appellant.
Dethmers, J.
I do not concur in reversal. Questions concerning the validity of policing contracts between municipalities and private corporations engaged in private detective and police detection work, or the lawful powers of employees of the latter to arrest or stop motorists on highways for traffic violations, interesting though they may be, are not before us for determination in this case, in which the record discloses neither the existence nor provisions of such a contract. Here the question is whether prejudicial error occurred on trial, which entitles defendant to reversal of his conviction of speeding. Defendant’s statement of reason and ground for appeal raises a single claim of error (no other will be considered — Michigan Court Rule No 66, § 3 [1945]; Ludwick v. Hendricks, 335 Mich 633), namely, that his conviction was based on evidence which should have been suppressed because obtained by illegal means. Defendant predicates this claim on the contention that the evidence, received at trial over his objection, establishing his identity as driver of the speeding automobile, was obtained as the result of his having been stopped unlawfully on the highway by an employee of a private detective agency not authorized by law to arrest or stop persons for the commission of offenses other than felonies, except when summoned to assist a peace officer. CL 1948, § 764.16 (Stat Ann 1954 Rev § 28.875).
The private detective agency employee who stopped defendant, asked for and examined his operator’s license, made out and gave him a violation ticket, and identified him on trial as the driver of the speeding automobile, testified that he was deputized, that he was a special deputy sheriff, and that one of his immediate superiors from whom he took orders was Mr. Buder, the sheriff, this Court taking judicial notice of the fact that at that time Otto K. Buder was the sheriff of Kalamazoo county where the speeding offense occurred. People v. Johr, 22 Mich 461; and Union School District of City of Saginaw v. Council of the City of Saginaw, 232 Mich 639. Authority of a deputy sheriff of the county to arrest or stop defendant for a misdemeanor committed in the officer’s presence cannot be questioned. CL 1948, § 764.15 (Stat Ann 1954 Rev § 28.874). The burden did not rest on the people to prove the authority of ■the person stopping defendant to do so, but, on the •contrary, defendant, being the party asserting that the evidence was obtained illegally, had the burden of ■establishing the lack of such authority and the consequent illegality of the means by which the evidence was obtained. State v. Gardner, 77 Mont 8 (249 P 574, 52 ALR 454). This burden he did not sustain. The necessity for his doing so points up ■one of the reasons for our oft-repeated holding that .a defendant’s objection to evidence on such ground, made for the first time, as here, when offered at trial, comes too late, but ought to have been made in advance of trial by motion to suppress. People v. Heibel, 305 Mich 710, and cases therein cited. It follows that the evidence complained of must, under the record in this ease, be held to have been lawfully obtained and properly received. That disposes of the only claim of error properly before us on appeal.
Affirmed.
Carr, C. J., and Butzel, Sharpe, Reid, and Kelly, JJ., concurred with Dethmers, J. | [
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Sharpe, J.
Plaintiff began an action for damages for injuries sustained while riding with defendant’s deceased driver as a passenger for hire under a driving pool contractual arrangement. The essential facts are as follows: On April 6,1954, an automobile owned and driven by Arthur C. Eydman hit an oncoming truck head-on in a fog while attempting to pass another automobile. The collision occurred at about 7:15 a.m., approximately 1/2 mile east of the intersection of US-10 and M-30 in Midland county. It appears that plaintiff and defendant’s decedent and 4 other men had been riding together for approximately 3 months, and did so as a result of an agreement to save car expense. All 6 men were employed by Dow Chemical Company and all ■of them lived in the vicinity of Coleman, Michigan. Each of the men owned an automobile, and it was agreed that each member would drive his automobile In his turn every 6 days. If a driver missed a turn at driving, he would telephone another member for substitution and later make up driving in the accommodating member’s turn to drive. On the day •of the accident Arthur C. Rydman substituted for Martin Allen who had telephoned him. Plaintiff, at the time of the accident, was riding in the car driven by Arthur C. Rydman, who, in an attempt to pass an automobile, drove to the left side of the highway for the purpose of passing another automobile proceeding in the same direction, at a time when the visibility on the highway was limited due to the presence of fog, and in so doing had a head-on collision with a truck going in the opposite direction. As a result of the collision Arthur C. Rydman was fatally injured, and plaintiff was likewise severely injured.
Plaintiff began an action in the circuit court of Midland county, and alleged in his declaration that he was not a guest passenger. The cause came on for trial, during which time plaintiff introduced evidence in support of his declaration. At the close of plaintiff’s proofs, and at the close of all proofs, defendant made a motion for a directed verdict on the theory that the scheme of the driving pool was voluntary and that no contract was ever entered into amounting to a passenger-for-hire relationship. The ruling on the motion was reserved by the trial court under the Empson act. The trial court submitted the cause to the jury and, among others, gave the following instructions:
“The Court instructs you that one of the basic issues to be determined by you in this case is whether the plaintiff, William Collins, was a passenger for hire, or a guest passenger at the time of the accident in question. This issue is termed a basic one because the foundation of liability as to a guest passenger differs significantly from that of a passenger for hire. A guest is one who is invited, either expressly or impliedly, to enjoy the hospitality of the driver of a motor vehicle, who accepts such hospitality and who takes the ride either for his own pleasure or on his own business, without making any return to or conferring any benefit upon the driver of the vehicle as compensation for the ride other than the mere pleasure of the rider’s company. Where, however, the driver receives some compensation, which is the chief inducement for the rider’s transportation and which is given and received as compensation and as a business transaction, such a rider is a passenger for hire, not a guest passenger. The compensation required to make a person a passenger for hire rather than a guest passenger, need not be in money and need not be paid directly by the one who thereafter becomes a plaintiff. If, as the chief inducement for the transportation any benefit is conferred on the driver, which has a then present pecuniary value, though that value may never ripen into material gain, the person transported is a passenger for hire, and not a guest passenger.”
The jury returned a verdict in favor of plaintiff in the amount of $4,000. On March 15,1955, defendant filed a motion for a “directed verdict notwithstanding verdict.” The trial court denied this motion on March 23, 1955. On April 1, 1955, defendant filed a motion for a new trial. The motion for a new trial was denied by the trial court on April 12, 1955. Defendant appeals and urges that the trial court was in error in failing to grant defendant’s motion for a directed verdict, and in submitting the issue of passenger for hire to the jury. It is admitted that de fendant’s decedent, Arthur C. Rydman, was guilty of ordinary negligence and that such negligence was the proximate cause of the accident.
It is also an admitted fact that plaintiff was free from contributory negligence, nor is there an issue as to the size of the verdict. The rule to be followed to determine whether plaintiff was a guest passenger or a passenger for hire is announced in Bond v. Sharp, 325 Mich 460, 464, where we said:
“Whether the relationship between parties is that of a guest passenger or a passenger for hire depends upon the facts in each case. It has been held that where the arrangements between the parties are so indefinite and casual that sociability is the dominant element, then a guest relationship exists. See In re Harper’s Estate, 294 Mich 453; Guiney v. Osborn, 295 Mich 559; Brody v. Harris, 308 Mich 234 (155 ALR 573).
“It is the general rule that whenever transportation is for the pecuniary benefit of the defendant, the' transaction is not gratuitous and a passenger-for-hire relationship may exist. See Foley v. McDonald, 283 Mass 96 (185 NE 926); Bushouse v. Brom, 297 Mich 616; Everett v. Burg, 301 Mich 734 (146 ALR 639); Miller v. Fairley, 141 Ohio St 327 (48 NE2d 217).”
In the above case the primary objective of the' agreement was to transport the parties to and from their place of employment. It is also the rule that payment for transportation does not necessarily require a money consideration. The rendition of services or other giving of value, pursuant to an agreement, is sufficient, see Peronto v. Cootware, 281 Mich 664, and Anderson v. Conterio, 303 Mich 75. It is also the rule that if a trip is taken for pleasure or social purposes, the relationship of passenger for hire does not exist, see Wilcox v. Keeley, 336 Mich 237. Nor are incidental benefits sufficient to ■take the case out of the guest-passenger status.
In the case at bar there was evidence introduced from which a jury could find that all of the parties In the car pool lived in or near Coleman, a village 15 to 18 miles north of Midland, the home of the Dow Chemical Company; that the parties would meet ¡at the hotel in Coleman about 6:45 a.m. for the trip to Midland; that each member of the pool would ■drive every 6th day; that any member of the pool ■could refrain from driving when his turn to drive ■came, but was obligated to have another member of the pool to drive in his place; that the cost of taking ¡a bus from Coleman to Midland was approximately $4.90 for 10 rides; that the cost under the pool arrangement was approximately $1.00 per week for ■each member; that the families of the members were not on what might be called social terms; that the main purpose of the pool was for financial purposes, .and that the benefits accruing to each member of the pool was the right to demand a corresponding ¡service from other members of the pool.
In our opinion there was evidence from which a jury could determine that a passenger-for-hire relationship existed between the members of the pool. The judgment of the circuit court is affirmed, with -costs to plaintiff.
Dethmers, C. J., and Smith, Reid, Boyles, Kelly, ■Carr, and Black, JJ., concurred.
See PA 1949, No 300, § 401 (CLS 1954, § 257.401 [Stat Ann 1952 Rev § 9.2101]).—Reporter.
CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1955 Cum Supp § 27.1461 et seq.).—Reporter. | [
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Boyles, J.
This case comes here through an appeal by the defendant Hubert DeWolf and several •other individuals who are in accord with his claims, seeking to set aside a decree of the superior court of Grand Rapids which holds that the legal and only board of directors of the plaintiff First Protestant Reformed Church of Grand Rapids, a Michigan -ecclesiastical corporation, is the consistory of said •church of which one Herman Hoeksema is president and one Gerrit Stadt is clerk. Hereinafter, for brevity and clarity, the plaintiff may, on occasion, be referred to as the Hoeksema church, and the defendants-appellants as the DeWolf church.
The fundamental question involved is whether the plaintiff Hoeksema church or the defendant DeWolf church owns the church building and other property, and therefore has the right to its possession and control. The decree enjoins the defendants from claiming to be the legal consistory of the church, and from interfering with the plaintiff’s possession and control over the church property unless they be recognized as members in good standing of the plaintiff church by the legal consistory of said church, under the ecclesiastical rules adopted for such purpose. The decree also requires the defendants to account to and turn over to the said legal consistory all money and other property which they now hold for or in the name of said First Protestant Reformed Church of Grand Rapids.
In 1926 the plaintiff church was incorporated as an ecclesiastical corporation under the provisions of PA 1921, No 84. The name was changed to its present form by amendment of articles in 1927, at which time the Reverend Hoeksema was president.. The plaintiff church was incorporated by Reverend Hoeksema and others following our decision in Holwerda v. Hoeksema, 232 Mich 648, to which reference will be made later herein; and apparently was the result of a controversy which arose in East Street Christian Reformed Church of Grand Rapids, discussed in said opinion, which had resulted in the suspension of Reverend Hoeksema as minister of that church.
Following the above incorporation, other Protestant Reformed Churches were organized in other cities, becoming 12 in number by 1951.
Under the articles, the constitution and the church orders of the plaintiff church, the consistory, 2' boards of classis and a church synod came into existence. By 1951 the church had a large membership and had acquired substantial holdings of real estate, including a church and parsonages. Two of its 3 ministers were Hoeksema, and Hubert DeWolf the appellant herein. The church was governed by the rules and usages declared and authorized by the classis of said churches, the articles, and the church order. Control and possession of the property of the church was thereby placed in the consistory representing the membership of the church.
In 1951 and 1952 protests were filed with the consistory complaining that statements made in sermons by the Reverend DeWolf were'heretical. In October, 1952, the consistory condemned these statements as being heretical and requested Reverend DeWolf to apologize. However, Reverend DeWolf advised that he would not conform, whereupon he was first released from duties, but shortly thereafter returned to office. The controversy continued, further protests were filed in 1953, and at meetings of the classis in April and May, 1953, the protests were considered, the consistory took action to suspend Reverend DeWolf and to depose others of the elders of the church if they refused to apologize for the alleged heretical statements. They continued to refuse to apologize. Other meetings of the classis and consistory were held. Claims are made by the defendants-appellants that some of these meetings were illegal, not properly called or not properly representative, and a claim is made that on 1 occasion the action was not taken by a majority vote. Claim is further made that some delegates were ineligible to vote. At a meeting held June 23, 1953, these matters, including the action to depose Reverend DeWolf and certain others, were considered, followed by a meeting June 25th, presided over by Reverend Hoeksema. Reverend DeWolf and several elders who supported him were suspended from office or deposed. Two of the deposed elders who supported Reverend DeWolf notified the consistory of the refusal to recognize what they claimed to be illegal suspensions and depositions. The consistory was notified by the suspended members that they claimed to be the legal consistory of the church, entitled to possession and control of the church and other properties.
Then Reverend DeWolf and his supporters took possession of the church, changed the locks on the doors, and excluded the opposing (Hoeksema) faction from its use. The consistory supporting the Hoeksema faction and that part of the church congregation supporting Hoeksema then found another place in which to conduct church services, and have since continued to hold services there. They made-no attempt to forcibly re-enter the church.
The controversy having reached this acute stage as the result of differing claims as to the authority of the Hoeksema consistory, the legality of its meetings and of the action taken by it, the Reverend DeWolf faction continued to hold possession of the property. This was contrary to the action taken by the consistory, which had been supported by other members under the church orders; and also contrary to action taken by the classis and synod which had supported the suspension and deposition of the DeWolf faction. Thereupon the plaintiff church filed the instant bill of complaint claiming that the Hoeksema church had the only legal consistory, and as the legal representative of the church had authority for its acts. The defendants Reverend DeWolf and the deposed elders answered and sought affirmative relief, claiming to be the legal representatives of the church. Issue was joined and several hundred pages of testimony taken by the court, stating the respective claims of each faction as to their construction of the articles, constitution and church orders; and their respective views as to the legality of the various meetings and action taken by the Hoeksema consistory. The record shows that the articles and constitution, and the church orders of said First Protestant Reformed Church, and the affiliated Protestant Reformed Churches, are substantially the same as those of the Christian Reformed Churches which preceded the present church organization and out of which it grew. They have been under consideration by this Court in Borgman v. Bultema, 213 Mich 684; and Holwerda v. Hoeksema, supra.
The trial judge hearing the case, and relying upon those decisions, concluded that the plaintiff First Protestant Reformed Church., under its articles and constitution, and the church order, was dedicated to-the discipline, rules and usages of the Protestant Christian Reformed Churches of the United States,, as authorized and declared from time to time by theclassis of said churches. The court concluded that the church order became the constitution of the church, to which every member subscribed, and that the court was bound to recognize it as controlling the issues.
We are in accord. We decline to hold, with the defendants, that the Hoeksema consistory had departed from the doctrines and practices of the Protestant Reformed Churches. We have consistently held that the court may not substitute its opinion in lieu of that of the authorized tribunals of the church-in ecclesiastical matters. The consistory is the governing body of the church, in conjunction with the classis and the synod. The powers and the functions of the consistory, the classis and the synod are fully set forth and explained in Borgman v. Bultema and Holwerda v. Hoeksema, supra. They need not be repeated here. In said decisions we have settled the-question that the articles and the church orders are the supreme law and the constitution of the church, the sole and exclusive authority to settle questions as to who adhere to the confession of faith, and to> decide what the confession of faith of the church is or shall be. We have further held that the synod was a proper body to hear, try and determine whether the action of the defendant Reverend DeWolf and his followers was heretical and in conflict with the-confession of the church; and that the decision of the synod, the classis and the consistory in the matter is final and binding upon the court. In Borgman v. Bultema, supra, we settled the question that where the defendant minister refuses to retract statements thus decided to have been heretical, he subjects him self to being deposed by tbe classis under tbe cburcb ■order, subject to being legally and properly removed. We do not agree with tbe defendants that there was ■any substantial infirmity in the steps taken to reach that conclusion, in the instant case.
“Where property is dedicated to the use of a religious denomination it cannot thereafter be diverted to the use of those who depart from that faith, but must remain for the use and benefit of those who ■still adhere to the faith, though they be a minority.
“The synod, being the proper body to hear, try, and determine whether a certain book of defendant minister of the local church at Muskegon is in conflict with the confession of faith of the church, its decision in the matter is final and binding upon the ■courts.” Borgman v. Bultema (syllabi), supra.
“The decision of the court below that the classis had jurisdiction to act, did act, and that defendants are bound by its decision excluding them from the denomination without right of stay of proceedings pending appeal to the supreme governing body of the church, held, justified by the record.” Holwerda v. Hoeksema (syllabus), supra.
“Civil courts will not enter into a consideration of church doctrine or church discipline nor will they inquire into the regularity of the proceedings of ■church tribunals having cognizance of such matters, since to do so 'would be inconsistent with complete and untrammeled religious liberty.” Van Vliet v. Vander Naald (syllabus), 290 Mich 365.
“Judicial interference in the purely ecclesiastical ■affairs of religious organizations is improper.
“In church disputes, courts are concerned with property rights only, and those rights may be protected by court order if occasion requires.” Berry v. Bruce (syllabi), 317 Mich 490.
“Civil courts do not interfere in matters of church ■polity that are purely ecclesiastical, but when prop erty rights are involved they are to be tested in the civil courts by the civil laws.” Holt v. Trone (syllabus), 341 Mich 169.
It is obvious that the real dispute in this case between the Hoeksema church group and the DeWolf church group has for its objective the ownership of the church property and the right to its possession and control. While courts do not interfere in matters of church doctrine, church discipline, or the-regularity of the proceedings of church tribunals,, and refuse to interfere with the right of religious-groups to worship freely as they choose, the question of the property rights of the members is a matter within the jurisdiction of the courts and may be determined by the court.
“While members of a church possess the right to-withdraw from it, with or without reason, yet they cannot take with them, for their own purposes, or1 transfer to any other religious body, the property dedicated to and conveyed for the worship of Grod under the discipline of the religious association to which said church (a voluntary association) belongs; nor-can they prevent the use of such property by those-who choose to remain in the church, and who represent the regular church organization.” Fuchs v. Meisel (syllabus), 102 Mich 357 (32 LRA 92).
“In matters of church polity purely ecclesiastical,, civil courts do not interfere, but when property rights are involved they are to be tested in the civil courts by the civil laws.” Calvary Baptist Church of Port Huron v. Shay (syllabus), 292 Mich 517.
“The judicial determination of property rights as between 2 church groups claiming church property does not constitute an unlawful interference with ecclesiastical affairs of a church.
“While membership in a church organization may be withdrawn with or without reason, such right of withdrawal does not carry with it the right to take, the church property away from the regular church 'organization nor prevent its use for purposes of worship by those who chose to remain in the church.” United Armenian Brethren Evangelical Church v. Kazanjian (syllabi), 322 Mich 651.
The instant case closely parallels the Borgman .and Holwerda Cases, supra, and is controlled by the ■decisions therein. Although we hear this chancery case de novo, we do not reach a different result than 'that which was announced by the trial court. We find that the defendants are not entitled to ownership, possession or control of the church property; ■and that the consistory of the plaintiff church, as ¡constituted with Reverend Hoeksema as president, •and Gerrit Stadt as clerk, is legally entitled to the possession and control of the physical properties of the corporation. The decree which grants plaintiff the relief prayed for, and restrains the defendants from interfering with the plaintiff corporation in its ■use of its property, is affirmed to that extent.
Consideration must be given to the plaintiff-appellee’s claim that the decree should be modified to the -extent of granting the plaintiff-appellee damages in the nature of rent for the period of time during which the defendants have excluded the plaintiff corporation from the use of its property. In that connection, the decree is silent. However, we find nothing in the record to support such a claim by the appellee, except some scant testimony as to the probable rental value of the church property. There is no proof of the amount paid by plaintiff for the use of other property, the amounts collected by the DeWolf church, or like issues which might properly have been made a matter of proof for an accounting, at the hearing of this case in the trial court. We find nothing here to justify a finding that the plaintiff should be decreed any specific sum of money :as damages to be paid by the defendants-appellants for rental during the period they have occupied the church, or otherwise. Therefore, no such modification will be made here in the decree; but an order will be entered here remanding the case to the trial court for the taking of further testimony, if necessary, as to an accounting, with authority to modify the decree as entered in that respect; and for enforcement thereof. See Komarynski v. Popovich, 232 Mich 88, at p 100, and Holwerda v. Hoeksema, supra, at p 656.
The decree as entered is otherwise affirmed, with costs to appellee.
Dethmers, C. J., and Sharpe, Smith, Reid, Kelly, Carr, and Black, JJ., concurred.
See CL 1948, § 450.178 (Stat Ann § 21.179). | [
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Black, J.
This is an appeal from decree entered in the Oakland circuit by the Honorable George B. Hartrick, circuit judge.
Defendant Moegie and one Mouw, as owners thereof, joined together in hired survey of a 99-acre rectangular-shaped tract of land preparatory to development thereof as a residential subdivision. The tract extends south from Brown road, along the east side of intersecting Giddings road in Pontiac township, Oakland county, a distance of approximately 3,000 feet and extends east from Giddings along the south side of Brown a distance of approximately 1,500 feet. The surveyor laid out the tract in conventional form of a plat and designated, on the engineered result of his work entitled “Proposed Plat of Aljo Hills,” a north-south roadway bisecting the proposed plat. The roadway was designed to provide highway access for inner lots of the proposed plat.
Lots 8 and 20, as designated on the proposed plat, lie end to end and extend from Giddings road easterly about midway between north and south boundaries of the tract. Lot 8, so designated, is the westernmost lot. It fronts on Giddings road. Lot 20, so designated, lies immediately east of and adjacent to lot 8. It is an inner lot and, without the intended bisecting roadway, has no highway access excepting such as may be provided across said lot 8. For the same reason the remaining 18 inner lots of the proposed plat have no highway access.
Reference to the above 2 lots will henceforth be by their numbers according to the proposed plat. The latter was never approved or recorded and the designated north-south roadway through the tract was never dedicated or constructed.
June 30, 1947, plaintiffs entered into an executorycontract with defendant for purchase of said lot 20. On the same day plaintiffs agreed to purchase said lot 8 from defendant by separate and corresponding executory contract. Each contract of necessity described the lot by metes and hounds. The contract for purchase of lot 8 was later paid up and plaintiffs duly received deed in pursuance thereof. They built a home on lot 8 and now reside thereon. The other contract was never fulfilled, although payments thereon were made by plaintiffs for a time to extent shown in the mentioned decree.
The proposed plat was admittedly utilized by defendant for sales purposes and a copy thereof with usual representation of intended dedication and roadway construction was delivered to Mr. Taunt in the course of negotiations leading up to execution of the aforesaid contracts.
May 31, 1951, plaintiffs filed suit in equity for rescission of the executory contract relating to lot 20. They rely on allegations of fraud and claimed right of rescission by statute (CL 1948, § 560.78a [Stat Ann 1953 Rev § 26.508(1)]), and seek money decree for amounts theretofore paid by them on the latter contract. The chancellor granted plaintiffs relief according to prayer of their bill and defendant has appealed therefrom.
Appellant contends:
1. That plaintiffs by their proofs have made no case of violation of the platting act;
2. That plaintiffs on account of waiver have made no case entitling them to rescind in equity; and
3. That the platting act, as applied to the case, violates Const 1908, art 2, § 16; US Const, Am 14.
First: There is no occasion for extended discussion of this case. Appellant was clearly guilty of a material violation of the plat act of 1929, as amended (CL 1948, § 560.1 et seq. [Stat Ann and Stat Ann 1945 Cum Supp §26.431 et seqi]), and plaintiffs, hence, were entitled to rescind. Taylor v. Fry, 255 Mich 333, cannot, be distinguished. It was relied upon by the chancellor and fully supports the decree below.
Second: Since the prohibitory features of the act are aimed at the subdivider and seller rather than the lot purchaser, contracts of sale made in violation thereof are at instance of the purchaser void. He may with or without aid of section 78a thereof so treat the contract, and no action or inaction on his part otherwise constituting waiver or estoppel will prevent him from alleging its invalidity or seeking its rescission (12 Am Jur, Contracts, § 222, p741; Geel v. Valiquett, 292 Mich 1). Appellant’s claim that plaintiffs waived rescission is therefore without merit.
Third,: As noted above, appellant claims that the plat act is unconstitutional. Without supporting or -enlightening argument but with copious general quotation she refers us to Coppage v. Kansas, 236 US 1 (35 S Ct 240, 59 L ed 441, LRA1915C, 960); Adkins v. Childrens’ Hospital, 261 US 525, 545 (43 S Ct 394, 67 L ed 785, 24 ALR 1238); Heiner v. Donnan, 285 US 312 (52 S Ct 358, 76 L ed 772), and Hitchman v. Oakland Township, 329 Mich 331. This is hardly enough to invoke consideration of possible constitutional questions and we accordingly decline to consider appellant’s contention in stated regard. As was said in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 US 752, 763 (67 S Ct 1493, 91 L ed 1796):
“They (constitutional questions) are not to be entertained upon dubious presentations or, most certainly, when the presentation reasonably may be taken as not intended to put them forward squarely and inescapably.”
To same effect is the concluding observation of this Court in Smith v. Curran, 267 Mich 413, 418 (94 ALR, 766).,' viz.,
“Aside from the fact that the present controversy is disposed of on the question of .signatures and the rule that constitutionality of an act will not be passed upon where a case may be otherwise decided, the effect of a ruling on validity has such far-reaching possibilities that we think it should not be made except upon full presentation of facts and law.”
The decree below is affirmed. Costs to appellees.
Dethmers, C. J., and Sharpe, Smith, Beid, Boyles, Kelly, and Carr, JJ., concurred. | [
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Butzel, J.
John W. Vines, plaintiff, was awarded a decree of divorce from June C. Vines, defendant, on April 20, 1948. It became final 6 months thereafter. He was awarded custody of the only child, a little girl less than 3 years old at the time. Defendant was given liberal visitation hours. On March 13, 1953, almost 5 years later, defendant filed a petition to modify the decree so as to award her the custody of the child, then about 7 years of age. She alleged that at the time of the divorce the provision in the decree in regard to the custody of the little girl was based on an agreement between the parties. Plaintiff in his answer admits that this allegation is true. Defendant further shows that on October 14, 1950, she married Carl S. Koch and the marriage has been happy and successful; that they occupy a 3-bedroom home, not far from a school; that they con-' template purchasing the home; that they have fully equipped it, including a bedroom completely furnished and available for the child. Defendant testified that at the time of the decree she was obliged to work for a living but that is no longer necessary. She claims that it is in the best interest of the child that it be given to her, its natural mother, and that notwithstanding the fact that the present environment of the child in the home of plaintiff’s parents is good, the child would be far better off if she had the custody, control and education of her own child. Testimony showed that at the time of the divorce she was suffering from ulcers of the stomach, was very much emotionally disturbed, was without funds and obliged to earn her own living and, therefore, could not give the child the care and custody required.Evidently she was thinking of the best interests of the child at the time.' She was a person of fine character, who has been doing secretarial work for the government, and there is not even the slightest criticism of her character. Plaintiff testified that defendant would take proper care of the child, his only criticism of her being that she was too meticuloris but that she was very competent. The testimony leaves no doubt that she is physically, financially, mentally and morally a proper person to take care of the child.
The case is rather unusual in that each party apparently expresses the highest regard and friendship for the other. In fact, after the divorce they met frequently in a platonic relationship, plaintiff at times remaining in defendant’s apartment overnight. She took a trip to California some time later- and she recovered both her health and her equanimity. She met a Mr. Koch, who earns a good living in an automobile factory, and subsequently she married him. He-also is fond'of the little girl. Defendant was able to save sufficient from her earnings so as "to ■ furnish the room for the little girl- in her new home and she has also stopped working, although she stated she might do some secretarial work at home. She now has every facility to give the child the loving care, education (both secular and religious), devotion and companionship that a little girl should receive from her mother. There is no question but that the little girl received very good care from her father’s parents. Plaintiff', however, is hard working, does not come home until late in the day, also works on Saturdays, and he gives the child most of his time on alternate Sundays, the mother being entitled to have the child'nvery other week end. The child’s paternal grandfather is 70 years of age, the grandmother 66. The latter properly looks after the child but she is getting old and her hearing is impaired.
We are mindful of the statute, CL 1948, § 722.541 (Stat Ann § 25.311), which provides that the mother of children under 12 shall be entitled to their custody; although a court of competent jurisdiction may deem it just and proper to make a'different order. The question before us is what is best for the child. In coming to our conclusion, we are not at all oblivious to the fact that the child should not be shuttled back and forth.
Plaintiff calls attention to Lazell v. Lazell, 271 Mich 271, where a boy over 9 years old had been brought up by his father, a former schoolteacher living on a farpa, and where the mother sought to have the decree changed to give her the custody of the child so that she could take him to the city. The boy was happy, had the constant companionship of his father, and was very fond of life on a farm. We held that the welfare of the boy was the uppermost consideration and that the judge was not in error in letting the boy remain with his father on the farm. The custody statute, supra, has been frequently before the Court. The cases are collected in Eichholtz v. Eichholtz, 319 Mich 42, where we have practically held that only when the mother is not of a good moral character or where conditions exist in her home that would make it unfit for the child, may the court well ignore the provisions of the statute and give the father custody of a child under 12. See Epstein v. Epstein, 234 Mich 200. We quote plaintiff’s own testimony:
“It is a fair conclusion that I had absolute confidence in my former wife that she would take proper care of the child.”
We do hear chancery cases de novo, but we are reluctant to reverse, except for very potent reasons, where the trial judge did not abuse his discretion in making his determination as to what was for the best interest of the child. See Sargent v. Sargent, 320 Mich 33, and the many cases therein cited. We do not believe that the judge abused his discretion in the instant case in amending the decree so as to award the custody of the child to its mother and with liberal visitation hours to the father who is to pay a weekly sum for the proper support of the child while it is with the mother.
The decree, as amended, is affirmed, but without costs.
Carr, C.J., and Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Mackenzie, J.
Plaintiff appeals as of right from an order denying its motion for summary disposition and granting defendant’s motion for summary disposition pursuant to MCR 2.116(0(10). We affirm.
This case arises out of defendant’s construction of the Central Automated Transit System (cats), commonly known as the downtown Detroit People Mover. Before construction began, it was determined that certain of plaintiff’s utility facilities were located on or under public streets within the projected route of cats, and would have to be relocated, removed, or abandoned. Plaintiff was willing to relocate its facilities, but demanded that defendant bear the cost. Defendant refused, apparently on the basis of an opinion of the Attorney General, OAG, 1981-1982, No 6004, p 436 (October 30, 1981). The parties eventually entered into an agreement whereby they essentially agreed that plaintiff would proceed with the relocation work but would sue defendant to recover its costs. This suit, and the parties’ respective motions for summary disposition, followed.
The issue presented is whether plaintiff or defendant must bear the cost of the relocation of plaintiffs public utility facilities in connection with defendant’s construction of cats. In a well-reasoned opinion, Circuit Judge Arthur Bowman held that defendant is not liable for the expenses incurred by plaintiff in the relocation of its utility facilities. We quote Judge Bowman’s opinion and adopt it as our own:
In City of Pontiac v Consumers Power Co, 101 Mich App 450, 453 [300 NW2d 594] (1980), lv den 410 Mich 908 (1981), the Court stated the general rule in utility relocation cases:
"Relocation costs must be borne by the utility if necessitated by the city’s discharge of a governmental function, whereas the expenses must be borne by the city if necessitated by its discharge of a proprietary function. Whether the utility has located its transmission facilities by virtue of an easement, franchise, plat, or other grant is irrelevant; all are treated identically.”
The rationale behind the rule was explained by the Court in New Orleans Gaslight Co v The Drainage Commission of New Orleans, 197 US 453, 460-462; 25 S Ct 471; 49 L Ed 831 (1905):
"The police power, in so far as its exercise is essential to the health of the community, it has been held cannot be contracted away .... We think whatever right the gas company acquired was subject, in so far as the location of its pipes was concerned, to such future regulations as might be required in the interest of the public health and welfare.
"In the exercise of the police power of the state, for a purpose highly necessary in the promotion of the public health, it has become necessary to change the location of the pipes of the gas company so as to accommodate them to the new public work. In complying with this requirement at its own expense, none of the property of the gas company has been taken, and the injury sustained is damnum absque injuria.”
Also see, People ex rel City of Chicago v Chicago City R Co, 324 Ill 618; 155 NE 781 (1927); Peoples Gas Light & Coke Co v City of Chicago, 413 Ill 457; 109 NE2d 777 (1952).
In Michigan this line of reasoning has been applied to the situation where a city desired to change the existing grade of a road and pursuant to this goal requested a trolly [sic] car company to remove parts of its railway ties, Detroit v The Fort Wayne & E R Co, 90 Mich 646 [51 NW 688] (1892), or where the construction of city sewers necessitated the removal of utility poles, Detroit Edison Co v Detroit, 332 Mich 348 [51 NW2d 245] (1952), or where the construction of a sewage treatment facility required the relocation of a utility’s equipment, Michigan Bell Telephone Co v Detroit, 106 Mich App 690 [308 NW2d 608] (1981), lv den 414 Mich 869 (1982). See also, Consumers Power Co v Costle, 468 F Supp 375 (ED Mich, 1979).
In each of these cases it is significant to note that the Courts by examining the relevant statutes, ordinances or agreements, found that the right of the utility to use the public road was subordinate to that of the municipality’s proposed use. In these cases the activities of the cities which necessitated a relocation of a utility’s equipment were found to be for a public purpose—or a governmental function.
By way of contrast, courts have found a govern mental agency liable for the utility’s relocation costs where the peculiar statutory scheme under which a municipality was condemning land contemplated that the city would acquire interests in land, such as the utility’s in the roads, through purchase, City of Centerline v Michigan Bell Telephone Co, 387 Mich 260 [196 NW2d 144] (1972), or where the governmental agency which required relocation was not among those agencies under the statutes pertaining to the vacation of plats, MCL 560.2 and 560.60; MSA 26.432 and 26.490, which were entitled not to pay for rélocation costs, Detroit Bd of Ed v Michigan Bell Telephone Co, 395 Mich 1 [232 NW2d 633] (1975). Significantly, in both of these cases the Court’s decisions eschewed addressing whether a municipality would ever require relocation without having to pay costs, but rather narrowly based the result achieved on the provisions of relevant statutes. Finally, a municipality has been found liable for relocation costs where its activity was not deemed to be a governmental function, City of Pontiac v Consumers Power Co, supra.
In the case at bar plaintiff argues that defendant is liable for the relocation costs for several reasons. First, it is contended that the nature of defendant is such that it cannot exercise police powers in the same manner as does a municipal Corporation such as a city, township or village. This argument is reminiscent of the reasoning used by the Court in Detroit Bd of Ed, supra, discussed above, to find the plaintiff liable for relocation costs.
The strength or weakness of plaintiffs argument is found in an examination of precisely what power has been delegated to authorities, such as defendant, under the Metropolitan Transportation Authorities Act; 1967 PA 204, MCL 124.401 et seq. [MSA 5.3475(101) et seq.], under which defendant was created.
Section 3 of the Act, MCL 124.403 [MSA 5.3475(103)] provides as follows:
"Authorities created under this act shall plan, acquire, construct, operate, maintain, replace, improve, extend and contract for public transportation facilities. An authority is a public beneñt agency and instrumentality of the state with all the powers of a public corporation, for the purpose of planning, acquiring, constructing, operating, maintaining, improving and extending public transportation facilities, and for controlling, operating, administering and exercising the franchise of such transportation facilities, if any, including charter operations as acquired.” (Emphasis added.)
Further elaboration of an authority’s powers and rights is found in [subjection 6(c) of the Act, MCL 124.406(c) [MSA 5.3475(106)(c)], which states in pertinent part that an authority may:
"Acquire and hold, by purchase, lease, grant, gift, devise, bequest, condemnation or other legal means, real and personal property, including franchises, easements or rights of way on, under or above any property within the area included within the metropolitan transportation authority .... The authority shall have the right to use space and areas over, under and upon the public streets and highways to carry out its duties subject to reasonable use. (Emphasis added.)
While the Court would agree with plaintiff that the Legislature has not conferred on defendant general police powers, the fact remains that § 3 of the Act expressly confers on authorities such as defendant, "all the power” of a public corporation for the purpose of, inter alia, constructing public transportation facilities. This unrestricted grant of "all power[”] to an authority when the authority is constructing public transportation facilities must therefore be seen as including those police powers typically delegated to other public corporations such as municipalities which pertain to the use and control of the streets. Moreover, apart from the broad grant of power to authorities for purposes of constructing public transportation facilities, [subjection 6(c) additionally, expressly confers on authorities such as defendant the specific right "to use space and areas over, under and upon the public streets” to carry out its duties such as constructing public transportation facilities. This latter express grant of power to use the streets further makes clear the legislative intent that authorities would have police power with respect to streets for the purposes enumerated in §3.
Based on the foregoing statutory analysis the Court finds that in this case, unlike that found in Detroit Bd of Ed, supra, the [Legislature has conferred on defendant powers akin to municipalities over public roads when the defendant is constructing public transportation facilities. Plaintiff's argument to the contrary is thus without merit.
The next argument of plaintiff as to why defendant ought be found liable for relocation costs is that the activity engaged in by defendant is not a governmental function. If true, the holding of City of Pontiac, supra, would dictate that defendant must pay the relocation costs. Reliance by plaintiff is placed on the holding of Borski v City of Wakefield, 239 Mich 656 [215 NW 19] (1927), which held that a city operating a common carrier of passengers for hire was engaged in a proprietary function and thus liable in a tort action.
There are some difficulties in utilizing in a nontort setting cases such as Borski, which find the operation of a common carrier for hire a nongovernmental function. First, Borski only addresses the tort liability of a governmental agency. It is unclear whether its holding ought to apply in a situation unrelated to tort liability. Furthermore, while Borski addresses the operation of a common carrier for hire, it does not pertain to the use of the streets for the construction of public transit facilities. Borski’s holding would thus appear unapplicable. In this regard, other courts which have considered the question of whether the construction of such public transit systems is a governmental function, have held such activities to be governmental rather than proprietary in nature. Peoples Gas Light & Coke Co v City of Chicago, supra, and cases cited therein. The ratio nale given is that the construction of such a system is merely an extension of the public streets which thus further accomodates [sic] public transportation. Id.
The Court therefore is of the opinion that Bor-ski, is distinguishable from the case at bar as not specifically governing whether the construction of a mass transit system is proprietary in nature. Furthermore, this Court finds the reasoning of the court in Peoples Gas Light & Coke Co persuasive, and thus adopts it. Accordingly, the Court finds the construction of the cats by defendant to be, for purposes of determining whether defendant must reimburse plaintiff, a governmental function.
The Court lastly turns to plaintiffs contention that its use of the streets stands on an equal footing with that of defendant. The Court disagrees.
As noted earlier when acting for the purpose of constructing public transportation facilities the defendant does have police powers. Moreover, there is an express unqualified grant of power to use the streets for such purposes. In contrast, however, plaintiff’s right to use the space above, below or upon the streets is not as broad.
MCL 247.183 [MSA 9.263] authorizes public utilities, such as plaintiff, to enter upon, construct and maintain telegraph, telephone and power lines, and the like, upon any public road. MCL 247.185 [MSA 9.265], however, provides that the construction and maintenance of all such telegraph, tele phone and power lines, and the like, "shall be subject to the paramount right of the public to use such public places, roads, bridges, and waters, and shall not interfere with other public uses thereof.” (Emphasis added.) Thus, whatever right conferred on the plaintiff to make use of public roads provided for in MCL 247.183 [MSA 9.263] is under MCL 247.185 [MSA 9.265] clearly subordinate to, and may not interfere with[,] the right of the public to use such roads for public uses. As noted earlier, defendant, by statutory definition contained in MCL 124.403 [MSA 5.3475(103)], is "a public benefit agency and instrumentality of the state.” Its actions therefore may be seen as those of the public. Further, as previously found, the construction of a public transit system such as cats is a governmental function. Such activities, moreover, are expressly authorized by statute[,] MCL 124.403 [MSA 5.3475(103)], and are declared to be for a public purpose. MCL 124.421 [MSA 5.3475(121)]. Defendant’s utilization of the streets therefore must be held to be for a public use within the meaning of MCL 247.185 [MSA 9.265]. It follows therefore that plaintiffs use of the streets does not stand [on] an equal footing, in this case, and is indeed subordinate to the use of the streets by defendant, in this case.
In summary of the above, the Court finds that for the limited purposes expressed in MCL 124.403 [MSA 5.3475(103)], such as the construction of public transit systems, defendant has been statutorily granted police powers akin to that of a municipality over the use of public roads. Furthermore, the Court finds that the construction of public transit systems by defendant, such as cats, is not a proprietary activity but rather in the nature of the discharge of a governmental function. Finally, the Court holds that plaintiffs use of the streets is statutorily subordinate to that of defendant’s use thereof in the case at bar. From these conclusions it follows that defendant is not liable to pay plaintiffs relocation expenses necessitated by the construction of CATS.
As noted earlier, the general rule in cases such as the one at bar is that a city need not pay a utility’s relocation costs when such expenses are necessitated by the city’s discharge of a governmental function. This rule emanates from the principle that a utility’s use of public roads is subordinate to, and thus may not interfere with the municipality’s use of the road[s] when discharging governmental functions.
In the instant case the conclusions reached above indicate that the general rule applies. The conclusion that defendant is statutorily empowered to exercise police power over public roads for the purpose of constructing mass transit facilities indicates that defendant functionally acts as a municipality for purposes of applying the rule. Furthermore, it was found that the construction of cats was a governmental function, as opposed to a proprietary one. Finally, it would appear that since [sic], under the circumstances of this case, by dint of statute, plaintiff’s use of the public roads is subordinate to that of defendants. Thus, all the constituent elements of the general rule and the principle from which it flows are present in this case. Moreover, the above conclusions indicate none of the exceptions to the general rule, as asserted by plaintiff, are present in this case. It follows therefore that the general rule does apply with the resultant finding that defendant is under no duty to pay for plaintiff’s expenses necessitated by the construction of cats. This being so, plaintiff’s motion for summary disposition must be denied and defendant’s motion for summary disposition must, in turn, be granted.
Affirmed.
Peoples Gas Light & Coke Co, supra, is especially pertinent since the case dealt with, as does the case at bar, whether a governmental agency must reimburse a public utility for the costs of relocation of the utility’s equipment due to the construction of a mass transit system.
The Court’s holding in this regard is further supported by the legislative pronouncement contained in §21 of the Act, MCL 124.421 [MSA 5.3475(121)], which provides "This act, being necessary for the public peace, health, safety and welfare, shall be liberally construed to effect the purposes hereof, which are declared to be public purposes.” (Emphasis added.) | [
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J. M. Batzer, J.
Following a jury trial in Wayne Circuit Court, defendant was convicted of four counts of criminal sexual conduct in the first degree, MCL 750.520b(l); MSA 28.788(2X1), and armed robbery, MCL 750.529; MSA 28.797. The jury found defendant not guilty of kidnapping, MCL 750.349; MSA 28.581. Sentenced to concurrent terms of forty to sixty years imprisonment on each conviction, defendant appeals each as of right.
The twenty-one-year-old victim testified as follows: She was vacuuming her automobile at approximately 6:20 p.m. on October 16, 1984, when she noticed two men staring at her. As she continued to vacuum, someone grabbed her by the back of her hair, pulled her out of the automobile, put a knife to her throat, and told her to get into her automobile. As she entered her automobile, the victim could see her assailants’ faces. She identified defendant as one of her assailants.
The victim and defendant entered the front seat of her automobile. The second man, who the victim identified as Thomas Vaughn, entered the back seat. Vaughn put a knife to the victim’s neck and threatened to kill her. As defendant drove, he ordered the victim to perform fellatio on him. Vaughn placed the knife at the victim’s stomach and she did as defendant ordered. Defendant then drove to a parking lot and stopped the automobile. The victim was ordered into the back seat and defendant and Vaughn traded places. The men dumped the victim’s purse. Vaughn drove while defendant engaged in vaginal intercourse with the victim and performed cunnilingus on her. Following these sexual acts, Vaughn stopped the automobile, traded places with the defendant, and also engaged in vaginal intercourse with the victim as defendant drove.
Defendant told the victim that Vaughn was crazy and had killed someone. Throughout the incident, defendant kept asking Vaughn for his gun, which Vaughn said was in his pocket. The victim never saw the gun.
The victim was forced to engage in several more acts of vaginal intercourse with her assailants and one act of anal intercourse with defendant before she was dropped off on the freeway. She was picked up by another driver and taken to a nearby police station. The victim estimated that she arrived there at approximately 8:15 p.m. In addition to taking her automobile, defendant and Vaughn took three gold rings, two gold necklaces, and approximately $17 from the victim.
The first issue raised is whether the trial court erred in ruling that defendant’s credibility could be impeached with evidence of a prior conviction.
MRE 609(a) provides:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination.
The decision whether to admit evidence regarding prior convictions for purposes of impeachment is within the discretion of the trial court. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). In exercising this discretion, the trial court must consider three factors: (1) the nature of the prior conviction (whether it involved an offense bearing directly on credibility, such as perjury); (2) whether the prior conviction is for substantially the same conduct for which the defendant is on trial (whether the offenses are so closely related that the jury would consider the defendant a "bad man” and convict him because of that rather than upon the evidence adduced as to the crime charged); and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by a prior conviction (whether there are alternate means of presenting a defense). People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).
Here, defendant’s attorney moved prior to trial to exclude evidence of defendant’s prior conviction for burglary. The trial court ruled that the prior conviction would be admissible to impeach defendant’s credibility because it was similar to the charge of armed robbery. Defendant did not testify.
We agree that the trial court did not correctly apply the Crawford factors. However, we do not find that this error warrants reversal.
The admission of evidence of a defendant’s prior conviction for a crime similar or identical to the crime charged does not per se result in error requiring reversal. People v Stokes, 134 Mich App 146, 148; 350 NW2d 767 (1984). Where similarity weighs against admission, the prejudicial effect of that evidence must be balanced against two other factors: the extent to which the crime is probative of credibility and the effect of admission on defendant’s decision not to testify. People v Stokes, supra. Burglary is an offense highly probative of credibility. People v Ferrari, 131 Mich App 621, 625; 345 NW2d 645 (1983); People v Rush, 118 Mich App 236, 240; 324 NW2d 586 (1982). The effect the ruling had on defendant’s decision is also highly questionable. First, defense counsel failed to establish defendant’s desire to testify. Second, the crime of burglary is dissimilar to the crime of armed robbery in that burglary does not imply violence of the presence of a weapon. Burglary also implies some kind of illegal entry of a building, conduct totally dissimilar from the criminal sexual conduct and kidnapping charges brought against defendant. Furthermore, defendant had alternate means in which to present his alibi defense. The circumstances of this case readily distinguish it from People v Williams, 413 Mich 72; 318 NW2d 462 (1982), where the Supreme Court reversed the defendant’s conviction because similar prior convictions were found admissible.
The effect the trial court’s ruling had on the decisional process is also speculative as defendant did not testify. In Luce v United States, 469 US 38, 41-42; 105 S Ct 460; 83 L Ed 2d 443 (1984), the United States Supreme Court ruled that a defendant must testify in order to preserve the issue of improper impeachment by evidence of prior convictions. The Court reasoned:
A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify.
Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. . . .
When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.
Because an accused’s decision whether to testify "seldom turns on the resolution of one factor,” . . . a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. . . .
Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. . . . Requiring that a defendant testify in order to preserve Rule 609(a) claims, will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to "plant” reversible error in the event of conviction. [Citations omitted.]
We find the Supreme Court’s reasoning highly persuasive. We hold that defendant waived the issue of improper impeachment by his failure to testify. The present record is simply inadequate for us to meaningfully review the effect of the trial court’s decision. We do not know whether defendant would have testified or what he would have testified. Nor can we determine whether the prosecutor would have actually attempted to have evidence of the prior conviction admitted. We decline to engage in such speculation.
Defendant further argues that the trial court erred in refusing to allow him to approach the jury during his attorney’s closing argument.
The victim had described defendant as having brown, saggy eyes prior to identifying his photograph. During closing argument, defense counsel requested that defendant be allowed to approach the jury for the purpose of demonstrating that his eyes were green. No evidence concerning defendant’s actual eye color had been admitted during the trial. The trial court denied defense counsel’s request.
The purpose of closing argument is to allow attorneys to comment on the evidence and to argue their theories of the law to the jury. Cf., People v Jancar, 140 Mich App 222, 233; 363 NW2d 455 (1985). Closing argument is not the time to introduce new evidence. Cf., People v Longaria, 333 Mich 696, 698-699; 53 NW2d 685 (1952). The trial court properly denied defense counsel’s request.
The next issue raised is whether the trial court erred in allowing the prosecution to present rebuttal testimony concerning an alleged statement made by defendant which had not been revealed to the defense prior to trial.
Defendant’s theory was that he could not have been involved in the crime since he was seen by a defense witness in another location at the same time the assault occurred. After defendant rested his case, the prosecution called Detective Clare Bennett. Bennett testified that defendant made the following statement following his arrest: "That was my birthday. I never left home on that day because they were having a birthday party for me.” Bennett did not record the statement in his police report. Defendant’s attorney objected to the admission of Bennett’s testimony and requested a mistrial because the prosecutor had failed to advise him of the statement prior to trial. We find that Bennett’s testimony was properly admitted. The trial court did not err in denying defendant’s motion for a mistrial.
First, the prosecutor did not violate the discovery order. This order merely required the disclosure of defendant’s written or recorded statements. The statement in question was oral and was not recorded. See People v Lytal, 119 Mich App 562; 326 NW2d 559 (1982); People v Browning (On Rehearing), 108 Mich App 281; 310 NW2d 365 (1981).
Further, the prosecutor’s failure to disclose defendant’s statement to defense counsel did not deny defendant due process. In support of his argument, defendant relies on United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976). In Agurs, the Supreme Court ruled that due process requires the prosecutor to disclose any material evidence exculpating the defendant. Defendant’s reliance on this ruling is misplaced. He is not asserting that evidence which would have created a reasonable doubt was withheld from the trier of fact. Defendant’s complaint is that his attorney was unfairly surprised by evidence which contradicted defendant’s alibi defense. The surprise could have been prevented by a more comprehensive discovery request or a pretrial interview with Bennett. Under these circumstances, we find no constitutional violation.
Third, the failure to disclose defendant’s statement prior to trial did not violate the prosecutor’s responsibility to list rebuttal witnesses. MCL 768.20; MSA 28.1043 does not require the prosecutor to specify the content of rebuttal testimony. And while the prosecutor did not specifically list Bennett as a rebuttal witness, defendant was informed that Bennett might testify as Bennett was an endorsed witness and the prosecutor’s notice listed any or all endorsed witnesses as possible rebuttal witnesses. The notice of rebuttal minimally complied with the statute. In any event, defendant waived any error by failing to object on this ground. People v Khabar, 126 Mich App 138, 141; 337 NW2d 9 (1983).
Defendant’s next claim is that the trial court erred in admitting blood-typing evidence.
A prosecution witness testified that he tested blood samples from the victim, defendant and Vaughn. He determined that defendant and Vaughn had type o blood, and that the victim had type a blood. Forty-three percent of the white male population have type o blood. Further, defendant and Vaughn were secretors, that is, their blood type could bé determined from an analysis of body fluids. Eighty percent of the population are secretors. The witness also testified that semen and vaginal fluid from the victim’s jeans and vaginal area was found to contain type a and type h blood substances. While the substances could be attributed to the victim, the witness stated that a person with type o blood produces a high concentration of type h blood substances in other body fluids. Consequently, the type h substances could also be attributed to defendant and Vaughn as both were type o secretors. A blood sample was also tested from a knife and was found to be type o blood. (The victim testified that one of her assailants had cut himself on his knife.)
Defendant does not challenge. the admission of the blood-typing evidence on the basis that it was obtained through a scientifically unreliable method. See, People v Young (After Remand), 425 Mich 470; 391 NW2d 270 (1986). Defendant objects on the grounds that the inconclusive results allegedly led to speculation and therefore prejudiced his case. This issue was not addressed in Young, supra.
In support of his argument, defendant relies on People v Sturdivant, 91 Mich App 128, 131, 134; 283 NW2d 669 (1979), lv den 407 Mich 933 (1979). In Sturdivant, this Court held that blood-typing evidence showing that the accused was included within a class of possible perpetrators without connecting him in any way to the charged offense had no probative value and its admission was error. We believe, in accord with a number of other panels of this Court considering the issue, that such evidence is relevant to show possible connections between a defendant and the criminal act. Obviously, such evidence without more cannot support a conviction. But, as it does have some incremental probative value, the jury may consider, it along with the other evidence. See, e.g., People v Proveaux, 157 Mich App 357, 366; 403 NW2d 135 (1987); People v Swinford, 150 Mich App 507, 520-521; 389 NW2d 462 (1986), lv den 426 Mich 861 (1986); People v Traylor, 145 Mich App 148, 152; 377 NW2d 371 (1985); People v Goree, 132 Mich App 693, 700-704; 349 NW2d 220 (1984); People v Thorin, 126 Mich App 293, 301-303; 336 NW2d 913 (1983); People v Camon, 110 Mich App 474, 479-480; 313 NW2d 322 (1981), lv den 414 Mich 859 (1982); People v Horton, 99 Mich App 40, 49-51; 297 NW2d 857 (1980), vacated on other grounds 410 Mich 865 (1980). See also, MRE 401. Moreover, even if admission of this testimony was error, it was harmless beyond a reasonable doubt. The victim had ample opportunity to observe defendant during the crime and later was able to identify him through a photograph. The victim’s identification evidence was sufficient to convict.
Defendant’s final argument is that he was denied a fair trial because of testimony by a third party concerning the victim’s language and conduct at the time she identified his photograph.
Prior to trial, the victim identified defendant’s photograph as being a photograph of one of her assailants. A police officer present at the identification subsequently testified that the victim claimed to be sick when she picked out defendant’s photograph. She then began to shake and ran down the hall crying. During closing argument, the prosecutor noted the importance of the officer’s testimony describing the victim’s reaction to defendant’s photograph. Defense counsel did not object to the third-party testimony or to the prosecutor’s closing argument. Defendant argues that the officer’s testimony impermissibly bolstered the victim’s identification.
Defendant’s failure to object to the admission of this testimony precludes our review, absent manifest injustice. People v McConnell, 124 Mich App 672, 679; 335 NW2d 226 (1983). We find no such manifest injustice. The victim’s testimony concerning her identification of defendant was strong. Moreover, defense counsel had an opportunity to cross-examine both the victim and the officer. Any prejudice resulting from the erroneous admission of the officer’s testimony was harmless.
Defendant’s convictions are affirmed.
A number of state courts have adopted the Luce rule. See, Page v State, 725 P2d 1082 (Alas App, 1986); State v Allie, 147 Ariz 320; 710 P2d 430 (1985); State v Garza, 109 Idaho 40; 704 P2d 944 (Idaho App, 1985); People v Redman, 141 Ill App 3d 691; 95 Ill Dec 866; 490 NE2d 958 (1986); State v Means, 363 NW2d 565 (SD, 1985); Vaupel v State, 708 P2d 1248 (Wy, 1985). See also, People v Collins, 42 Cal 3d; 228 Cal Rptr 889; 722 P2d 173 (1986); State v Harrell, 199 Conn 255; 506 A2d 1041 (1986) (prospective application). But see, State v McClure, 298 Or 336; 692 P2d 579 (1984), Commonwealth v Richardson, 500 A2d 1200 (Pa Super, 1985). The issue is presently before our Supreme Court in People v Pedrin, 130 Mich App 86; 343 NW2d 243 (1983), lv gtd 422 Mich 972 (1985).
MRE 609(a) is a slightly modified version of FRE 609(a). We do not find the modifications from the federal rule to be material here. While we recognize that Michigan courts are not bound in interpreting the Michigan Rules of Evidence by federal court decisions on federal rules, even decisions of the United States Supreme Court, Michigan appellate courts, including our Supreme Court, have found federal court decisions to be persuasive on issues involving analogous federal and state rules of evidence. See, e.g., People v Whitfeld, 425 Mich 116; 388 NW2d 206 (1986); People v Boyd, 65 Mich App 11; 236 NW2d 744 (1975). | [
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Per Curiam.
Following a jury trial, defendant was found guilty of intentionally concealing or misrepresenting the identity of a motor vehicle by altering the identification numbers, MCL 750.415(2); MSA 28.647(2). Defendant was sentenced to prison for 1½ to 4 years. Defendant appeals as of right.
Defendant first contends that the trial court improperly instructed the jury regarding prima facie evidence. Defendant did not object at trial to the instructions on prima facie evidence and, thus, this issue was not preserved for appeal. People v Kelly, 423 Mich 261, 271-272; 378 NW2d 365 (1985). A review of the instructions indicates that no manifest injustice occurred.
Next defendant argues that the presumption contained in MCL 750.415(3); MSA 28.647(3) violates his right to due process. The statute makes possession of a vehicle or auto part with the manufacturer’s serial number or engine number removed or destroyed prima facie evidence of the charged crime. A presumption in a criminal statute is regarded as irrational or arbitrary and hence unconstitutional when there is no rational connection between the proven fact and the presumed fact. To avoid a statute’s being found unconstitutional because of an irrational or arbitrary presumption, there must be substantial assurance that the presumed fact is more likely than not to flow from the proven fact on which it is made to depend. People v Rafalko, 26 Mich App 565, 569; 182 NW2d 732 (1970), citing Leary v United States, 395 US 6; 89 S Ct 1532; 23 L Ed 2d 57 (1969). In the instant case, there is a rational connection between the proven fact, possession of a defaced vehicle part, and the presumed fact, concealment with intent to mislead another. In addition, the Legislature’s determination favoring a particular presumption should be given deference by this Court when addressing questions of reasonableness. Rafalko, supra, p 569.
It should be noted that, although defendant asserts that the presumption violates his right to equal protection, defendant advanced no argument and cited no authority in support of this assertion. Therefore, the issue is not properly before this Court. People v Noble, 152 Mich App 319, 328; 393 NW2d 619 (1986).
Defendant also complains that the trial court erred in failing to quash the search warrant and suppress the evidence seized. We find no error. The police received a citizen complaint that defendant was "cutting up cars” in his back yard. Officer Henry Crump personally observed the dismantled autos in defendant’s yard, thereby verifying the citizen’s tip. The affidavit supporting the warrant recites these facts along with a reference to defendant’s prior conviction for receiving and concealing stolen auto parts.
Furthermore, the search would arguably have been proper under MCL 257.251(e); MSA 9.1951(e), which allows a police officer to inspect the records of auto parts dealers and scrap metal processors without a warrant. See People v Barnes, 146 Mich App 37; 379 NW2d 464 (1985), lv den 425 Mich 860 (1986).
Defendant’s next allegation is that he was denied effective assistance of counsel. We have reviewed each instance of alleged ineffective assistance, and we find that defendant had adequate assistance of counsel under the tests enunciated in both People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), and Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Finally, defendant contends that his conviction was not supported by sufficient evidence or, alternatively, that his conviction was against the great weight of the evidence. After review of the record, we disagree.
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Per Curiam.
Clarence Doster, Ervin Johnson, Dorothy Lamb, and others, appeal as of right from the Wayne Circuit Court’s August 26, 1985, order which affirmed the June 5, 1984, decision of the Employment Relations Board (erb) of the Civil Service Commission (esc). Appellants were black male and female employees of the Department of Mental Health (dmh) whose positions were abolished or who were demoted effective April 24, 1981. The erb’s decision reversed a grievance hearing officer’s order directing that appellants be reinstated, with back pay and full seniority, to certain positions at the dmh and ordered the Director of the dmh to redetermine which positions were to be abolished, taking into consideration the affirmative action policies of the esc and the dmh. We affirm.
This case was before this Court in Doster v Estes, 126 Mich App 497; 337 NW2d 549 (1983), lv den 418 Mich 913 (1984). At that time, we concluded that the issuance and continuance of restraining orders allowing appellants to maintain their positions was erroneous, granted summary judgment to appellees on appellants’ due process and equal protection claims, and ruled that appellants had to exhaust their administrative remedies before the courts would consider their claims that pronouncements of the Michigan Equal Employment Opportunity Council (meeoc) and the dmh regarding affirmative action created enforceable rights for appellants which were violated by appel-lees.
Following this Court’s decision, appellants filed a grievance, claiming that the Director of the dmh had failed to consider affirmative action when he abolished their positions, contrary to departmental policy. The hearing officer found that, initially, the Director of the dmh had not considered the impact on affirmative action although the director did properly consider the policy when layoffs were effectuated. There was no finding of bad faith. The hearing officer ordered that the grievants be reinstated to various classes, levels and geographic locations which he believed to be appropriate under the circumstances. The dmh and the esc appealed that order to the erb, which determined that the hearing officer’s findings of fact were supported by the record, but that the hearing officer had exceeded his authority when he reinstated the grievants to the positions he deemed appropriate. The erb noted:
The affirmative action policy is lawful, necessary, and reasonable and it does not improperly impinge on the employing departments’ constitu tional right to abolish positions for reasons of administrative efficiency.
The record confirms the factual finding of the Hearing Officer that the impact on affirmative action of Department of Mental Health’s decision to abolish the positions in question was not considered by it when it made the initial decision to abolish them. The Department did properly consider the policy when the abolishments and resulting layoffs and bumpings were effectuated. In some cases, although not for Grievants, waivers of seniority based layoffs and bumping were recommended to the Commission by the Department.
In the opinion of the Board, the Hearing Officer correctly concluded that the Department was in error in failing to consider as an element of its initial decision to abolish the positions, the effect of the Commission’s affirmative action policy.
The Board does not adopt the rationale of the Hearing Officer’s decision and concludes that, in granting relief, he erroneously, and in excess of his authority, substituted his personal judgement [sic] for that of the employing department. In effect, he ordered what he would have done had he been the department head. That consideration and decision belongs to the employing department head.
The Board sets aside the Hearing Officer’s order reinstating Grievants to various classes, levels, and geographical locations. The Board orders the Director of the Department of Mental Health to redetermine which of the positions involved in this case are to be abolished, and in doing so, to take into consideration the affirmative action policy of the Civil Service Commission and Affirmative Action Plan of the Mental Health Department.
On August 24, 1984, appellants filed a petition for review in Wayne Circuit Court, and on August 2, 1985, that court issued an opinion affirming the erb’s decision.
Review of Civil Service Commission decisions shall include the determination whether such decision was authorized by law, and in cases where a hearing is required, whether it is supported by competent, material and substantial evidence on the whole record, Davis v Civil Service Comm, 148 Mich App 668, 671; 384 NW2d 837 (1986).
Appellants’ first argument on appeal is that the erb was not authorized by law to vacate the decision of the hearing officer in view of the uncontested finding that departmental policy had been violated by the Director of the dmh in abolishing certain positions. First, they contend that, in a Department of Civil Service grievance proceeding, a hearing officer has the authority to issue a remedy, including reinstatement and awards of lost wages. While this may be so, it is equally true that the erb, the appellate body of the esc, is not bound by the hearing officer’s decision. The Civil Service Commission has plenary authority to determine the procedures by which grievances will be resolved, Viculin v Dep’t of Civil Service, 386 Mich 375, 393; 192 NW2d 449 (1971). The esc may modify the relief granted by a hearing officer, Groehn v Corporation & Securities Comm, 350 Mich 250, 260-261; 86 NW2d 291 (1957). See also lams v Civil Service Comm, 142 Mich App 682, 691-692; 369 NW2d 883 (1985). Thus, where a hearing officer has erred in granting relief, the erb may rectify that error. Insofar as appellants’ argument suggests that the erb can overturn the hearing officer’s grant of relief only where his factual findings are not supported by competent, substantial and material evidence on the whole record, it must be rejected.
Second, appellants reason that the hearing officer’s decision was not in violation of law. We disagree. Const 1963, art 11, § 5 gives state agencies the authority to abolish positions for reasons of administrative efficiency. See Hutchinson v Dep’t of Mental Health, 108 Mich App 725, 727-728; 310 NW2d 856 (1981), lv den 413 Mich 929 (1982). Since the decision to abolish positions could only be made by the Director of the dmh, the erb’s solution—remand to the Director of the dmh to consider affirmative action in deciding whether to abolish appellants’ positions—was the correct course of action. The director ■ did reconsider his actions, and we must presume, since no evidence has been presented to the contrary, that he performed his job properly. See State Racing Comm’r v Wayne Circuit Judge, 377 Mich 31, 36; 138 NW2d 764 (1966).
We also note that the hearing officer misconstrued appellees’ affirmative action policies. Those policies allowed for, but did not mandate, the use of affirmative action waivers.
Appellants’ remaining argument on appeal is that the pronouncements of the meeoc created rights in individual state classified employees that were enforceable through court action. See Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). In our decision in Doster, supra, n 1, pp 513-514, we noted that it was unlikely that pronouncements of the meeoc could create rights in the individual state employees under a Tous-saint theory.
We need not now determine if such a theory may ever be used, because the Wayne Circuit Court lacked jurisdiction to hear appellants’ Toussaint claims. A wrongful discharge action against the State of Michigan must be filed in the Court of Claims, MCL 600.6419; MSA 27A.6419; Watassek v Dep’t of Mental Health, 143 Mich App 556, 564-565; 372 NW2d 617 (1985), lv den 424 Mich 878 (1986).
Affirmed. | [
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Weaver, J.
Defendant was convicted by a jury of assault with a dangerous weapon, MCL 750.82; MSA 28.277, and failure to stop at the scene of a personal injury accident, MCL 257.617a; MSA 9.2317(1), and was sentenced to one year of probation with six months to be spent in the county jail. Defendant appeals as of right. We affirm.
The facts leading to defendant’s conviction arose from an argument and fistfight between defendant and Gary Joseph Harris, Jr., during which defendant sprayed Harris with a fire extinguisher. Harris then covered his eyes and went back to his own car and was leaning against the car when defendant drove up in his car and pinned Harris between the two cars. After Harris shouted and pounded on the hoods of both cars, defendant finally backed off and drove away. As a result of the incident, Harris was hospitalized for eight days. Defendant claimed that the incident was an accident. On appeal, he argues trial court error (1) in allowing two convictions and (2) in instructing the jury.
Defendant first argues that it is contrary to legislative intent and the rules of statutory construction to convict, on the same facts, first of committing an intentional assault and then of leaving the scene of a personal injury accident, since the word "accident” only applies to unintentional injury. We disagree.
We know of no cases deciding whether MCL 257.617a; MSA 9.2317(1) defines accident to include intentional or unintentional conduct. However, when holding an automobile insurer liable to pay damages incurred by its insured in an accident, this Court has found accident to include a defendant’s intentional behavior so long as the injured person is not the aggressor. State Farm Mutual Automobile Ins Co v Coon, 46 Mich App 503, 507-508; 208 NW2d 532 (1973). Where the term accident appears in criminal statutes which forbid leaving the scene of a personal injury accident, courts in other jurisdictions have interpreted accident to include intentional conduct, reasoning that such statutes are not concerned with the cause of an accident but are intended to include all automobile collisions. State v Smyth, 121 RI 188; 397 A2d 497, 499 (1979); State v Parker, 299 Or 534, 542-543; 704 P2d 1144, 1148-1149 (1985). See also People v Laursen, 175 Cal App 3d Supp 1, 6-7; 222 Cal Rptr 122, 125-126 (1985); State v Masters, 106 W Va 46; 144 SE 718 (1928). We agree with this interpretation. Therefore, we are not persuaded by defendant’s argument that the verdicts were inconsistent or illegal and find that a new trial is unwarranted.
Defendant also argues that the trial court had stated that the charge of leaving the scene could be submitted to the jury as an alternative theory, and that error requiring reversal occurred when the trial court did not so instruct the jury. We find no merit in this argument.
At trial, defense counsel moved for a directed verdict on the basis that charges of felonious assault and leaving the scene of a personal injury accident were inconsistent. The trial court denied this motion, stating that the word accident did not relieve the charge from being submitted to the jury as an alternative theory; if the jury should find the incident not to be an assault, there was still evidence that it was an accident and that defendant had fled from it. When instructing the jury, the court instructed first regarding assault, then regarding leaving the scene of an accident, and did not say that the charges were alternative. When defense counsel later objected in chambers, the court stated that it felt the jury could find defendant guilty of both assault and leaving the scene, and that there was no double jeopardy problem because the two constituted different crimes.
Thus it is apparent that the trial judge never promised defendant that he would instruct the jury that the charge of leaving the scene could be submitted to the jury as an alternative theory. It is also apparent that defense counsel never relied on such an alleged promise, since his closing statement to the effect that defendant had in fact struck Harris with the car merely comported with defendant’s own testimony.
Affirmed.
MCL 257.617a; MSA 9.2317(1) provides in pertinent part:
(1) The driver of a vehicle who knows or who has reason to believe that he has been involved in an accident . . ., resulting in injury to a person shall immediately stop his vehicle at the scene of the accident and shall remain there until the requirements of section 619 are fulfilled. . . .
(2) A person failing to stop or to comply with those requirements shall be guilty of a misdemeanor, punishable by imprisonment for not more than 1 year ....
MCL 750.82; MSA 28.277 provides:
Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony. | [
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Per Curiam.
Plaintiff Raynard Jones appeals from the Genesee Circuit Court’s order of March 1, 1985, denying his motion for reconsideration of the court’s order granting summary judgment to defendant Allstate Insurance Company. We reverse.
Plaintiff alleged that on January 12, 1983, he was occupying his father’s 1974 Plymouth, which was insured by defendant. According to plaintiff’s complaint, Ronald Thompson discharged a firearm into the driver’s side of the vehicle, causing plaintiff to suffer serious personal injuries.
Defendant moved for summary judgment, contending that plaintiff’s injuries did not arise out of the ownership, operation, maintenance or use of a motor vehicle, as required by MCL 500.3105(1); MSA 24.13105(1). Defendant relied upon the affidavit of Roy Yingling, which reads as follows:
I,Roy Yingling, being duly sworn, depose and say:
1. That I am the claims representative assigned to handle the claim made by Plaintiff, Raynard Jones, for personal protection insurance benefits.
2. That I am fully aware of the facts and circumstances surrounding the subject incident, and that I have conducted a full and reasonable investigation of same.
3. That I am aware of no facts or allegations which make the subject insured vehicle anything more than the situs of the incident, and in no way is the subject vehicle implicated as an instrumentality of the harm alleged by Plaintiff Jones.
4. That pursuant to the allegedly applicable policy of automobile insurance, as it conforms to MCLA 500.3105(1), payments of personal protection insurance benefits are only to be made where an injury arises out of the "use, operation, or maintenance of a motor vehicle”.
5. That based upon my training and experience in the area of automobile accident claims adjustment, it was, and is, my considered opinion that no benefits are due and owing to Plaintiff Raynard Jones as a result of the subject January 12, 1983 shooting incident, for the specific reason that the involvement of a motor vehicle in that instance was merely fortuitous, and further, because of [sic] the insured automobile was clearly not an instrumentality of harm.
Plaintiff submitted the affidavit of David S. Grant, Jr., which reads as follows:
I, David S. Grant, Jr., being duly sworn, depose and say:
1. That I am an attorney-at-law duly licensed to practice in the State of Michigan, County of Gene-see.
2. That I represented a certain Ron Thompson in a criminal action brought against him for a shooting incident that occurred in the City of Flint on or about the 12th day of January 1983.
3. That I am fully aware of the facts and circumstances surrounding that incident, by virtue of my interviews with the client and my review of the investigation of the incident taken by the Detective Division of the Flint Police Department.
4. That if called upon to testify, I will be competent to state under oath that Ron Thompson did not discharge his fírearm at Raynard Jones, but rather at the vehicle in which Raynard Jones was sitting and that he shot at that vehicle because it had been driven upon his private property and that he resented the encroachment of the vehicle on his private property and that he ñred upon said vehicle in anger while in an irrational state of mind. [Emphasis added.]
Plaintiff also submitted a police report of the incident, which stated, in pertinent part:
At 11:42 pm, Wednesday, January 12, 1983, District 203, Officers Kenneth Sparks and Robert Studer, received a radio call from Officer Terrill Bravender, dispatcher, to 4533 Trumbull regarding a car hitting a house and someone being shot. On arrival, the officers found that the incident had taken place at 4529 Trumbull. The officers observed a 1974 Plymouth, Michigan license FXL 550, setting [sic] under the severely damaged northeast corner of the garage at that address. The auto appeared to have run through the wall and struck the chain link fence on the north side of the lot. There was a male/black subject, latter [sic] identified as the victim, Raynard Jones, m/b/ 20, 1379 E. Downey, who, according to Flint Fire Department Unit 1170, Paramedics Michael Murphy and Mark Warren, and Unit 161 personnel, David Wolfenden and Jack Smyth, appeared to have been shot in the left side. The officers were unable to talk to Jones as the Flint Fire Department paramedics were administering first aid to him. Jones was subsequently transported to Hurley Medical Center by Flint Fire Department Ambulance 161. At the hospital, he was examined by Dr. Tommie Stevens and Dr. Michael Macksood and was then transferred to Surgery. Officers Stu-der and Sparks were approached by one Ronald Thompson. Officer Studer asked Thompson if he had witnessed any part of the incident. Thompson said he had shot the gun (Jones), and that he (Thompson) was unsure of the name. Thompson told the man that he had the wrong house. Thompson said he then heard a car in his driveway with the horn blowing constantly. Thompson then opened the door and saw the 1974 Plymouth, FXL 550, containing a male/black subject. The man in the car was waving what looked to be a gun at him (Thompson). Thompson said he then grabbed his riñe, which was located just inside his front door, pointed it in the direction of the car and ñred it once at the car. Thompson said he then saw the car go forward and then heard a loud crash. The officers obtained Thompson’s i.d. Thompson invited the officers in to his house and pointed to the rifle, which was setting [sic] in the kitchen doorway against the wall. Thompson said he had used that rifle to shoot at the car. Sgt. Jerry Nugent arrived on the scene and advised the officers to take Thompson to the Criminal Investigations Bureau. Nugent then contacted the Patrol Desk and had Homicide Squad officers notified. [Emphasis added.]
A no-fault insurer must pay benefits for accidental bodily injury "arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle,” MCL 500.3105(1); MSA 24.13105(1).
In Thornton v Allstate Ins Co, 425 Mich 643, 659-660; 391 NW2d 320 (1986), the Supreme Court noted:
In drafting MCL 500.3105(1); MSA 24.13105(1), the Legislature limited no-fault pip benefits to injuries arising out of the "use of a motor vehicle as a motor vehicle.” In our view, this language shows that the Legislature was aware of the causation dispute and chose to provide coverage only where the causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or "but for.” The involvement of the car in the injury should be "directly related to its character as a motor vehicle.” Miller v Auto-Owners, supra [411 Mich 633; 309 NW2d 544 (1981)]. Therefore, the first consideration under MCL 500.3105(1); MSA 24.13105(1), must be the relationship between the injury and the vehicular use of a motor vehicle. Without a relation that is more than "but for,” incidental, or fortuitous, there can be no recovery of pip benefits.
An assault by an armed assailant upon the driver of a car is generally not the type of conduct that is reasonably identifiable with the use of an automobile, O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979), lv den 406 Mich 1014 (1979); DAIIE v Higginbotham, 95 Mich App 213; 290 NW2d 414 (1980); Hamka v Automobile Club of Michigan, 89 Mich App 644; 280 NW2d 512 (1979); Ciaramitaro v State Farm Ins Co, 107 Mich App 68; 308 NW2d 661 (1981), lv den 413 Mich 861 (1982); Shaw v Allstate Ins Co, 141 Mich App 331; 367 NW2d 388 (1985); Thornton, supra, 646. However, when an assault is directed at the vehicle itself, rather than the driver, the causal relationship is sufficient for liability, Mann v DAIIE, 111 Mich App 637; 314 NW2d 719 (1981), lv den 414 Mich 903 (1982); Saunders v DAIIE, 123 Mich App 570; 332 NW2d 613 (1983). In such a case, the automobile is not merely the situs of the injury, and there is a direct relation between the functional character of the motor vehicle and the injuries. See Thornton, supra, 660.
In this case, plaintiff has presented evidence indicating that the assault was directed not at him, but at his automobile. If that is so, defendant may be liable to him for his injuries. Because a material factual issue was presented, we reverse the trial court’s grant of defendant’s motion for summary judgment and affirm the trial court’s denial of plaintiffs motion for summary judgment.
Affirmed in part and reversed in part.
Bronson, J., did not participate. | [
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Per Curiam.
In Docket No. 88107, plaintiff appeals from the circuit court’s order granting summary disposition of her claim for abuse of process. In Docket No. 89023, plaintiff appeals from the court’s subsequent order in the matter taxing costs and attorney fees. We affirm the grant of summary disposition but we reverse the latter order and remand for a redetermination of costs and attorney fees.
Plaintiffs complaint alleged that defendants committed an abuse of process by obtaining an ex parte order extending the expiration date for discovery of certain of plaintiffs medical records and by attempting to use authorizations signed by plaintiff to obtain the medical records after the original expiration date. These allegations pertained to plaintiffs prior suit for damages for personal injuries sustained in an automobile accident. In that suit, the trial judge entered an order on January 22, 1985, that required plaintiff to execute authorizations for the release of medical records, which were to be valid through the April 8, 1985, anticipated trial date. The order further provided that "defendant shall thereafter be allowed to renew the authorization to a later specific date in the event that the trial is continued in this matter.”
On April 10, 1985, the trial judge signed an ex parte order extending the time period for the releases. When defendants attempted to obtain additional medical records pursuant to the ex parte order, the attorney representing both Che-boygan Community Memorial Hospital and one of plaintiffs treating physicians contacted plaintiff and her attorney, who together revoked the authorizations.
On April 12, 1985, defendants Brewbaker and Kozial moved for dismissal on the ground that plaintiff failed to comply with the discovery order. The trial court found that plaintiff had violated the ex parte order by refusing to facilitate defendants’ discovery efforts. Pursuant to MCR 2.314, the court required that plaintiff choose to either proceed to trial without adducing any medical evidence or allow her case to be dismissed without prejudice. Plaintiff chose the latter course.
On May 10, 1985, plaintiff filed her complaint for abuse of process. In response, all defendants moved for an order granting summary disposition and for an award of costs and attorney fees. On October 15, 1985, the court entered an order of summary disposition pursuant to MCR 2.116(0(10), but a decision on the request for attorney fees was deferred until a later time. On October 17, 1985, plaintiff filed in this Court a claim of appeal (Docket No. 88107). On November 18, 1985, the trial court entered a further order awarding costs and attorney fees to defendants. On November 26, 1985, plaintiff filed a separate claim of appeal from that order (Docket No. 89023). This Court consolidated the two appeals.
Plaintiff argues on appeal that the trial court erred by granting summary disposition because the obtaining of an ex parte order was itself an abuse of process. In Friedman v Dozorc, 412 Mich 1, 30; 312 NW2d 585 (1981), the Court set forth the elements of the tort of abuse of process:
To recover upon a theory of abuse of process, a plaintiff must plead and prove (1) an ulterior purpose and (2) an act in the use of process which is improper in the regular prosecution of the proceeding.
A meritorious claim of abuse of process contemplates a situation where the defendant has availed himself of a proper legal procedure for a purpose collateral to the intended use of that procedure, e.g., where the defendant utilizes discovery in a manner consistent with the rules of procedure, but for the improper purpose of imposing an added burden and expense on the opposing party in an effort to conclude the litigation on favorable terms. Thus, in Three Lakes Ass’n v Whiting, 75 Mich App 564, 569-575; 255 NW2d 686 (1977), it was held that abuse of process was properly pled by an allegation that the defendant offered to dismiss an action for damages without the need to pay compensation if the plaintiff would cease opposition to the development of a condominium project. The ulterior purpose of stifling opposition was collateral to the defendant’s maintenance of a lawsuit for the recovery of damages as compensation. Cf. Young v Motor City Apartments Limited Dividend Housing Ass’n No 1 & No 2, 133 Mich App 671, 678-683; 350 NW2d 790 (1984).
Furthermore, the improper ulterior purpose must be demonstrated by a corroborating act; the mere harboring of bad motives on the part of the actor without any manifestation of those motives will not suffice to establish an abuse of process. Young, supra, 682-683; Early Detection Center, PC v New York Life Ins Co, 157 Mich App 618, 629-630; 403 NW2d 830 (1986).
There is no hint of any purpose other than the need for discovery underlying defendants’ efforts to obtain the ex parte order in the instant case. Since it is abundantly clear that the discovery of medical evidence in an action for personal injuries is entirely consistent with the purposes furthered by the Michigan Court Rules of 1985, we do not hesitate to affirm the trial court’s order of sum mary disposition. The gist of plaintiff’s,argument appears to be that the ex parte order was procedurally defective. Without expressing an opinion on the propriety of that procedure, we emphasize that procedural irregularities do not constitute a basis for the tort of abuse of process, which is concerned with the proper use of procedure for illegitimate aims. Plaintiffs recourse was to appeal from the allegedly defective discovery order.
Plaintiff also argues that her filing of a claim of appeal in Docket No. 88107 divested the trial court of jurisdiction to subsequently award attorney fees. We agree.
MCR 7.208 provides in part:
(A) Limitations. After a claim of appeal is filed or leave to appeal is granted, the trial court or tribunal may not set aside or amend the judgment or order appealed from except by order of the Court of Appeals, by stipulation of the parties, or as otherwise provided by law.
(B) Correction of Defects. Except as otherwise provided by rule and until the record is filed in the Court of Appeals, the trial court or tribunal has jurisdiction
(1) to grant further time to do, properly perform, or Correct any act in the trial court or tribunal in connection with the appeal that was omitted or insufficiently done, other than to extend the time for filing a claim of appeal or for paying the entry fee or to allow delayed appeal;
(2) to correct any part of the record to be transmitted to the Court of Appeals, but only after notice to the parties and an opportunity for a hearing on the proposed correction.
After the record is filed in the Court of Appeals, the trial court may correct the record only with leave of the Court of Appeals.
Consistent with the foregoing, it has been held that the filing of a claim of appeal divests the circuit court of its jurisdiction. Moffit v Sederlund, 145 Mich App 1, 7; 378 NW2d 491 (1985), lv den 425 Mich 860 (1986). We conclude that the trial court’s order awarding costs and attorney fees was, in actuality, an amendment of the final order granting summary disposition. Unlike the trial court’s judgment in Lincoln v Gupta, 142 Mich App 615, 630-631; 370 NW2d 312 (1985), lv den 424 Mich 874 (1986), the trial court here did not indicate that it would award costs and attorney fees in its original order, and the subsequent order was not a "ministerial task of documenting the costs and fees.” Id., 631.
The circuit court’s order of summary disposition is affirmed (Docket No. 88107). The order awarding costs and attorney fees is reversed without prejudice to defendants’ right to renew their motion for costs and fees on remand (Docket No. 89023).
Affirmed in part and reversed in part. We do not retain jurisdiction.
The grant of summary disposition was based on MCR 2.116(0(10). A motion pursuant to MCR 2.116(0(10) may only be granted upon a showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law: The purpose of the motion is to determine whether there is any factual support for the plaintiffs claim. Linebaugh v Berdish, 144 Mich App 750, 753-754; 376 NW2d 400 (1985). Plaintiff argues that the trial court’s order granting summary disposition was procedurally defective because defendants did not submit affidavits in support of their motion. MCR 2.116(G)(3) requires that the movant submit documentary evidence in support of its factual contentions. In view of the nature of an abuse of process claim, defendants satisfied their burden by submitting the transcript of the evidentiary hearing on the motion to impose sanctions for noncompliance with the discovery order.
In any event, plaintiffs claim fails because the allegations of her complaint failed to state a legally sufficient claim for abuse of process; notwithstanding any disputed factual issues. Thus, the outcome of this case is the same, regardless of whether the trial court granted summary disposition pursuant to MCR 2.116(C)(8) for failure to state a claim or pursuant to MCR 2.116(0(10) because there was no material issue of fact and defendants were entitled to judgment as a matter of law. | [
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Gribbs, J.
This is a consolidated appeal from the convictions and sentences of defendants, Jon Foreman and Wendy Kay Kirkpatrick. While the defendants had separate trials, the incidents which gave rise to their convictions arose out of the same events. As a result, most of the testimony at both trials was the same. In their appeals as of right, defendants raise three common issues and defendant Kirkpatrick raises two separate issues.
On May 23, 1985, defendant Jon Foreman was convicted by a jury of four counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), and three counts of second-degree criminal sexual conduct, MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). Foreman was sentenced to concurrent prison terms of twenty to forty years for each esc I count, and ten to fifteen years for each esc 11 count. Foreman appeals as of right. We affirm.
On August 1, 1985, defendant Wendy Kay Kirkpatrick was convicted by a jury of three counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), and two counts of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). Kirkpatrick was. sentenced to concurrent prison terms of twenty to forty years for each esc I conviction and ten to fifteen years for each esc n conviction. Kirkpatrick appeals as of right. We affirm.
The incidents which gave rise to the charges against defendants occurred during the spring and summer of 1984. The victims of the criminal sexual conduct, a boy, age six, and a girl, age five, are the children of defendant Jon Foreman, with whom defendant Kirkpatrick was living during that period. Melinda Foreman, the children’s mother, testified that her marriage to defendant began to break up in late 1983 or early 1984, when she learned that Foreman and Kirkpatrick, who is Mrs. Foreman’s niece, were having an affair. Divorce proceedings were initiated, and Mrs. Foreman was granted temporary custody with Foreman having visitation every other weekend. In May, 1984, when the visitation order was entered, defendants were living together in an apartment. Foreman did not want the children the whole weekend but would pick them up on Saturday mornings and return them Saturday evenings. Foreman had one visitation in May, and two in June and July, 1984. In August, defendant Foreman’s truck broke down and he did not come for the children again until the end of August or beginning of September, 1984. At that time, the girl refused to go with defendant, but the boy went on that visit. Mrs. Foreman did not allow any visitation after that visit. According to the children, defendant Kirkpatrick was present during all the visitations.
Mrs. Foreman testified that, after the visitations began, the children’s behavior changed. They became argumentative, nervous and frightened. As visitation days would approach, they would begin to cry and say that they did not want to visit their father. They also began to cry in their sleep and have nightmares. Both children, although toilet trained, began wetting their pants and wetting their beds. Marilyn Anderson, Melinda Foreman’s sister, who saw the children frequently during July, August and September of 1984, also testified as to the changes she noticed in the children’s behavior.
The testimony of the boy, age seven at the time of trial, showed numerous instances of sexual abuse. On a number of occasions, with Jon Foreman present, he was forced to perform oral sex on Wendy Kirkpatrick. He was made to suck her vagina, rectum, and breasts. He was also forced to perform oral sex on his father, as well as Tammy Kirkpatrick, Wendy’s sister. On one occasion, Foreman stuck a wire up the boy’s rectum.
The boy, using anatomically correct dolls, testified that he was forced to perform sexual intercourse as well as sodomy with Wendy Kirkpatrick. He was also forced to have anal intercourse with his sister. Wendy would also put her fingers in his rectum. The boy testified that he was repeatedly threatened with harm by both defendants if he did not want to perform these sexual acts or if he told anyone what they were doing. He said that Foreman threatened to kill his mother and aunt as well as him if he told anyone.
The girl, age six at the time of trial, also testified. She, using anatomically correct dolls, testified as to the sexual abuse inflicted upon her. She testified that Jon Foreman attempted to penetrate her rectum with his penis. Foreman repeatedly threatened to murder her if she told anyone. She was also forced to perform several sexual acts with defendant Kirkpatrick and have anal intercourse with her brother. Kirkpatrick also put her fingers in the girl’s vagina and rectum. She further testified that she observed her brother engage in sexual acts with Wendy and Jon Foreman. She testified that Jon Foreman put a wire in her vagina and rectum. Additional facts will be presented where relevant.
The first issue raised by each defendant is identical. They argue that the trial court erred in admitting, as excited utterances, the hearsay statements of the children through the testimony of Marilyn Anderson and Melinda Foreman.
One day in September, 1984, Marilyn Anderson, Melinda Foreman’s sister, was baby-sitting the girl while her brother was at school. Over defendants’ objection in each trial, the trial court allowed Anderson to testify as to the statements made by the children.
When Anderson awakened the girl for breakfast at about 9:30 a.m. or 10:00 a.m., she was crying and when she came into the kitchen she was still crying. Later, according to Anderson, the girl, without prompting, told her about the sexual incidents that had happened at Jon Foreman’s apartment. Anderson testified as to what was said by the girl.
That evening, the boy, after having learned that his sister had been talking about the events in question, told his mother about the activities that had been going on at his father’s apartment, and Melinda Foreman related these statements before the jury in each trial over defense counsels’ objections.
Defendants assert that the testimony of Anderson and Foreman relating out-of-court statements of the children was erroneous, citing People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982). In Kreiner, our Supreme Court held that the "tender years” exception to the hearsay rule, which allowed a young victim’s out-of-court statements to be admitted to corroborate testimony at trial, did not survive the adoption of the Michigan Rules of Evidence. Id. at 377. Such statements, however, might be admissible under the excited utterance exception if the proper foundation is established. Id. at 379.
The Supreme Court, in People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979), set forth three criteria which must be met before a statement can be admitted into evidence as an excited utterance under MCR 803(2): (1) the statement must arise out of a startling event; (2) it must be made before there has been time for contrivance or misrepresentation; and (3) it must relate to the circumstances of the startling event.
Defendants contend that the trial court imper-missibly relaxed Gee’s foundational requirements because of the children’s young ages, contrary to Kreiner, supra. Kreiner, however, does not require that the age of a declarant be ignored when determining whether a statement qualifies as an "excited utterance.” Rather, it requires that the three Gee criteria be applied whenever that determination is being made. The criterion most commonly at issue in cases involving MRE 803(2), and the only criterion we find at issue here, is the second one, which requires that the statement be made before enough time has passed for contrivance or misrepresentation. In analyzing whether a declar- ant had time to or may have contrived the "spontaneous” statement, the age and mental abilities of the declarant, as well as the startling event, are natural considerations. For some declarants, the passage of one minute between a startling event and a related statement may be enough to disqualify the statement as an "excited utterance.” For other declarants, such as those of young age or with mental deficiencies, the passage of days or weeks may not negate the spontaneity of a statement. A distinction must be made between admission of hearsay merely because of the tender age of the declarant, which would be error, and admission based on circumstances showing a low probability that the hearsay statement was contrived or misrepresented. In both cases, the trial court found the children, because of their young ages and because of the nature of the events alleged in their statements, had little ability to fabricate.
Specifically, in defendant Kirkpatrick’s case, the trial court ruled:
The whole purpose of this exception ... is to prevent persons from making up stories after an event has occurred. That’s one of the reasons that time is essential in determining whether it’s an excited utterance. But it’s extremely hard for this Court to believe that children of five and six years old could make up stories involving sexually explicit events without those things[’] happening. It’s just very difficult for me to believe that.
The trial judge ruled similarly in defendant Foreman’s case, noting that the abuse was continuing, that the childrens’ demeanor had changed, that the statements were spontaneous and that the children would have had great difficulty in fabricating these stories. Thus, the statements were trustworthy.
There is no set length of time within which statements must be made following a startling event. The length of time between the startling event and the statement is a significant factor, but its significance depends largely on the nature of the event. People v Zysk, 149 Mich App 452, 457; 386 NW2d 213 (1986). In People v Soles, 143 Mich App 433; 372 NW2d 588, lv den 424 Mich 863 (1985), five days passed before a social worker and a detective gained the trust of the six-year-old victim and obtained a description of the assault. In approving the trial court’s admission of the child’s hearsay statements, the Court wrote:
Generally, a time lapse of five days between the event and the statement would provide more than a sufficient opportunity to contrive and misrepresent an incident, and thus a statement given under such circumstances would clearly be inadmissible. However, where such a heinous assault is committed upon a child so young, it is not beyond reason to suggest that she could remain so traumatized by the incident as to be incapable of contriving or misrepresenting the crimes committed to her person for a period of five days or longer. [Id. at 438.]
In People v Draper, 150 Mich App 481; 389 NW2d 89 (1986), statements made by the three-year-old victim one week after the incident were admitted. This Court again found no error, noting that the statements were not responses to questions but were made spontaneously during a physical examination and that the event was sufficiently startling that the excitement it caused could have lasted a week. Id. at 486. The emotional state of the victim should also be taken into account when determining whether there was time for contrivance. Zysk, supra at 457.
We believe there was sufficient foundation for admission of the hearsay evidence in both cases under the "excited utterance” exception. Although the delay of approximately one month between the last visitation and the day when the statements were made is longer than the delays in any of the cases cited, this case, unlike the cited cases, involves sexual abuse that was ongoing for a period of three to four months. The testimony of Melinda Foreman and Marilyn Anderson that the children became agitated and nervous in behavior over this period and began wetting their pants strongly suggests that the children were in a continuous state of excitement, even trauma, and were in that state when the statements were made. The delay in telling anyone about their experiences with their father and Kirkpatrick was apparently due to the threats to harm them if they did not go along with the activities or told anyone about the activities. The sexual explicitness of the events described by the children was quite beyond the experiences of children of such young ages. Finally, the testimony at trial indicated that the statements were made spontaneously, not in response to Ms. Foreman’s or Ms. Anderson’s questions, and that the children were upset and excited when they made the statements. Under these conditions, it is extremely doubtful that the children’s statements were fabricated. We find no error.
Each defendant also raises an identical second issue. They assert that the testimony of Children’s Protective Services caseworker Brenda Woolard, that the children’s behavior was consistent with the behavior of young sexual abuse victims, was erroneously admitted. Woolard, after inquiry into her training and experience in the area of child abuse, testified that it was not unusual, but very common, for children to endure weeks or months of abuse before reporting it. Citing People v Pullins, 145 Mich App 414; 378 NW2d 502 (1985), defendants argue that Woolard’s testimony constituted improper and inadmissible testimony of rape trauma syndrome. In Pullins, the testimony was found inadmissible because it was offered to prove that a rape in fact occurred. Defendants’ reliance on Pullins, however, is misplaced. Woolard’s testimony was not offered to prove that the sexual abuse occurred. Instead, the testimony was presented to explain that, if any sexual abuse occurred, it would not be uncommon for the children to fail to promptly report it. This was an entirely proper purpose. See People v Stull, 127 Mich App 14, 19; 338 NW2d 403 (1983), lv den 422 Mich 939 (1985).
Defendants have also argued that Woolard’s testimony invaded the fact-finding process of the jury, contrary to People v McGillen #2, 392 Mich 278; 220 NW2d 689 (1974), and People v Izzo, 90 Mich App 727; 282 NW2d 10 (1979), lv den 407 Mich 935 (1979). Both cases are inapplicable because nowhere in Woolard’s testimony did she render an opinion as to whether the children had been sexually assaulted or opine as to whether the children were being truthful in their accounts of sexual abuse. See People v Skinner, 153 Mich App 815, 820-821; 396 NW2d 548 (1986); Cf. People v Smith, 425 Mich 98; 387 NW2d 814 (1986). The trial court did not err in allowing the testimony of Brenda Woolard.
Defendants’ third common issue is that error requiring reversal occurred because of improper remarks made by the prosecutor during closing argument. Both defendants argue that the prosecutor improperly vouched for the credibility of the Department of Social Services and the police and improperly argued that the jury should believe those agencies because they would not have pushed forward with the case if they did not believe the stories of the children. Defendant Kirkpatrick also argues that the prosecutor improperly vouched for the credibility of the children.
Neither defendant, however, made any objection at trial to the prosecutor’s closing argument. Thus, appellate review of the prosecutor’s closing remarks is foreclosed unless the prejudicial effect was so great it could not have been cured by an appropriate instruction and our failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich 1, 15-16; 360 NW2d 841 (1977); People v Federico, 146 Mich App 776, 794; 381 NW2d 819 (1985), lv den 425 Mich 867 (1986). Not only could an appropriate instruction have obviated any possible prejudice now raised by defendants on appeal, but our refusal to review the remarks will not result in a miscarriage of justice.
Looking at the remarks as a whole, pot in isolation, and evaluating them in light of the evidence presented at trial, we do not believe they are so improper as to warrant reversal even had an objection been made. A prosecutor is not prohibited from making fair comments on the evidence, including arguing the credibility of the witnesses when there is conflicting evidence and the question of a defendant’s guilt or innocence turns on which witness is believed. People v Flanagan, 129 Mich App 786, 795-796; 342 NW2d 609 (1983). We find no manifest injustice and believe that defendants were not denied fair trials.
Defendant Kirkpatrick also asserts as error the admission in her trial of testimony of her prior sexual conduct with defendant Foreman. At trial, Melinda Foreman testified that, one evening after she and defendant Jon Foreman had gone to bed, she was awakened by defendant Kirkpatrick stroking her husband’s penis at the foot of the bed. This is. the incident which led Melinda Foreman to file for divorce. Subsequently, defendants began living together and were living together while the children were visiting with their father.
Defendant Kirkpatrick argues that this testimony, as well as the testimony that Kirkpatrick had moved in with the Foremans because her parents had kicked her out of their house and that Melinda struggled mentally and financially to cope after her husband and Kirkpatrick started their relationship, was clearly irrelevant and collateral to the charges at issue. Kirkpatrick argues that the effect of this testimony was to portray her as a "bad person” and preclude an objective determination of her guilt or innocence of the crimes charged. We disagree.
While we find the evidence to be marginally relevant, we do not find its admission constitutes grounds for reversal. The evidence tended to show the nature of Jon Foreman’s relationship with his eighteen-year-old niece and how they came to live together. It also served to corroborate the boy’s testimony that he witnessed (in fact, he was forced to watch) defendants engaged in sexual relations. Given that the testimony at trial included considerable explicit detail of the sexual abuse perpetrated, we do not see how this testimony could have unduly prejudiced defendant Kirkpatrick. It was briefly presented and no specific reference was made to it in the prosecutor’s closing argument. Thus, even if admission of the testimony could be deemed error, any error was harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972); People v Green, 131 Mich App 232, 237; 345 NW2d 676 (1983).
Defendant Kirkpatrick’s remaining issue concerns her sentence. Kirkpatrick argues that the trial judge abused his sentencing discretion when he imposed the same sentences on her as on defendant Foreman. Specifically, Kirkpatrick argues that by imposing the same sentences the trial judge failed to individualize her sentence by tailoring it to meet the circumstances of the case and the defendant. People v Coles, 417 Mich 523, 537; 339 NW2d 440 (1983).
We find that Kirkpatrick’s sentence was sufficiently individualized. It was not improper for the trial judge to mention the sentence he gave Jon Foreman as their convictions arose out of the same events. The trial court noted that these were serious sexual crimes Kirkpatrick was convicted of and that the crimes involved two very young children. The trial court further noted that the children were now in therapy and that their lives will be forever changed by the activities of this defendant and others. We find no abuse of discretion in the trial judge’s sentencing of Kirkpatrick.
The convictions and sentences of defendants Jon Foreman and Wendy Kay Kirkpatrick are affirmed.
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Champlin, J.
In 1868 defendant Oliver and one George J. Robinson were copartners, carrying on business at Ossineke, Michigan. At this time and previously, plaintiff had been at work for the partners in carrying on their lumbering operations, and had and claimed to own certain personal property, consisting of horses, oxen,wagons, sleighs, chains, blankets, etc., etc., which the firm of Oliver & Robinson took from his possession by virtue of a writ of replevin. The next step was an arbitration entered into by plaintiff and by Robinson in behalf of the firm. The submission was signed by McArthur, and in the firm name, by Robinson, and was of all actions and causes of action, suits, claims and demands whatsoever, then pending, existing or held by and between each other. The submission does not appear to have been under seal. The arbitrators chosen were Obed Smith and True P. Tucker. Witnesses were produced before these arbitrators, and among those who appeared and were sworn and testified in behalf of the firm was the defendant David D. Oliver. The arbitrators made the following award:
“ The arbitration appointed to settle and determine the matter and differences between George Robinson and David D. Oliver, composing the firm of Robinson & Oliver of the one part, and Dougal McArthur of the other part, do hereby adjudge and determine as follows, to-wit:
1st. That the property consisting of horses, oxen, harness, sleighs, wagón, chains, blankets, cow and calf, and all other goods and chattels which the said Robinson & Oliver took from said Dougal McArthur by virtue of a writ of replevin, was legally held, and the right of possession and ownership of said property was in and did belong to said Dougal McArthur, and that the said Dougal McArthur do have restitution of said property, and we said arbitrators,' find the value of said property to be two thousand four hundred and three dollars. We also find the damages to said Dougal McArthur, by reason of said taking and replevying, to be .seven hundred dollars.
And we further find and determine that said Robinson & Oliver are justly indebted to said Dougal McArthur for labor and work done and for balance of accounts, the sum of two thousand four hundred and forty dollars.
Given under our hands this 17th day of May, 1869, at Alpena.
Obed Smith,
True P. Tucker.”
After the award was made the plaintiff served the award on each of the partners, and demanded the property referred to therein, but they did not deliver it to him; and on the 20th day of October, 1869, he commenced this suit in trover against the firm. December 15th, 1869, Robinson appeared in the suit by his attorneys, Tuttle & Holmes. The declaration was filed January 15th, 1870, and on the 20th of January, 1870, Tuttle & Holmes put in a plea of general issue for both defendants. May 28th, 187J, the attorneys for the respective parties stipulated that the plaintiff might take judgment for four thousand dollars damages as the amount agreed upon between the parties, and on the same day a judgment was rendered for that amount.
Executions were issued upon this judgment, upon one of which defendant Robinson was arrested and confined in jail over nine months, and until he was discharged from imprisonment under the Act for the relief of poor debtors from imprisonment, which occurred sometime in November, 1875. On the 9th of May, 1876, defendant Oliver having also been arrested upon execution issued upon the judgment, applied to the court to vacate and set aside the judgment, for reasons stated in the application, the main ground of which was that he had never employed Tuttle & Holmes as his attorneys, and never authorized them to appear or plead for him, and that the stipulation for judgment was wholly unauthorized, and on the 29th day of May, 1876, the judgment was vacated and set aside as to him, with leave to plead in twenty days. He put in a plea of general issue June 1,1876. On August 28th, 1878, the creditors of Robinson filed a petition in the district court of the United States for the Eastern district of Michigan, for the purpose of having him adjudicated a bankrupt, and such proceedings were thereupon had that he received a discharge in bankruptcy on the 15th day of May, 1879. It also appears from the record in this case that Mr. Oliver sold out his rights and interest in the firm of Oliver & Robinson in September, 1868, but it is not shown when the firm business was settled up, if ever.
On the 12th day of August, 1881, the defendant George J. Robinson, by Alfred E. Ilawes, his attorney, interposed a plea puis darrein continuance, setting up his discharge in bankruptcy as a bar to the action. The jury, under the instruction of the court, found a verdict in favor of plaintiff, against defendant Oliver, and in favor of defendant Robinson, by reason of his having been discharged in bankruptcy.
The defendant Oliver brings the case here upon writ of ■error, and assigns as the first cause that “ it appears from the record that the circuit court did, on the 29th day of May, 1876, set aside the judgment rendered in said cause on the 28th day of May, 1874, as to the defendant Oliver, leaving the said judgment in full force as to the defendant George J. Robinson, which order stands in full force and unreversed and by the laws of the land no other judgment could be lawfully rendered in said cause.” Whether or not the order vacating the judgment as to the defendant Oliver left the judgment in full force as to defendant Robinson, without some further action of the court, it is unnecessary to determine. The subsequent proceedings show that both court and counsel for defendants regarded and treated the judgment as vacated as to both defendants up to the time of the trial. Both defendants have pleaded to the action since the vacation of the judgment; and their pleas do not rely upon the former judgment as a bar. Briggs v. Milburn 40 Mich. 512.
The second assignment of error is based upon the assumption that the order of the circuit court setting aside the judgment as to defendant Oliver wholly merged the claim for which this suit was brought in the judgment then remain- rag against the defendant George J. Robinson, and extinguished the claim as to defendant Oliver. But this assumption is not supported by the facts. Although the language of the order in terms extended only to the vacation of the judgment as to the defendant Oliver, yet court and counsel for the parties appear to have treated it as vacating the judgment as to both defendants; and we have no doubt but that such was its legal effect. We discover nothing in the record tending to prove that the plaintiff made any effort to enforce the judgment against defendant Robinson after the order vacating it- was entered.-
Neither do we perceive any foundation in the record for the third assignment of error, to the effect that the court proceeded to try said cause when there was no issue of fact therein to be tried' at the date of the last trial thereof. So far as defendant Oliver is concerned, the issues of fact stood upon the declaration and his plea of general issue; and, as to defendant Robinson, it stood upon the plea in bar interposed by him setting up his discharge in bankruptcy.
The fourth alleged error is that the award offered in evidence did not and could not convey such title to the property mentioned therein to said McArthur as would, by the law of the land, entitle him to maintain the suit. The facts of this case do not bring it within that class where the arbitrators have awarded that the title of personal property shall pass from one party and become vested in another upon the happening of some contingency, or the performing of some condition, ■such as on delivery of the property by one party to the -other, or on payment. Here the arbitrators found that the property in dispute was legally held, and the right of ownership and possession was in and belonged to McArthur, and •that he should have restitution; and the award was conclusive upon the question of ownership and right of possession.
We do not think that the defendant Oliver was prejudiced by that portion of the charge to which our attention is directed by the fifth assignment of error; standing alone, it might be objectionable, but in connection with the other portions of the charge upon the subject of ratification, we cannot see that it was prejudicial to defendant. Neither could it possibly injure defendant, for the court to refuse to charge the jury that the plaintiff could only recover by reason of the award, and not on account of previous ownership. As before stated, the award was conclusive upon the ownership, and evidence that plaintiff was the owner previous to the award was wholly immaterial; but its admission could in no way injuriously affect the defendant; and a refusal to charge as requested would not be such error as would warrant a reversal, under repeated rulings of this Court. This action is not brought to recover the amount of the penalty of the submission bond, and there was no error in refusing to charge that plaintiff could not recover more than the penalty of that bond.
The judgment is affirmed.
The other Justices concurred.
The instruction upon which the fifth assignment of error was based -was as follows : “And although Mr. Oliver may not have known in regard to the details of the proceedings, and may not have taken any active part in it, yet if he was a partner of Mr. Robinson, and the claim was made on behalf of the firm, so far as appears here, Mr. Oliver would be bound by the acts of his partner, especially unless he repudiated it in a proper way.” The trial judge, in connection with this, and in referring to the suit in replevin begun by Robinson and Oliver against McArthur, had said that one partner may institute a suit in behalf of both ; but he had added, when speaking of the subsequent submission of' the dispute to arbitration, that, while Oliver was not legally bound by the submission though made in the firm name, yet if he acquiesced in it — did not repudiate the act, but sanctioned it — acted under it, and went on with the arbitration as a submission of partnership matters, it would be a ratification of the act that would bind him. His saying that he was. not to be subjected to any liability in consequence of the arbitration, but that it was to be a matter between Robinson and McArthur, was not sufficient, because there were no matters between Robinson and McArthur, except those partnership matters which Robinson alone could not submit to arbitration. Nothing less than a repudiation of the whole thing would protect Oliver if he did not mean that the arbitration should, be effectual against him. | [
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Champlin, J.
Relator filed a petition praying that a mandamus issue to the respondent to 'compel the township board of the township of Rogers to include the amount of a certain bond and nine interest coupons in the township taxes to be raised, for the purpose of paying such bond and coupons. He alleges that he is the holder, and that the bond and interest coupons were issued by the township of Rogers under and in pursuance of Act No. 98 of the Session Laws of 1867, to bear the expense of the construction of certain bridges in the township, being one of an issue of three thousand dollars for bridges in said township ; and that that sum was within the limit which could lawfully be raised for that purpose; that the bond and coupons constituted a valid charge against the township; that the sums for which they were issued were duly voted by the electors of the town, and the same were in all respects legally authorized by the proper authorities of the township; that the bonds are in all respects legal and valid and have never been paid ; that relator is a bona fide holder for value before maturity; that he has presented the bond and coupons for payment, and that payment has been refused, and the township board has made no provision for the payment thereof, and they refuse to take any steps for spreading the amount on the tax-roll so that the money can be collected for payment of the bond and coupons; that the township caused the coupon first falling due to be paid without objection.
Respondent answered and denied, on information and belief, that the township ever issued the bond, or that the township treasurer ever signed it; that no money was ever paid to the township treasurer as and for the consideration of the bond; that certain pretended issufes of bonds and coupons were made payable to Alvin Williams, or bearer, for the purpose of having him negotiate them; that • the blank forms were left lying loosely about the township office of the township of Rogers; and that there was a large over-issue of such pretended bonds; that the township never received any value for the bonds or coupons. The respondent neither admits nor denies that relator is the owner and holder of the bond ; denies that the bond was issued in pursuance of Act No. 98; avers, on information and belief, that the same was illegally and unlawfully issued; denies that the bond and coupons constitute a charge against the township, or that the sums for which the bonds were issued were duly voted by the electors of the township; or that the same were authorized by the proper authorities of the township; denies that relator is a bona fide holder of the bond and coupons; neither admits nor denies that he has presented the bond at the bank for payment; admits presentation to the township board, and demand and refusal of payment; denies that the township paid one of the coupons; denies that legal notice of the intention to vote by ballot on a tax or loan, in pursuance of Act No. 98, was ever given ; attaches a copy of all the records of the proceedings of the township relating to the issuing of bonds under that Act; insists that the bond is illegal and void, first, because it is made payable more than ten years after its date; second, because it is made payable at the First National Bank of Detroit, and outside of the limits of the township of Bogers in the county Presque Isle.
The copy of the records of the proceedings attached to respondent’s answer is as follows : .
Copy of notice posted in five of the most conspicuous places in the township of Bogers :
To the Qualified Electors of the Township of Bogers:
Take notice, at the request of ten or more freeholders of the township of Bogers, a special township meeting is hereby .called to be held at the school-house, in the village of Bogers City, on Wednesday, the 23d day of August, 1871, at nine o’clock in the forenoon, to submit, for approval or rejection by the voters of said township, the question of levying a tax ox one per cent, on the assessed valuation of the real and personal estate of said township, and also to vote upon the question of raising three thousand dollars ($3000.00) in bonds of the township of Bogers, running for the period of ten years and bearing ten per cent, interest, for the purpose of building bridges across several of the streams, water-courses, and swamps within the limits of said township; said tax and loan being in accordance with an Act passed by the Legislature of this State and approved March 25th, 1867.
Dated at Bogers Git/y this 8th day of August, 1871.
F. D. Larke, Town Clerk, Ad Interim.
At a special township meeting held in accordance with notices posted previously, according to law, and recorded herein, at the school-house, in the village of Bogers City, in the county of Presque, Isle, Michigan, on the 23d day of August, 1871, at 9 a. m., a ballot was cast to vote upon the propriety of raising a loan of $3000.00, running for ten years and ■ bearing ten per cent, interest, for the purpose of building bridges over the various streams, water-courses, and swamps, in the township of Bogers; also upon the advisability of raising or levying a tax of one per cent, upon the assessed valuation of real and personal estate of the township of Bogers for the aforesaid purposes. Present: John Morrison, Chas. Pfauenschmidt, and John Paul Mayer, inspectors of election ; Fred. Denny Larke, acting township clerk, and William H. Buchanan, clerk to the inspectors. Moved by Fred. Denny Larke, and seconded by John Morrison, that Charles Pfauenschmidt be appointed chairman of this meeting, and afterwards carried by acclamation. Voting commenced; board adjourned at 12 noon and re-assembled at 1 p. m. ; at 3 p. h. notice was given that the polls would be closed at 4 p. m., at, which time, the ballots having been canvassed and compared, the following result was obtained :
Total number of votes pilled,......45
For the loan, 45
For the tax,...... ---45
Majority for loan,.........45
Majority for tax,..........45
Inspectors of election:
John Morrison.
Charles Peauensohmidt.
J. Paul Mater.
Clerk of board:
Wm. H. Buchanan.
Acting town clerk:
Fred. Denny Larke.
Copy of Affidavit.
State of Michigan, County of Presque Isle — ss.: J. Paul Mayer, being duly sworn, deposes and says, to wit:
That on Tuesday, the 8th day of August, 1871, he posted in five of the most public places in the township of Rogers-five notices calling for a .special township meeting to be held in the school-house, in the village of Rogers City, on Wednesday, the 23d day of August, 1871, at nine o’clock in the forenoon, to submit to the approval or rejection of the voters of the township of Rogers the proposition for the levying of a tax of ten mills on the assessed valuation of the real and personal estate of the township of Rogers, and also for the issue of bonds of said township to the amount of $3000.00, said bonds to run for the period of ten years, and to bear ten per cent, annual interest, said loan and tax being for the purpose of building bridges over and across the several streams,, water-courses and swamps within the limits of said township.
J. Paul Mayer.
Sworn and subscribed before me this 23d day of August,. .1871, a notary public for the county of Alpena.
Fred. Denny Larke, Notary Public.
Issues were framed, to be tried by a jury, as follows:
First. Was bond No. 41 (the one mentioned in relator’s petition) of the township of Rogers, Presque Isle county, issued by authority of a vote of the people of said township .at an election called for such purpose, under Act No. 98 of •the Session Laws of 1867, for the purpose of constructing or repairing of bridges in said township ?
Second. Was said bond signed by Christian Bahr, treasurer of said township ?
Third. Was the coupon of January 1st, 1873, attached to said bond, paid by said township? *
Fourth. Has the township of Rogers recognized its liability on and for said bond, giving the public a right to believe the same was a valid claim against «aid township ?
And such issues were afterward tried in the circuit court for the county of Bay, and the jury found upon such issues .as follows:
First. As to the first issue, they find that bond (No. 41) number forty-one, mentioned in the relator’s petition, was issued by authority of a vote of the people of said township, .at an election called for such purpose, and that a true copy of the notice of said election, and a true copy of the affidavit ■of the posting of notice of said election, and of the proceedings had at such election, are attached to the answer of the respondent in this case, and that issue of said bonds was for •the purpose of repairing and constructing bridges in said .township.
Second. As to the second issue, they find that said bond was signed by Christian Bahr, treasurer of said township of Rogers.
Third. As to the third issue, they find that coupons •attached to the bonds of this issue were received by the treasurer of said township in payment of taxes; but whether the ■coupon of 1873, attached to bond number forty-one (41) was -so received by said treasurer in jjayment of taxes, there is no direct evidence, the evidence showing, however, that such coupons so paid in are usually destroyed in presence of the ■township board.
Foxxrth. As to the fourth issue, they say that there is no evidence before them as to how the township of Rogers has treated said bonds, and therefore they make no finding as to that issue.
The statute referred to authorized any township in the State to vote for and raise by tax a sum not exceeding one per cent, of the assessed value of the real and personal estate for the preceding year, for the purpose of rebuilding and repairing bridges. It also authorized them to borrow money for such purposes upon the terms and conditions named in the Act. The conditions were, that the aggregate of such loans should not exceed three per cent, of the assessed valuation; that no larger sum than one per cent, oh the valuation should be raised in any one year to pay interest or principal; the bonds were to be issued by the township board; the voters were to direct the time of payment, in no case exceeding ten years from the date of bond, and the interest was not to exceed ten per cent. The statute authorized the township clerk, upon the application of ten legal voters who were freeholders, to give notice two weeks previous to the annual or special meeting, of the intention to vote by ballot on a tax or loan, and at such meeting the question was required to be submitted to the voters, and the majority voting were “ to determine as to raising a tax, or mal&ing a loan for the purpose” specified.
It is plain that the statute did not contemplate or authorize the township to vote a tax and a loan for the same purpose at the same time. They could vote to raise the money by tax, not exceeding one per cent, on the valuation, or they could vote to raise it by loan, and a majority of the voters were to decide by ballot which method should be adopted. According to the township records returned, the question whether the money should be raised by tax or loan was not submitted to the voters. Forty-five votes were cast, and forty-five voted for a loan, and forty-five voted for tax. Every voter voted that the money should be raised by tax, and also by a loan— one vote neutralized the other, and no determination whatever was reached, whether the money should be raised by tax or by loan. Each had the same majority. The vote was a tie.
It appears also that Fred. Denny Larke was a man addicted to office. He signed the notice of a special township meeting as town clerk ad interim. At the election lie acted as one of the clerks of election; he administered an oath to J. Paul Mayer, to an affidavit of posting the notices, as a notary public for the county of Alpena; and three months later he executed the bond in question as supervisor. So far as this record shows, the special township meeting was a nullity. Such meetings can only be held on the order of the township board, on a request in writing, signed by twelve electors of the township, specifying the purpose. The order of the township board must specify the purpose of the meeting and be posted up in three of the most public places in the township, and the order must be left with the township clerk within two days after it is made, and he must record the same. The record must show all the statutory requirements to have been complied with.
It is claimed however, that the finding of the jury upon the first issue of fact submitted to them is conclusive that all preliminaries had been complied with, and also as to the legality of the proceedings and vote. The issues were not so framed as to determine material facts, and the first question submitted was-one mbre of law than of fact. Had,the jury been called upon to find the material facts the law would have determined, upon such facts, whether the bonds were issued by a vote of the people; and hence when -they find as to the first issue, that the bond was issued by authority of a vote of the people of the township, at an election called for that purpose, and further find that a true copy of the notice and of the affidavit of posting, and of the proceedings had at the election, are attached to the return, they contradict their finding that the bond was issued by authority of a vote of the people, because these proceedings show as before stated, that no determination was arrived at by the vote, and such vote conferred no authority to issue any bonds.
The case when presented for our consideration at the hearing was in this condition. The respondent had denied in its answer that the township had ever issued the bond in question, or that its treasurer had signed it; it denied that the bond was issued in pursuance of Act No. 98 ; it denied that the township had paid one of the coupons attached to the bond, but avers that if it did it was done through inadvertence and ignoran ce of facts stated in the answer; it denies that.the sums for whicli the bonds were drawn and issued were duly voted by the electors of the township. Upon the facts embraced in the foregoing denials issues were framed and tried before a jury as above stated, and as to the first fact their finding was contradictory and inconclusive. The second fact they found against respondent, and they failed to find as to the third and fourth facts submitted to them.
There were other material issues made by the pleadings which were not submitted to the jury, viz.; The respondent denied that the relator was a bona fide holder of the' bond? and averred that the bond and coupons belonged to George J. Robinson or his wife Eliza, and that Robinson had notice of the invalidity of the bond when he purchased it; it also denied that the township had ever received any value for the bond in question; and it asserted that it-had been illegally and unlawfully issued in the manner specified and described in the answer; and it further asserted that the bond was unauthorized by the proper authority of the township; it also asserted that no legal notice of the meeting to vote on the question of issuing the bonds ever was given, and no legal proof of such notice made. These facts the relator did not see fit to send to a jury, and must therefore be considered as admitting the truth of such facts. People v. Ryan 17 Mich. 159; People v. Commissioners &c., 19 Mich. 473; Pack v. Supervisors of Presque Isle County 36 Mich. 377.
The statute which provides that in case a verdict shall be found for the person suing out the writ, a peremptory man-damns shall be granted to him without delay, does not apply where issues material to the relator’s right to the writ are not submitted to the jury and determined in his favor. How. Stat. § 8666. The questions whether this bond is a binding obligation .of the town, and whether the relator is protected as a bona fide purchaser of the same, are proper questions for a trial court, and should he recover a judgment there, it is fair to presume that he will have no occasion to require the assistance of this Court. Act No. 63, Pub. Acts 1883.
We content ourselves therefore, with saying that as the case has developed, we are satisfied that it-is not a proper one for this remedy, and the writ is therefore denied.
The other Justices concurred. | [
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Sherwood, J.
The respondent is recorder of the village of Hudson. The petition is for a mandamus to compel him, as such officer, to advertise and sell certain lands in said village for delinquent taxes for the year 1882. By section 45 of the charter of the village of Hudson it is made the duty of the recorder of the village to advertise and make sale of land of delinquents for such taxes under the direction of the common council.
The petition in this case is based upon two affidavits made by the president and marshal of said village. From these it appears that on the fifth day of April, 1882, the common council of Hudson passed a resolution ordering the paving of West Main street, in said village; that the same was regularly passed by said council in pursuance of the ordinances of said village. It further appears that in May, 1882, contracts for the material and labor, in paving said street, were duly made and that such pavement was completed under said contracts thus made; that the expense thereof was assessed as a special tax upon the real estate abutting on said street, in proportion to the frontage; and that said taxes with other taxes, to the amount of three thousand dollars, were duly spread upon the assessment roll for the year 1882, under a resolution of the council passed at a meeting held July 13th of that year; that the assessment roll, with the proper warrant thereto attached, was placed in the hands of the marshal of said village for the collection of the taxes. The marshal made return of his warrant, with the tax-roll annexed, to the recorder of said village, on the sixteenth day of April, 1883, from which it appears that quite a considerable amount of the taxes were not collected, and were returned delinquent. On the twenty-third of April, 1883, the common council passed a resolution directing the recorder to proceed to advertise and sell the lands of these delinquents; and the recorder refuses to obey the order of the council, or to proceed in the matter, as required by the statute; and seeks to justify his refusal upon the following grounds, as stated in the language of his return: because, “ being advised and believing that the said proceedings of the said common council in ordering the construction of said pavement, and assessing and levying such taxes to pay the expense thereof, and in ordering a sale of the lands for the collection thereof, as aforesaid, are irregular, not in accoi’dance with the charter of said village and the ordinances, and are illegal and void;” and then follows, with twenty reasons, why he came to this conclusion.
It appears from the record that the pavement ordered was placed under contracts, and has been made and completed. There is no complaint that the tax therefor was unreasonable in amount; and it appears that a large portion of the same was paid before the marshal made his return, and that some has been paid since. There is no evidence that the delinquent tax-payers have ever taken any legal steps to enjoin the collection of or to' test the validity of the tax assessed. In fact, there is no showing here that they even approve of the action taken by the recorder in this ease. The respondent makes no claim that the village had not the power, under its charter, to authorize the work done and levy the tax therefor, which he is directed to collect. Nor does he question the general power of the council to make such direction, nor that there is any informality or illegality in the statement or return itself made by the marshal, and which constitutes the basis of the action required of him by the village council. The action required is strictly ministerial in its character, and if a proper showing has been made by the council, it becomes the duty of this Court to grant the writ prayed for.
The recorder, in proceeding under the direction of the council, had no reason to fear personal liability. The proceedings were sufficiently regular and fair on their face to protect ministerial action.
The sale to be made was of real and not personal estate, and had he advertised as directed he could not know that a sale would become necessary. Some had paid their tax voluntarily after the marshal’s return ; the rest might make payment before the day of sale. The statute makes it. the duty of the recorder to collect, and, if necessary, make sale of the delinquent’s property for that purpose; and not to defeat such collection and make defense for him in a court of law.
We do not think the recorder justified, whether so advised or not, in setting at defiance the action of the common council by refusing to obey their official direction in a matter of this kind. The council are not supposed to act unadvisedly. If he may do so in this case by raising questions of legality, he may in any other. His business is to proceed as ordered, and let individual tax-payers make their own objections and contests. When they do that the court may require them to pay what is just, if anything. Possibly they may make no objections.
The issuing of the writ in this case will deprive no one of any right and take away no defense. It will put the village in a position to collect the tax if it can.
We have decided heretofore that certiorari is not a proper remedy in this class of cases; and all the objections to allowing tax proceedings to be reviewed on certiorari are applicable here, and we therefore decline to consider the regularity 'of the tax proceedings on this motion. See Whitbeck v. Hudson 50 Mich. 86; Tucker v. Parker, Drain Commissioner of Chesterfield, 50 Mich. 5.
The writ must be allowed, with costs to petitioner.
The other Justices concurred. | [
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Sherwood, J.
Plaintiffs leased to the defendant two rooms on the ground floor of a building owned by them on Jefferson avenue, in Detroit, for $500 per year, payable monthly in advance. It was provided in the lease that if, at or before the expiration of the term, the plaintiffs should find a tenant for the whole building, Smith might continue in possession of the whole building, taking a lease therefor for five years, at a rental of $1500 per year, and with a further provision as follows:
“It is further understood and agreed that in case the said parties of the first part do not find a tenant for the whole building at or before the expiration of the within lease, the said party of the second part can have said rooms within leased for another year, at the same price, to-wit, $500 per year, and upon terms and conditions like those expressed in the within lease, and that the same privilege is hereby given to the said party of the second part each year until April 1st, 1886, if the said parties of the first part do not find a tenant for the whole of said building within that time.”
Up to April 1st, 1882, no tenant for the whole building had been found. Smith, however, continued to occupy his two rooms. In January, 1883, the plaintiffs made a lease of the whole building to Marvin Preston, and on the 13th of March following the plaintiffs gave Smith notice to quit on or before April 1st, 1883. Smith refused to leave, and summary proceedings were had against him by the plaintiffs before a circuit court commissioner to obtain possession of the rooms, and in which possession was awarded to the plaintiffs. The defendant appealed to the circuit court, where, upon a heai’ing had, the judgment before the commissioner was reversed and the proceedings dismissed, and from this judgment the plaintiffs appealed to this Court.
The only questions raised are: Was any notice to quit necessary before taking proceedings to remove the tenant? and if so, what notice was required ? The defendant was a tenant from year to year until the plaintiffs rented the whole premises to some other person, as they might do under the contract between the parties, and after that time became a tenant at will. Such being the relation of the parties, he was, under the decision of this Court, entitled to notice to quit, under How. Stat. § 5774. In such cases a notice of three months is necessary unless the rent received is payable at shorter intervals. Under the agreement between the parties it was made payable monthly; a month’s notice, ending with the year, under the agreement of the parties, therefore became necessary, and should have been given the defendant before taking the proceedings had in this case. Woodrow v. Michael 13 Mich. 187; Shaw v. Hoffman 25 Mich. 172.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Complainant, who owns a Park Lot in Detroit, filed his bill as owner in possession to remove a cloud on his title, set up by the city of Detroit, as purchaser at a sale under special assessment for a lateral sewer laid through certain .land adjoining his,' whieh appears to have been intended to make a part of an ultirnate alley, but which is not now an alley in any proper sense of the term. The bill is in accordance with the statute which authorizes a party in possession, and owning title, to have illegal outstanding claims litigated and canceled.
It is not seriously claimed that the city has any title, or that the assessment sale was valid. But it is urged that in some way or other the drain will probably become useful hereafter, when complainant’s land is subdivided and built up. But we can conceive no reason for such an argument here. This is not a bill to enjoin the levying or collection of a tax which complainant ought to pay, and has no good reason to contest. It is a case where a title is set up against him which he cannot compel the city to prosecute at law, and which has no legal or equitable basis on which it can ever be made to stand. There is no process by which it can be made efficacious. Even if there were any reason, which we fail to find, why complainant ought to have contributed to this drain, he cannot be deprived of his land or have this void convey.ance held over him for any such purpose.
The decree in complainant’s favor must be affirmed with •costs.
The other Justices concurred. | [
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Campbell, J.
This was a bill filed by a judgment creditor after return of execution unsatisfied, to reach property claimed by complainant to have been fraudulently transferred by the debtors, Foxen and Newman, to the cigar company. The court below granted a judgment and execution against the company, and an appeal is brought from that judgment.
The proceeding is somewhat peculiar in form, but appellant raised no questions differing from those on an ordinary bill, and we need consider no others.
The case charged was, in brief, that complainant was a creditor of Foxen, Newman & Co., (of which Foxen and Newman were the only partners,) in September, 1880, and somewhat earlier, by debts not then matured; that on the 2nd day of September, 1880, Foxen having disappeared the night before, and the firm being known to be insolvent, Newman, who intended to make an assignment, was persuaded by Mr. McLean, the manager of the cigar company, to sell him about $10,000 of choice tobacco, (in which the firm were wholesale dealers,) which he selected at his option from the most desirable stock, at fifty cents on the dollar of its cost, to raise money enough to cover immediate needs for bills becoming due, it being arranged that Newman should have a sum of $1000 in case things went smoothly and no trouble was made by creditors. The arrangement was to be kept from creditors, and if Foxen should come back and dissent, then it was to be rescinded.
This is the transaction as complained of. The rest of the case was made up of subsequent dealings only significant in their bearing upon this.
The witnesses sworn upon the merits of this dispute were Newman, McLean, and a bookkeeper named McCain. From a fair comparison of their testimony we are satisfied that the transaction was not a fraudulent one. Without going at large into the facts, we think that the affair was substantially this:
It is entirely clear to us that neither Newman nor McLean had any idea that the firm was not perfectly solvent. It was in good credit, and Foxen was supposed to be wealthy. He' was financial manager, and Newman had little to do with that part of the business. Foxen’s sudden disappearance led to surmises of various kinds among different persons, and made it impossible for Newman to get renewals of the notes falling due at that time. He became bewildered, and went to find Mr. Caplis, a friend of Foxen’s, to get advice what to do. McCain inferred that he meant to make an assignment, and McLean being told of this and where he had gone, went with McCain to the office of Mr. Caplis and advised Mr. Newman to make sale of enough tobacco to tide over present necessities. A sale was then agreed upon, and McLean purchased tobacco to the amount of about $5800, as alleged and shown, at less than the cost. Just how much less is left in some doubt, but from Newman’s and McLean’s testimony the price paid was not far from 65 per cent. The invoice books-were not put in evidence and there was no satisfactory evidence of local value at the time. We think the testimony also indicates that McLean agreed, or had some understanding, that if Foxen returned and objected, he was willing to have the whole contract rescinded and the goods and price respectively returned.- We are satisfied this was all the agreement, and that no personal inducement was given to Newman to consent to it, and no fraud intended by any one. Newman used at once, including such funds as were on hand, more money than the entire price to pay notes falling due, and the business went on as usual, and no knowledge of insolvency came to either Newman or McLean till afterwards.
On Foxen’s return a few days thereafter, he did make objection, but no attempt or offer was made by any one to return the- consideration, so as to rescind the bargain,' although the company afterwards made some further payments to avoid importunity and annoyance, and these subsequent advances are dwelt on as proof of a fraud in the bargain, not as between the parties, but as against creditors.
In our opinion the transaction was legal and proper. It was evidently the only way in which the ruin of an apparently solvent house could be prevented. Had the paper gone to protest, or had it become known generally that money had to be raised by forced, sale for cash to meet an emergency, not only would greater sacrifices have been probable, but it would have been certain to break up their credit. 'Secrecy was needed, not to deceive creditors, but to prevent sacrifices. It does not appear to us that McLean drove an unconscionably hard bargain, or meant to do any injustice, and it is by no means probable that any better sale could have been made. The testimony does not, we think, show any unusual breaking of assortments. We do not think the testimony bears out the allegations of fraud or of any secrecy, beyond what the credit of the firm required. Business went on as usual for some time, and we think there is nothing to impugn the good faith of this dealing.
It was claimed that McCain’s testimony shows some designed contrivance and fraud. It does, in some respects, apparently vary from that of the other witnesses. We think the view we have taken is the one which the most reliable portion of all the testimony in the case sustains. But were we in any doubt on the subject, as we are not, we do not think McCain’s testimony would solve it. We are inclined to think he meant to be a fair witness, but we find it almost impossible to tell from this record what was his real and intended testimony. Not only are the questions put to him grossly leading and suggestive, but they are frequently so complicated and involve so many inferences and assertions of counsel, that we cannot be sure how much of each question, in some important inquiries, the witness’ answer was meant to cover. It was taken without cross-examination, and is not in our view in any way to be preferred over the other proofs, or to be conclusive in settling serious differences, if they existed, as we think they do not exist to any great extent on matters which relate to the sale of September 2, 1880. A great deal of McCain’s testimony can only be accounted for as hearsay or inference from matters not sufficiently distinguished to separate knowledge from conjecture. The bulk of it is of such a character that without cross-examination it furnishes no adequate test of reliability. But taking it at its best, we see nothing in it which should change the result as against the other testimony and corroborating facts.
Having reached this conclusion on the merits, so that we can properly end the controversy, we pass over the equally fatal defect of want of parties, and perhaps some other faults, which, were the merits different, might.be rectified hereafter. The case has, in our view, no such equities as should disturb the rights of the cigar company.
The decree must be reversed and the bill dismissed, with costs of both courts.
The other Justices concurred. | [
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